January 28, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 28, 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 David Walkup, Chapel By The Sea, Melbourne Beach, Florida.

Commissioner Jackie Colon led the assembly in the Pledge of Allegiance.

REPORT, RE: FEDERAL CAPITAL EARMARKS FOR TRANSIT BUSES

County Manager Tom Jenkins stated Transit Services Director Jim Liesenfelt is requesting permission to approach Congress, both the Senate and the House, to appropriate money for bus replacement for Space Coast Area Transit (SCAT).

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize staff to pursue a federal capital earmark on the House side for transit bus replacements and an earmark on the Senate side by joining a coalition. Motion carried and ordered unanimously.

CONTINUATION OF PUBLIC HEARING, RE: ORDINANCE ON SPECIAL WATER
AND SEWER DISTRICT

County Attorney Scott Knox stated the Board is scheduled to have a public hearing on February 4, 2003 concerning the special water and sewer district; however, the advertisement for the ordinance has not been timely published; and requested the public hearing be continued to March 4, 2003.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue public hearing to consider ordinance on the special water and sewer district from February 4, 2003 to March 4, 2003 as the advertisement was not published in a timely manner. Motion carried and ordered unanimously.

REPORT, RE: ANNEXATION OF S.R. 405 ENTRANCE TO WINDOVER SUBDIVISION

Commissioner Scarborough stated tonight the Titusville City Council is considering an annexation of property on the S.R. 405 entrance to Windover Subdivision; the residents who may be adversely affected live in Brevard County; staff prepared a memorandum and circulated it to the Commissioners; and it met with residents in the proposed area and the attorney for the applicant. He noted City staff was at a meeting yesterday afternoon; and requested the County Manager send a letter to Titusville City Manager Tom Harmer, forwarding the County’s comments for the Council’s consideration at its meeting, including joint planning and the County’s participation since it has residents who are going to be impacted by the action.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct the County Manager to send a letter to Titusville City Manager Tom Harmer concerning the annexation of property on S.R. 405 entrance to Windover Subdivision as there are County residents who will be impacted by the City Council’s action. Motion carried and ordered unanimously.

RESOLUTION, RE: HONORING STATE SENATOR HOWARD FUTCH

Commissioner Pritchard read aloud a resolution honoring and remembering the late State Senator Howard Futch.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to honor and remember State Senator Howard Futch for his sacrifices as a member of our Armed Forces, for his dedication to his family and friends, for his pledge to always protect the children of Florida, and for his steadfast commitment to the citizens of Brevard County. Motion carried and ordered unanimously. (See page for Resolution No. 03-022.)

Commissioner Carlson stated Senator Futch will be sorely missed within the community and Tallahassee; what she appreciated the most about Senator Futch was his integrity that he approached all issues on and the respect he gave all sides of any given issue; sometimes Senator Futch did not appreciate some of the issues that came forward, but he treated everyone with respect; and he always kept his word. She noted the person Senator Futch was and the legacy he leaves behind are appreciative by the Board and community.

Commissioner Higgs stated she had the privilege of working with Senator Futch; he served the community and its people well; there are a number of projects that have been done in the County and particularly District 3 that are benefiting the people who live there; and Brevard County can be grateful that Senator Futch was its Senator and representative. She noted the people are going to miss Senator Futch as he did a great job.

Commissioner Scarborough advised Senator Futch was an easy person to approach; he empathized with the problems and tried to understand them; he spoke with a great deal of candor; everybody knew exactly how he felt about issues; and he was a unique individual.

Chairperson Colon stated the Board loved Senator Futch; he was not just someone it respected and looked up to; he was a true gentleman and loved his wife dearly; and she wants Ms. Futch and the children to know that the Commissioners will be keeping an eye on Ms. Futch since the children do not live in Brevard County. She noted Senator Futch will be missed; she is a Democrat; there are a lot of Democrats who also love Senator Futch; and he was the man that a lot of people seeked for wisdom. She stated prayers are with Ms. Futch and the children; and Senator Futch will forever be remembered in Brevard County.

Commissioner Pritchard stated Senator Futch was a mentor and friend; he was there to give counsel; as crusty as Senator Futch could be, it was with a love of everyone that he would provide information he felt was in the best interest of the community; and Senator Futch was there and accessible. He noted Senator Futch was a great guy and will be missed by all. He noted one of things he admired about Senator Futch was his ability to stand up for what he believed in, even though he felt it may be controversial; and he was among the first to talk about the problems with workers compensation, outrageous litigation, and jury settlements that made no sense.

REPORT, RE: MALPRACTICE INSURANCE AND INCREASED REGULATIONS

Commissioner Pritchard stated in the Florida TODAY Money Section C today, the headline reads, “Florida Doctors Walk Out in Rate Protest”; they are talking about malpractice insurance; it is going to reach a point where people are going to have a difficult time finding a physician as they will not be here anymore and will be in some other state; and the issue needs to be addressed soon. He noted another problem is increased regulations from certain people that are making a living out of having an issue; even though they say there is not going to be a problem enforcing the regulations, there is going to be a problem, including waterway regulations and the ability to construct marinas; and read a letter from Indian River Dredging dated January 26, 2003, as follows: “Dear Ron: Indian River Dredging has been in business since June 1990. We’ve worked on projects all over the East Coast of Florida. I’m sending you an attachment listing some of the projects we have done in the past 13 years. Our crew consists of three men and we usually hire six additional employees when the project demands a larger workforce. The company is based in Merritt Island on leased property fronting the Barge Canal. Although we are not a very large company, our contribution to support the local economy is substantial. We purchase various materials, fuel, oil, lumber, steel, turbidity boom, paint, and insurance, and hire local subcontractors. Our annual revenue of $500,000 when applied to Fishkind and Associates’ Workforce Multiplier of 2.2 equates to supporting 19.8 people and contributing $1.1 million to Brevard’s economy. All of this is coming to an end. We can no longer afford to wait for the permitting processes that are required before a simple dredge permit is issued. The permit must survive the Army Corps of Engineers, Department of Environmental Protection, St. John River Water Management District, U.S. Fish and Wildlife, and Save the Manatee Club. When we started in 1990 we saw very few manatees on job sites. Now the waters are thick with them. What I don’t understand is why my County government sits idle as more and more marine-oriented businesses are allowed to falter and fail. I know that dredging is necessary for safe, navigable channels. Manatees use those channels for their travel from point to point. The main corridor for manatee travel between the Banana and the Indian Rivers is the Barge Canal, which must be periodically maintenance dredged to prevent commercial barge/tug traffic. Where’s the data that says dredging is bad? All evidence indicates it is beneficial. As I stated before, Indian River Dredging will be forced out of business. But don’t worry about me. I’ve decided to start a new club, Save the Workers Club. Maybe we could sell license plates and make a living dealing with a real issue.” Commissioner Pritchard stated attached to the letter is a list of some of the jobs Indian River Dredging has done and subcontractors that were hired, two of which are no longer in business due to workers compensation and permitting delays; so the effect of workers compensation and too restrictive regulations is going to be felt in Brevard County and the marina economy; such economy in Florida is a $14.1 billion business, which is going to suffer; and the Board needs to address the issues before they become a crisis.

REPORT, RE: COMMENDATION RESOLUTIONS FOR YOUTH

Commissioner Carlson suggested when the youth come to Board meetings to receive resolutions that such meetings be the evening zoning meetings so that friends and family can attend. Chairperson Colon and Commissioner Pritchard stated it is a good idea. Commissioner Higgs inquired would those resolutions be limited to only the zoning meetings; with Commissioner Carlson responding no. Commissioner Carlson stated when there are large groups and family members involved they cannot always make the morning meetings.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to direct that commendation resolutions for the youth be placed on the zoning meeting agendas in the evening, when applicable, so that friends and family can attend such meetings. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH LINN AND LOUISE WALTERS, RE: REYNOLDS
ROAD EXTENSION B

County Manager Tom Jenkins requested Item III.A.8., Unpaved Road Agreement with Linn and Louise Walters, Re: Reynolds Road Extension B be withdrawn from the Agenda.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to withdraw unpaved road agreement with Linn and Louise Walters for Reynolds Road Extension B from the Agenda. Motion carried and ordered unanimously.

APPROVAL OF DRAFT, RE: COUNTYWIDE PUBLIC SCHOOL FACILITIES INTERLOCAL
PLANNING AGREEMENT

Commissioner Pritchard inquired what is the Brevard County Planning Coordination Committee.

Planning and Zoning Director Mel Scott responded the Committee consists of planners from all the municipalities and the County; the Committee now includes a School Board staff member; prior to the Joint Participation Agreement (JPA) being formulated, there was a forum to discuss the planning trends; and the State recognizes it is a good idea, so the County is giving the issue an elevated status through the JPA.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve the draft Countywide Public School Facilities Interlocal Planning Agreement. Motion carried and ordered unanimously.

RESOLUTION, RE: RECOGNIZING PALM BAY HIGH SCHOOL FOOTBALL TEAM

Chairperson Colon read aloud a resolution congratulating the Palm Bay High School Football Team on its 2002 State Championship Title.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution recognizing the achievements and outstanding season of the 2002 Palm Bay High School Football Team and offering congratulations on its State Championship Title and best wishes for a successful future. Motion carried and ordered unanimously. (See page for Resolution No. 03-023.)

Coach Dan Burke expressed appreciation to the Board for the Resolution and recognizing the Team; stated high school athletes today play 15 or 16 games and are in school 30 to 35 hours per week; and the Team has sacrificed and are deserving of the recognition. He introduced the coaches and players of the Team; stated there are two respected power ratings in the State; and the Team was rated number one in Florida of all classes.

Chairperson Colon presented the Resolution to the Palm Bay High School Football Team.

RESOLUTION, RE: COMMENDING HENRY MINNEBOO, JR.

Commissioner Scarborough stated Darwin once said, “It is not the strongest or the wisest, but the one who is most able to adapt to change is the survivor and the one that will succeed”; one of the things that is tremendously dynamic in the County is the constant changing of the number of Commissioners and the need to be able to adapt to the different personalities and desires of elected officials; and inquired how many total elected officials has Mr. Minneboo worked with.

Public Works Director Henry Minneboo responded 37 County Commissioners.

Commissioner Scarborough read aloud a resolution recognizing and commending Henry Minneboo, Jr. for his dedicated service to Brevard County citizens.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution recognizing and commending Henry Minneboo, Jr., and expressing sincere appreciation and thanks for his dedicated service to Brevard County citizens, and extending best wishes for good health and happiness during his retirement. Motion carried and ordered unanimously. (See page for Resolution No. 03-024.)

Mr. Minneboo stated after 37 County Commissioners and a million miles, it was time for him to go; he has enjoyed it; it has been real; and he is going to Disney World.

Commissioner Scarborough presented the Resolution to Mr. Minneboo.

RESOLUTION, RE: RECOGNIZING BREVARD COUNTY SCHOOL CROSSING GUARDS

Commissioner Higgs stated school crossing guards are like the mail service, rain, sleet, and snow they are out there; this week some areas of Brevard County had snow flurries; school crossing guards make sure children are safe; and the Board is proud such guards are part of the County family.

Commissioner Higgs read aloud a resolution recognizing and expressing appreciation to Brevard County School Crossing Guards.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution extending greetings and best wishes to all observing Brevard County School Crossing Guard Appreciation Week from February 2 through 8, 2003, and expressing appreciation for their dedicated service. Motion carried and ordered unanimously. (See page for Resolution No. 03-025.)

Commissioner Pritchard stated there are several crossing guards he passes by on a daily basis on Merritt Island; he has never gone by one that they did not wave or have a friendly smile; crossing guards are always there in the rain, sleet, etc.; they not only help the children cross the street, but grown children as well; and the school crossing guards perform a wonderful service and should be commended for their dedication and friendliness.

Public Safety Director Jack Parker stated school crossing guards are the unsung heroes of the agency; they are a spectacular group of people; Brevard County is lucky to have them; the crossing guards will drive to and from the work site twice per day for one hour or two of work without complaint; and they love working with children and keeping them safe. He noted in the last decade, school crossing guards have conducted more than one million children’s crossings without incident; crossing guards are a tremendous group of people; Brevard County is proud of them; the County receives calls from all over the State inquiring how the Brevard County School Crossing Guard Program functions so well; and the answer is it is due to the dedicated school crossing guards. He noted the crossing guards are wonderful people; and he is proud to be a part of them.

Commissioner Higgs presented the Resolution to representatives of the Brevard County School Crossing Guards.

RESOLUTION, RE: COMMENDING OSCAR HARRIS

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution recognizing and commending Oscar Harris, expressing appreciation for his dedicated service to Brevard County and its citizens, and extending best wishes for good health and happiness during his retirement. Motion carried and ordered unanimously. (See page for Resolution No. 03-026.)

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT ROBERT C. BROWN

Commissioner Pritchard stated the Eagle Scouts is a wonderful organization as it builds character and men; and read aloud a resolution recognizing and commending Robert C. Brown for attaining the rank of Eagle Scout.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and commending Robert C. Brown for attaining the rank of Eagle Scout, and offering congratulations and best wishes for a successful future. Motion carried and ordered unanimously. (See page for Resolution No. 03-027.)

Robert Brown explained his project renovating the barn, and introduced his family members.

Chairperson Colon congratulated Mr. Brown; stated it is an honor to attain the rank of Eagle Scout; and the Board is proud of Mr. Brown.

Commissioner Pritchard presented the Resolution to Mr. Brown.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SOLERNO
BOULEVARD TAVISTOCK, PHASE 1

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final engineering and preliminary plat approval for Solerno Boulevard Tavistock, Phase 1, subject to minor changes as applicable and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: CYPRESS WOODS, PHASE 2

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final plat approval for Cypress Woods, Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all required jurisdictional permits. Motion carried and ordered unanimously.

CONTRACT WITH THE VIERA COMPANY, RE: IMPROVEMENTS IN AUBURN
LAKES SUBDIVISION, PHASE 3

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Contract with The Viera Company for infrastructure improvements in Auburn Lakes Subdivision, Phase 3. Motion carried and ordered unanimously. (See page for Contract.)

CONTRACT MODIFICATION AGREEMENT WITH THE VIERA COMPANY, RE:
IMPROVEMENTS IN SUMMER LAKES SUBDIVISION, PHASE 1

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Contract Modification Agreement with The Viera Company for infrastructure improvements in Summer Lakes Subdivision, Phase 1. Motion carried and ordered unanimously. (See page for Contract Modification Agreement.)

EXTENSION AGREEMENT WITH PINEDA CROSSING CORPORATION, RE:
IMPROVEMENTS IN DEER LAKES SUBDIVISION, PHASE 2

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Extension Agreement with Pineda Crossing Corporation for infrastructure improvements in Deer Lakes Subdivision, Phase 2. Motion carried and ordered unanimously. (See page
for Extension Agreement.)

CONTRACT WITH JOYAL ENTERPRISES, INC., RE: IMPROVEMENTS IN AURORA
SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Contract with Joyal Enterprises, Inc. for infrastructure improvements in Aurora Subdivision. Motion carried and ordered unanimously. (See page for Contract.)

REQUEST BY CHERYL RIVER, RE: WAIVER TO ALLOW ADDITIONAL EASEMENT
OVER FLAG STEM

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant request by Cheryl River for a waiver to the Brevard County Code, Section 62-102, allowing a
second easement over a flag stem so application can be made for a second single-family building permit. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE REVISING CHAPTER 62, SECTION 62-102, ISSUANCE OF
SINGLE-FAMILY BUILDING PERMITS ON UNPAVED ROADS, FLAG STEMS,
AND EASEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve legislative intent and grant permission to advertise a public hearing to consider an ordinance revising Chapter 62, Section 62-102, issuance of single-family building permits on unpaved roads, flag stems, and easements. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE AMENDING CHAPTER 22, ARTICLE VI, DIVISIONS 1-4,
CONTRACTORS LICENSING

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve legislative intent and grant permission to advertise a public hearing to consider an ordinance amending Chapter 22, Article VI, Divisions 1-4, recognizing the need for licensing. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH EDWARD T. AND LINDA L. LYLES,
RE: PROPERTY IN SECTION 20, TOWNSHIP 30S., RANGE 38E.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Binding Development Plan Agreement with Edward T. and Linda L. Lyles concerning property in Section 20, Township 30S., Range 38E. Motion carried and ordered unanimously. (See page for Agreement.)

BINDING DEVELOPMENT PLAN AGREEMENT WITH HELEN E. McCARREN, RE:
PROPERTY IN SECTION 6, TOWNSHIP 24S., RANGE 36E.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Binding Development Plan Agreement with Helen E. McCarren concerning property in Section 6, Township 24S., Range 36E. Motion carried and ordered unanimously. (See page for Agreement.)

BINDING DEVELOPMENT PLAN AGREEMENT WITH KAREN S. STRATTAN, RE:
PROPERTY IN SECTION 23, TOWNSHIP 25S., RANGE 35E.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Binding Development Plan Agreement with Karen S. Strattan concerning property in Section 23, Township 25S., Range 35E. Motion carried and ordered unanimously. (See page for Agreement.)

TASK ORDER NO. 98-004-17 WITH BRPH ARCHITECTS/ENGINEERS, INC., RE:
ENGINEERING DESIGN SERVICES FOR MELBOURNE SHORES SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Task Order No. 98-004-17 with BRPH Architects/Engineers, Inc. in the amount of $78,800 for design of improvements within and near the Melbourne Shores Subdivision. Motion carried and ordered unanimously. (See page for Task Order No. 98-004-17.)

APPROVAL OF ADDITIONAL FUNDING AND SUPPLEMENTAL JOINT PARTICIPATION
AGREEMENT NO. 1 WITH DEPARTMENT OF TRANSPORTATION, RE: PALM
BAY ROAD WIDENING PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve additional funding for design of Palm Bay Road Widening Project, and execute Supplemental Joint Participation Agreement No. 1 with Department of Transportation. Motion carried and ordered unanimously. (See page for Supplemental Agreement No. 1.)

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, APPOINT SELECTION
AND NEGOTIATING COMMITTEES, AND EXECUTE AGREEMENTS, RE:
CONTINUING APPRAISAL SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise request for proposals for continuing appraisal services; appoint Ed Washburn, John Denninghoff, David Headley, Ron Jones, and Marsha Cantrell or their designees to the Selection Committee; appoint Tom Jenkins, Scott Knox, and John Denninghoff or their designees to the Negotiating Committee; authorize the Chairperson to execute the Agreements with appraisal firms selected; and authorize the County Manager or his designee to execute renewal options as outlined in the Agreements. Motion carried and ordered unanimously. (See pages for Agreements.)

AGREEMENT TO AMEND EXISTING AGREEMENT WITH TITUSVILLE POLICE ATHLETIC
LEAGUE, INC., AND BUDGET CHANGE REQUEST, RE: ROOF REPAIRS AND
UPGRADES TO GIBSON GYMNASIUM

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement to Amend Existing Agreement with Titusville Police Athletic League, Inc. to provide an additional $35,000 for Gibson Gym roof repairs and an additional $17,895 for specification upgrades to the Gibson Gym referendum project in Titusville; and authorize appropriate Budget Change Requests. Motion carried and ordered unanimously. (See pages for Agreement and Budget Change Requests.)

ACCEPTANCE OF 2002 FIRE GRANT, APPROVE MATCHING FUNDS, GRANT
PERMISSION TO BID, AND AUTHORIZE AWARD OF BID, RE: EQUIPMENT
FOR FIRE RESCUE PERSONNEL

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to accept the 2002 Fire Grant of $161,000; allocate $69,000 in local match from Fire Rescue Reserves; grant permission to bid for equipment for Fire Rescue personnel; and authorize award of bid to lowest qualified bidder. Motion carried and ordered unanimously.

AUTHORIZATION OF SOLE SOURCE PURCHASE, RE: MEDTRONIC PHYSIO-CONTROL
LIFE-PAK PARTS AND SUPPLIES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize sole source purchase from Medtronic Physio-Control of parts and supplies for the Medtronic Physio-Control Life-Pak Cardiac Defibrillators. Motion carried and ordered unanimously.

APPROVAL OF IAFF UNION AGREEMENT, RE: BREVARD COUNTY SUPERVISORY
FIRE RESCUE PERSONNEL

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize execution of the IAFF Chapter 2969 Union Collective Bargaining Agreement for the supervisory Fire Rescue personnel. Motion carried and ordered unanimously. (See page for Agreement.)

APPROVAL, RE: FY 2003 CERTIFICATIONS AND ASSURANCES FOR FEDERAL
TRANSIT ADMINISTRATION GRANTS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute FY 2003 Certifications and Assurances for Federal Transit Administration Grants. Motion carried and ordered unanimously.

APPROVAL OF REVISED POLICY BCC-21, RE: BUDGET AND FINANCIAL

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve revised Policy BCC-21, Budget and Financial. Motion carried and ordered unanimously. (See page for Policy BCC-21.)

AWARD OF PROPOSAL #P-2-02-33/30, FOOT LOW FLOOR BUSES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to award Proposal #P-2-02-33/30, Foot Low Floor Buses, to First Class Coach for the purchase of eight replacement buses at $236,732 each, with an option for four additional buses in the first year, and four replacement buses with an option for two additional buses in the second year. Motion carried and ordered unanimously.

EXTENSION OF CONTRACT FOR SALE AND PURCHASE WITH QUALITY GARAGE
DOOR SERVICES, INC., RE: SPACEPORT COMMERCE PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to extend the Contract for Sale and Purchase with Quality Garage Door Services, Inc. for 60 days to close on the purchase of a five-acre parcel in Spaceport Commerce Park. Motion carried and ordered unanimously.

APPROVAL OF REVISED POLICY BCC-28, RE: QUALIFICATION OF CONSTRUCTION
BIDDERS PRIOR TO AWARD

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve revised Policy BCC-28, Qualification of Construction Bidders Prior to Award. Motion carried and ordered unanimously. (See page for Policy BCC-28.)

APPROVAL OF APPOINTMENTS, RE: TRANSPORTATION ENGINEERING DEPARTMENT
AND ROADWAYS AND LANDSCAPING DEPARTMENT DIRECTORS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve appointment of John Denninghoff as Director of the Transportation Engineering Department and Bill Osborne as the Director of the Roadways and Landscaping Department. Motion carried and ordered unanimously.

AGREEMENT WITH BREVARD ACHIEVEMENT CENTER, RE: NON-PAID JOB
TRAINING EXPERIENCE AND WORK ASSESSMENT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize the County Manager to enter into a Host Agency Agreement with Brevard Achievement Center to provide referred clients with a non-paid job training experience and work assessment. Motion carried and ordered unanimously.

REQUEST FROM SHERIFF’S OFFICE, RE: USE OF DRUG FORFEITURE FUNDS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve $5,000 of State Drug Forfeiture Funds to be used in accordance with Florida Statutes, Section 932.7055(4)(a)(b), to purchase an industrial washing machine for the Space Coast Marine Institute Youth Ranch. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to reappoint Mike Selig to the Merritt Island Redevelopment Agency, with term of appointment expiring January 14, 2007. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve the Bills and Budget Changes. Motion carried and ordered unanimously. (See pages
for List of Bills and Budget Changes.)

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: FERN MEADOWS
SUBDIVISION, PHASE 1

Paul Tucker, representing ETM Civil Consultants, advised of his support for final engineering and preliminary plat approval for Fern Meadows Subdivision, Phase 1.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Fern Meadows Subdivision, Phase 1, subject to minor changes as applicable and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING UNNAMED RIGHT-OF-WAY IN
INDIAN RIVER PARK - EDWARD AND JENNIFER OSTOPOVICH

Chairperson Colon called for the public hearing to consider a resolution vacating unnamed right-of-way in Indian River Park, as petitioned by Edward and Jennifer Ostopovich.

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution vacating unnamed right- of-way in Indian River Park, as petitioned by Edward and Jennifer Ostopovich. Motion carried and ordered unanimously. (See page for Resolution No. 03-028.)

PUBLIC HEARING, RE: RESOLUTION VACATING STORM SEWER EASEMENTS IN
SECTION 7, TOWNSHIP 25S., RANGE 37E. - CLAYTON A. BENNETT OF
FLEIS & BENNETT ENGINEERING, INC.

Chairperson Colon called for the public hearing to consider a resolution vacating storm sewer easements in Section 7, Township 25S., Range 37E., as petitioned by Clayton A. Bennett of Fleis & Bennett Engineering, Inc.

Roadway and Landscaping Director Bill Osborne stated the applicant has requested the public hearing be continued to the February 18, 2003 meeting.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating storm sewer easements in Section 7, Township 25S., Range 37E., as petitioned by Clayton A. Bennett of Fleis & Bennett Engineering, Inc. to the February 18, 2003 meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY (EIGHTH STREET)
IN PLAN OF TOWN OF PINEDA - BRIAN AND LAURA WHEELER

Chairperson Colon called for the public hearing to consider a resolution vacating right-of-way (Eighth Street) in Plan of Town of Pineda, as petitioned by Brian and Laura Wheeler.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution vacating right-of-way (Eighth Street) in Plan of Town of Pineda, as petitioned by Brian and Laura Wheeler. Motion carried and ordered unanimously. (See page for Resolution No. 03-029.)

PUBLIC HEARING, RE: REQUEST FOR VESTED RIGHTS DETERMINATION FOR
DONALD AND VIRGINIA FOLEY

Chairperson Colon called for the public hearing to consider a request for vested rights determination by Donald and Virginia Foley.

Commissioner Higgs stated since the Foleys are not present, it would be wise to continue the public hearing to the February 4, 2003 meeting; and she received letters late last night and will provide them to the Commissioners.

Planning and Zoning Director Mel Scott stated Mr. Foley is present and may be in the lobby; his wife is in route to the meeting as the Foleys were anticipating the item would be heard in the afternoon; and suggested the item be heard later in the meeting.

The Board postponed the public hearing until later in the meeting.

DISCUSSION, RE: OPTIONS FOR CONSTRUCTION AND MAINTENANCE OF UNPAVED
ROADS AND EASEMENTS ON OSPREY AVENUE, SPIRE LANE, AND BRICKELL
LANE IN CANAVERAL GROVES

I. Centi Thomson stated she received the County’s possible resolutions to her request for construction of unpaved roads in Canaveral Groves, including road and drainage easement by quit-claim deeds along the frontage of property in Canaveral Groves when owners of the property are seeking a building permit under the Unpaved Road Section of Brevard County Code; the property owners have been deeded fee simple title to the roadway easement; and the quit-claim deeding of the roadway and drainage easement will give ownership to the County. She noted Options 2 and 3 were discussed previously; the County has added Option 4, to consider a policy which would allow the Board to consider constructing the road in those cases when there is a roadway and drainage easement of sufficient size to meet County specifications and when the applicant for the unpaved road has demonstrated he or she has been unable to obtain all the required quit-claim deeds, but has been able to obtain the majority of deeds along the roadway frontage; and all costs for road construction, including permitting and engineering, would be borne by the applicant. She stated under the Option, 89.75% of the roadway frontage must be secured. Ms. Thomson stated Ms. Watts had secured only 65%; in order for the roadway easement to become County-owned through prescriptive rights, the applicant would need to provide the funds for Brevard County to construct the roadway; the cost and benefit analysis is that all costs for the project will be borne by the applicant; and the proposed action supports the vision statement by providing and supporting a quality lifestyle within Brevard County. She noted if she cannot have the waiver as outlined in Option 3, she would request the Board consider Option 4, especially since her son has the knowledge and means in the road construction business; he has worked for the City of Cocoa for seven and one-half years in that field; he has been working in road building and underground construction at Kennedy Space Center for the past three years; and she has paid for surveying and engineering, and would pay for the cost of a road to reach the property.

Commissioner Scarborough stated the report indicates the Board would construct the road; but Ms. Thomson is saying she would construct the road. Ms. Thomson requested she be allowed to construct the road as a subcontractor; and she can do it more reasonable than the County and still fulfill County specifications.

Permitting and Enforcement Director Ed Washburn stated the County Attorney told staff in order for the County to maintain the roadway over the sections where the quit-claim deeds had not been granted that the County would have to construct and maintain the roads; and it could not be Ms. Thomson.

Commissioner Carlson inquired does the County have the provision that allows the applicant to pay for the roadway even if the County constructs it. County Attorney Scott Knox responded the County has a bid process; and the applicant could try to get involved in such process. Commissioner Carlson inquired about liability; with Attorney Knox responding it would be like any other subcontractor.

Commissioner Pritchard stated the first couple of hundred feet was constructed by a neighbor; he drove down one road and part of it is in perfect condition; and inquired why Ms. Thomson cannot continue that type of road as an owner/builder. Commissioner Scarborough responded Ms. Thomson can do that, but the problem is that Ms. Thomson has not been able to get all the quit-claim deeds; if the County builds and maintains the roads, there is a prescriptive right that can be acquired over property that the County does not have a quit-claim deed to. He stated the County Attorney has advised the County can get the prescriptive right, which is an adverse taking of property. He noted the Board’s action would be adverse to the property owners who refuse to give the quit-claim deeds; they will have legal recourse against the County if they choose to take it; so not only does the County get involved in it, but it also subjects the County to liability. Commissioner Pritchard inquired if 100% secured roadway frontage would be needed; with Commissioner Scarborough responding yes.

Ms. Thomson stated the road Commissioner Pritchard mentioned is being maintained by the County; her property would abut to the end of the already accepted part; and she has turned over 30 feet, which would be sufficient for her to build a passable road.

Mr. Washburn stated the section Commissioner Pritchard is referring to is maintained by Mr. Jewell; the County’s maintenance stops north of Mr. Jewell’s property; and the County does not maintain the gravel portion. Ms. Thomson stated Mr. Jewell extended the road by approximately 45 feet; according to the County’s records, the road in front of the first three properties have already been maintained for many years; her lot is the fourth one; there is approximately 40 feet, which has not been maintained because a gate was on the property; but Mr. Jewell continued the road to the end of the property. She noted Mr. Jewell dug the swale and finished the road at his own cost.

Commissioner Pritchard inquired could Ms. Thomson bid to construct that portion of the road, and if she is the low bidder, she could be awarded the bid. Attorney Knox responded yes, assuming she complies with the other requirements for bidders, including bonding and insurance requirements.

County Manager Tom Jenkins stated insurance would be the biggest requirement; if one has employees, he or she has to have workers compensation and liability insurance; from a practical standpoint, it would be difficult for a non-business entity to bid; but someone could get a subcontractor to bid for them; and the individual would have to meet the insurance requirements.

Ms. Thomson stated the north end of Osprey Avenue has been constructed; the property owners on the first four lots have turned over their rights-of-way; the road was constructed by a private contractor; and her son worked for the contractor and she knows what it costs to construct the road and what it entailed. She noted she would be glad to go ahead with the same requirements; and the surveying and engineering have been done by Don Tucker according to County requirements.

Commissioner Scarborough stated even though the property owners are paying the costs, he has continuing concerns of the County acting adverse to other people’s property rights; it gives property owners rights against the County; there have been a lot of comments about the County acting adversely to property rights; and this is clearly a right that exists under the law and he does not know if it is the route the Board wants to go. He noted the County would need to look beyond being paid for the cost and insulating the County from any liability that could occur through litigation. Commissioner Higgs stated the County is being asked to construct a road on property it does not own; without some other mechanism that works with it, she is reluctant to move forward, even though someone else may pay for the construction; it also sets a precedent that the County has to be ready in every platted area to move forward with a similar type of action; and it is not ready to do that. Commissioner Scarborough noted it could be draining on the County with the number of public hearings, discussions, and staff time. Commissioner Higgs stated the County is essentially doing a condemnation for a single property owner to get access; and it should not be doing that. Commissioner Pritchard stated there are several lots left to develop; it is a undeveloped area at this point; there is one person with 30 feet that is stopping the construction of homes in a neighborhood people would like to live in; and while he is an advocate for the rights of the individual, he is concerned that one person with 30 feet is afforded the power to stop about eight lots from being developed. He noted he is trying to weigh the rights of one person versus the rights of eight people to build on land in an area they would like to live in; and he is looking for a way to resolve that.

Commissioner Scarborough stated he has laid out his concerns; if they are addressed he will be glad to proceed; but until they are adequately addressed, the County may incur liability; and it needs to protect the general taxpayer. He noted it may create a precedent in many cases; and everyone needs to be treated equally. Commissioner Pritchard stated he agrees with Commissioner Scarborough, but many times the County approaches things on a case-by-case basis. Commissioner Scarborough stated that is where the County gets itself in trouble many times. Commissioner Pritchard noted sometimes to have a blanket no may not be in the long-term best interest, but on the other hand, he understands Commissioner Scarborough’s concerns. Commissioner Scarborough stated the long-term best interest is to say no until the County anticipates future requests. Commissioner Carlson concurred with Commissioner Scarborough’s comments.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve Option 1, to continue to require the applicants to obtain the necessary quit-claim deeds for construction and maintenance of unpaved roads and easements on Osprey Avenue, Spire Lane, and Brickell Lane in Canaveral Groves. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

RESOLUTION, RE: CREATING RECYCLING CITIZENS ADVISORY COMMITTEE

Assistant County Manager Stephen Peffer stated citizen Bette Danse placed an advertisement in the newspaper requesting citizens come forward who wish to participate in a recycling committee for the County; at the December 17, 2002 meeting, Ms. Danse appeared before the Board formalizing her request that the Board form a recycling coordinating committee; and at such meeting, the Board directed staff to proceed and return with the concept for a recycling committee, which is before the Board today. He noted in the agenda package is a resolution, which outlines the committee; and it is a staff recommendation, subject to the Board’s discussion and approval. He stated there would be one member appointed by each Commissioner; the League of Cities would provide three members to said committee; the cities are also involved in the collection of recycables; and they have individual contracts with the collectors and are important players in the consideration. Mr. Peffer suggested a member be appointed from the School Board; stated such Board is an important player; and there is a great potential for recycling in the school system. He noted staff is proposing that non-voting members of the committee come from the recycling industry; the members would be from the collection agencies who process the recycables and find markets for recycables; and it is important as the actual economic environment is critical in understanding what the options and availability of things are for the County in the future. He stated staff proposes that the County’s Recycling Coordinator be the staff liaison to the committee, and the committee have a sunset proposed in July 2003 to bring forward its recommendations.

County Manager Tom Jenkins stated the Agenda item says July 31, 2003; it may take 30 days to get the appointments; and it may be appropriate to change the date to August 31, 2003.

Solid Waste Management Director Euripides Rodriguez stated any recommendation that comes to the Board must come with a cost analysis attached to it; and whatever recommendations the Board decides to adopt, it should have a clear picture of what the consequences of each recommendation is.

Chairperson Colon suggested the item be discussed further later in the meeting when Ms. Danse is present.

RESOLUTION, RE: ESTABLISHING FINDINGS OF FACT ON APPEAL OF H & M REAL
ESTATE, INC.’S SITE PLAN APPROVAL

Commissioner Higgs expressed concern about opening the discussion with Attorneys John Evans and Troy Stephan; and requested County Attorney Scott Knox’s input before the Board allows anyone to speak.

County Attorney Scott Knox stated both Attorneys sent letters to Chairperson Colon and various members of the Board requesting additional time for rebuttal as they claim they were denied that opportunity at the last hearing; he does not know if that was the case or not; but in the interest of making sure there is no due process claim, it may be wise to give them an additional five minutes each to address any issues they feel they have to address. He noted it does not open the public hearing again, as the hearing would have been closed after rebuttal last time; if the Board had given the opportunity to rebut the last time, no one else would have been heard after that; so it is not changing anything. Commissioner Higgs reiterated her concerns if the Board allows the attorneys to speak and does not allow other members of the public who may want to comment as well. She stated if the Board opens up the discussion, it may be in its best interest to continue the item to allow the public to comment; and if it is going to start hearing the items again, it needs to go forward and reopen the public hearing again.

Commissioner Carlson stated by allowing each attorney to have five minutes opportunity, which is equal and gives them due process, it may or may not change anything in the findings of fact; and if it does, the Board may go to what Commissioner Higgs is suggesting and continue the hearing. Attorney Knox stated that is correct; had the two attorneys been given the opportunity to rebut the last time, no one else after them would have been heard anyway; so the Board is not prejudicing anybody who has not been heard already; and if the Board decides it wants to change anything in its findings of fact after hearing today from the two attorneys, it can direct that be done.

Attorney Troy Stephan requested the item be heard later in the meeting as the other attorney representing Noble Properties is not present; they anticipated they would be speaking around 11:00 a.m.; and Attorney Bruce Barkett is in transit from Vero Beach. Chairperson Colon noted the Board needs to stay on track with the Agenda.

Attorney Stephan stated at the conclusion of the last hearing, the Board heard testimony from area neighbors and received the findings of fact; there are discrepancies in both; staff commented on a distinction between the function ability between wetlands; the Brevard County Code clearly specifies there cannot be an impact on wetlands; and there was an argument as to the function ability of the wetlands. He noted the Code does not distinguish or provide a sliding scale of the function ability of wetlands; either the State designates wetlands or they are not designated wetlands; the wetlands on H & M’s property are designated wetlands; and there was an argument as to the function ability of wetlands. Attorney Stephan stated the Code strictly specifies what the wetlands need to do to be able to have an impact; the wetlands cannot be substantially surrounded by residential neighborhoods, which they are in this case; and according to the site plan, the wetlands are impacted. He noted the Code does not allow an impact of those wetlands; the Board heard from the expert about the function ability of the wetlands; although they are low-quality wetlands, they provide function; and they provide a varying degree of a lot of those functions, which are providing vegetated cover for wildlife species, stormwater attenuation, and stormwater treatment. Attorney Stephan stated according to graph 1, portions of the wetlands are impacted; H & M’s expert says the wetlands are low function and low quality; his expert says the wetlands are low quality and high function; for the Board to allow an impact will create a sliding scale on every one of these cases, which is not part of the Code; and the Code says if the wetlands are functionable or designated wetlands, one cannot have an impact. He noted he is not saying H & M Real Estate, Inc. cannot get approval one day; the site plan, as submitted, does not meet Code at this time; since H & M is grandfathered in on the six-month requirement, the Board could send the issue back and let H & M do it again without impacting the wetlands or until the County is satisfied the wetlands are low quality or no quality. He stated according to the findings of fact, Policy 5.2 specifies, “Wetlands shall be considered functionable, unless the applicant demonstrates that the water regime has been permanently altered, either artificially or naturally in a manner to preclude the area for maintaining surface water”; and the wetlands have surface water. Attorney Stephan reiterated the Code says the wetlands cannot be impacted and Policy 5.2 says the wetlands shall be considered functionable, unless the applicant proves that they are dry. He stated the wetlands are wet; there was argument about debris, tires, and cement on the south tip of the wetlands by the walkway to Waterway Manor; it is two and one half acres of wetlands; and the Board heard someone in favor of the project say a Publix was going to come in and upgrade the area. He noted this is not a new development; Publix is directly across the street; Publix is going to move across the street to the new area; and the old area is going to be a dinosaur eyesore location.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to allow Attorney Stephan to complete his comments. Motion carried and ordered unanimously.

Attorney Stephan stated there are no vendors to take the old location; such location will remain dormant and vacant; the area as it stands is beautified where Publix is now; a lot has been done with the area; and directly behind it is low-grade housing. He noted it is going to downgrade the area having Publix move across the street; it is the same Publix that Waterway Manor, Meadows, and Carlton Groves residents currently walk to; they go to Target and Publix; and it should be taken into consideration when considering new development to the area.

Attorney John Evans, representing the applicant, stated staff indicated his client is in complete compliance with the Code of Ordinances; H & M has done what staff has requested; whether or not Publix should be or should not be here is not relevant to today’s argument; the issue is whether the applicant complies with the Codes in terms of the site plan; and requested the Board’s approval.

Commissioner Scarborough inquired would there be any additional staff comments regarding the wetland issue; stated staff prepared the findings of fact; and there was additional information presented today.

Sherry Williams, Environmental Permitting, stated she has not seen the findings of fact, so she can only refer to what was stated at the last meeting.

Commissioner Scarborough stated the Board should table the item until staff has an opportunity to see the findings of fact and find out whether or not any of the comments made today would require amending the findings of fact; the issue may go to court; and the prudent thing to do is make sure staff is fully involved. Commissioner Carlson suggested the item be postponed to later in the meeting to allow staff to review the findings of fact.

Chairperson Colon stated the item will be discussed further after staff has reviewed the findings of fact.

Steve Lengefeld, South Florida Region Manager for SP Recycling Company, stated the Company has been processing approximately two-thirds of the County’s Curbside Program since 1990; he also sits on the Board of Directors for Recycle Florida Today, the State Recycling Organization; and he has been in the business for 15 years. He noted his Company is owned by SP Newsprint Company, which is the fourth largest newsprint producer in North America; it has two mill sites, one in Newburg, Oregon and one in Dublin, Georgia; there are two machines at each location; and the mill in Dublin is 100% recycle content newsprints, the largest in North America. He stated the mill consumes 2,200 tons of newsprint a day and nearly 750,000 tons a year; all the old newspapers from Brevard County go to such mill; approximately 300,000 tons of newsprint out of the State of Florida go to the mill; and his Company is moving forward to build in the County to continue processing. Mr. Lengefeld stated the Company has negotiated a 10-year lease and is committed to Brevard County; existing private industry processing capacity has picked up the ball and run with it; no taxpayer dollars have been spent in that regard; the County’s recycling rate, as measured by the State of Florida, is in the top 30% of the 67 counties; and Brevard County is ranked 18th. He noted there was discussion about Volusia and Dade Counties’ programs; Volusia County is ranked 21st and Dade County is ranked 38th; and markets are regional and demographics county by county can be dramatically different. He stated if it is not broke, don’t fix it; and he believes that to be the case here, but does not mean there is not room for improvement in the County’s program. He stated the Company would like to see an increase in the amount of tonnage from the existing programs; the biggest bang for the dollar would be increasing participation rates in the County’s Curbside Program; currently Brevard County is around 60%; six out of ten people are participating; and it is a strong number, but it still means that four out of ten people are not participating. Mr. Lengefeld stated if the County could get two of the four people to participate, it would see approximately another 8,000 tons of recovered material, including paper, cans, glass, and plastic kept out of the County’s landfills and coming through his Company’s plant; and the proposed committee should concentrate on increasing participation rates and education, not changing the scope.

Bette Danse stated she submitted to the Commissioners a list of potential members to the committee; she has talked to the County about the need of increasing recycling tonnage, as well as participation; the model individuals have been working on during the past couple of months has been Broward County, which makes quite a bit of money; and she agrees Broward County is not Brevard County, but it is a good idea to investigate all the counties that are doing well. She noted she is not familiar with Volusia and Dade Counties; she has not seen any statistics concerning six out of ten people participating in the County’s Curbside Program; she has heard the opposite and that more people are not recycling; they are using the recycling bins as laundry baskets; and they are throwing recyclables on roads and ditches. She stated it has gotten worse throughout Brevard County; some individuals are trying to improve the County and make it more beautiful than it is so it is not an eyesore; places along the causeways have gotten worse; and this is a team effort to get people to be more aware of it, including the schools, libraries, hospitals, and businesses. Ms. Danse noted the schools are not recycling; there is an effort to educate the children, but it is not working in actuality when they go to the cafeteria and throw their bottles and cans into the garbage; there are no recycling bins there; and people have to go out of their way to Publix or other places to drop off their recyclables. She stated curbside recycling needs to be improved; she was unaware that the League of Cities and School Board were going to be added to the committee; it was her understanding it was going to be a citizen advisory committee; and she was not aware that elected officials could be on such a committee. She noted whatever the Board desires she will try to help out in any way she can; and she has made recommendations on the members list.

Commissioner Pritchard stated his interpretation was that the League of Cities could appoint three members and the School Board could appoint one member; and the members would be appointed by the League of Cities and School Board. He inquired about the increase in revenue if recycling is increased.

Mr. Lengefeld responded his Company contracts with Waste Management; there is a revenue share the County has with waste; it depends on the markets at any one given time; and it is difficult to measure the revenue.

Ms. Danse stated she would like the committee to investigate that question thoroughly; recommended giving credit to people who recycle; and noted it would be an excellent idea to reduce the taxes.

Commissioner Pritchard inquired is recycling at the food stores primarily plastic and paper bags. Ms. Danse responded there are storage bins for each; and there is Styrofoam recycling of food and beverage containers also.

Commissioner Carlson stated there are a lot of people on the League of Cities and who knows what they want to do; she believes it is open; she agrees that improvement of the participation rate and raising the social consciousness about recycling is the key; and recycling is taught in the schools, but it is not followed through at home, sports events, or County-sponsored events. She advised of her support for the resolution and committee; and stated the committee can work out the details, find out how Broward County does it, how Brevard County can improve what it has, and how it can increase participation. She stated the County is doing well, but it can do much better. Commissioner Pritchard stated he used to live in Broward County and did not like its program; such program was not convenient and became a problem; it was more regulatory on how the recycling could be left at curbside; and the program started faltering. He noted apparently the program is back in existence; the most important thing to have with any program is convenience; the City of Toronto has recycling police who go through garbage cans and fine people if they have a can or bottle in their garbage; and he does not want to see that in Brevard County. He stated the County needs to recycle more; but it has to be done properly and not with a heavy hammer of government coming down on people if they throw a can or bottle in regular trash.

Solid Waste Management Director Euripides Rodriguez stated the recommendation is for one appointee from each District appointed by the Commissioners, three members appointed by the League of Cities, one member appointed by the School Board, and ex-officio members named by the Department randomly, which are non-voting members. He stated recommendations that come to the Board would have a cost analysis; and the sunset provision would be August 31, 2003.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to adopt Resolution creating the Recycling Citizens Advisory Committee, with a sunset of August 31, 2003.

Commissioner Carlson inquired when does the League of Cities meet; with staff responding February 10, 2003.

County Attorney Scott Knox recommended language be included in the resolution, as follows: “The committee shall comply with all open government laws.”

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously. (See page for Resolution No. 03-030.)

The meeting recessed at 10:37 a.m. and reconvened at 10:47 a.m.

TASK ORDER WITH BOYLE ENGINEERS, RE: SNUG HARBOR UTILITY ACQUISITION

Commissioner Higgs stated she met with the citizens from Snug Harbor last week; they explained the situation they have had in regard to being asked by their private utility provider to put a device on their houses concerning back flow; it is an expensive device and requires a $60 inspection fee annually; it is not a device that is normally required and prevents a back flow of a non-potable well into a potable system; and it is designed to protect it. She noted it is being requested of these people by the end of January 2003; there was discussion that the County might consider acquiring the utility; it is a big step; but the residents asked the County to consider it; and she sent the Board information last week to consider the issue, in light of the problems the residents are having. She stated she asked the attorney representing the utility if it would not enforce the devices requirement by the end of the month if the County would begin seriously look at the acquisition process; she is following through with the conversations with the community last week and the desire of the utility to see a commitment on her part to have the County look at the acquisition in order for Snug Harbor not to go forward by the end of January 2003 with the citizens having the $250 devices and $60 inspection fee; and it is a timely item that needs to be reviewed quickly.

Alida Hirschfeld stated she and her husband purchased a new home in April 2003 with the idea of downsizing and relaxing in an adult community; a few days after closing, they moved in; the electric, water, etc. was turned on; and after boiling the water in the kettle, they were shocked to see the foam and oil slicks on the top of their coffee cups. She noted they threw their coffee out; when they washed their dishes in the new dishwasher, the dishes were horrible and looked better before she placed them in the dishwasher; the water is so bad that they were forced to buy a water softener and water filtration system so they could use the water for washing; and the water is so yellow in the toilets it looks like they have not been flushed. She noted their new white sinks and toilets now have a yellow tinge to them; they took a water sample to an independent water company and had the water tested; there is too much iron in the water and they were told not to drink it; so she called the Board of Health in Brevard County and spoke with Cheryl Dunn about the problem. Ms. Hirschfeld stated she faxed Ms. Dunn the test results; Mr. Jenkins came to their home to test the water; several days later, they were informed that their water had bacteria in it and it was not drinkable; the water was re-tested a week later after the water company knew they were tested; and they in the meantime had flushed the system. She noted they were informed that some of the chlorine levels were not adequate, but that the bacteria was gone; not only is the water yellow, it is unusable and unpotable; they received a letter from Berkam Water Company that it wants all the well owners in the community to put in a commercial-type back flow valve on the water meters, even though the wells are only used for irrigation; and it is harassment and discrimination against those who have wells. She stated the Company is poisoning a senior community and trying to use scare tactics like threatening to cut off the water to cover up its bad bacteria-filled water it sells the residents; urged the Board to purchase Berkam Water Company and help the seniors who have been threatened and harassed by the Company; and noted purchasing a water utility is a good investment.

Pat Reed stated he and his wife purchased their home approximately two years ago and moved in it in November 2002; he did not do an in-depth study of the water system since he was used to being on a metropolitan water facility that served a large regional area; he assumed the various government agencies would take the appropriate steps to see that the water was potable and the sewer system operated in a safe manner; he has contacted Ted Davis and Dave Herbster, Public Service Commission, and Paul Morrison, Department of Environmental Protection; and the only assistance he received was from the County. He noted Berkam Water Company runs itself and meets minimum standards by the State; and expressed concerns with the drinking water and water pressure to provide adequate fire protection. Mr. Reed requested the Board support purchasing the system.

Water Resources Director Richard Martens stated over the last six months staff has been associated with the issues and have tried to provide assistance; it has initiated a process to have one of the County’s consultants prepare a task order that would evaluate the feasibility of acquiring the system; the final document will be ready at the end of this week or next week; and it will be within the procurement authority of the County Manager.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize the County Manager to negotiate and execute a Task Order with Boyle Engineers to perform an engineering due diligence report on the feasibility of acquiring the Snug Harbor Water and Wastewater Utility System.

Commissioner Pritchard stated he would like to know what the water pressure is for the current system included in the report. Commissioner Higgs noted all of the issues in regard to operation, as well as how the County would work it, would be evaluated in the report.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously. (See page for Task Order.)

Commissioner Higgs stated the Board has approved the request to have the experts review the system and evaluate it; the County will be moving forward to get the information together; she appreciates the residents attending the meeting today; and their presence indicates to the Board how big the issue is. She noted the Board is not guaranteeing it will do anything other than evaluate the system; she does not want to mislead anyone; it has requested a review and financial and operational feasibilities; and the County will keep the residents up to date on it.

Virginia Foley stated she and her husband would like to build on their property, which they purchased in 1990; staff told them they need the Board’s approval before they can do so; in March 1990, they placed the property, which they refer to as South Point, into the family trust for future use for themselves and their family; and provided photographs to the Board. She reviewed a map of the proposed property; stated the map shows S.R. A1A, the Atlantic Ocean, the river, Long Point Park, and the proposed property; they agree that the black area is environmentally-sensitive land; and the green/blue area is Holiday Circle. She noted the property was designated EA, but the spot she left uncolored was zoned RU-1-13 and consists of approximately three plus acre. Ms. Foley stated after purchasing the property, she and her husband made inquiries to the County, specifically Tom Myers, as to the process to follow to ensure they were able to build on the property; and Mr. Myers, George Edward, and her husband had several conversations that led to Mr. Edwards guiding them through a process, which included completion of a survey, recording a roadway easement, and three applications with fees for the existing flag lots. Ms. Foley stated in January 1992, Mr. Edwards issued two separate letters, each approving a flag lot; the third lot was approved and a letter was issued in March 1992; such letters are in the Board’s packages as exhibits 5, 6, and 7; and upon receipt of the three letters, they felt assured that the lots were buildable. She stated over the past 10 years, they have stockpiled hundred of loads of fill, installed underground electric service for three homes, maintained an artesian well, and prepared preliminary building plans. She noted they estimate their costs to be in excess of $25,000 over the 10-year period; and they relied completely upon Mr. Edwards’ information, together with the three letters, that the lots were buildable. She stated it is important to note that at the time they purchased the property, the Official Zoning Map showed the South Point parcel as RU-1-13 and no lots delineated on it; and shortly after they received their letters of approval from Mr. Edwards, the Official Zoning Map reflected a designation of three lots and a roadway called Holiday Circle. Ms. Foley stated Brevard County issued Resolution No. 92-108 in April 1992, calling out the flag lot stems and naming of the roadway as Holiday Circle; the Resolution was recorded in the Public Records; the attachment to the Resolution clearly indicates the three lots, which is attachment 9 that was turned into the Zoning Department; and the Resolution was completed at the request of staff for improved 911 emergency services to homes built in the future on the lots. She noted Planning and Zoning Director Mel Scott told she and her husband that because their lots were not recorded, they were being disallowed; the definition of a lot at the time they were undergoing their approvals was a parcel of land shown on a recorded plat or on the Official Zoning Map or any piece of land described by a deed recorded in the Official Records of Brevard County; the current definition of a lot excludes the words “or on the Official Zoning Map”; and the South Point property is not and has not been environmentally sensitive, at least not since the early 1960’s. Ms. Foley stated in the packages provided to the Board, there is an aerial photograph taken in February 1965; the area has been filled, which is the same area being discussed; the other white area is Long Point Park; and both areas were filled sometime before February 1965. She noted prior to Mr. Edwards’ approval, the property was site visited on January 15, 1992 and was inspected and monitored in January 2002 by Mrs. Tammy Dabu, Department of Environmental Protection (DEP), and Army Corps of Engineers in conjunction with the placing of fill by Indian River Dredging Company; the only concern was that the fill not be placed within 50 feet of the water line and that the silt barrier be used; and showed photographs to the Board she took this past weekend showing the current condition of the property. She depicted the silt barrier that was placed before Indian River Dredging Company placed the fill; stated there are loads of fill that have been there for some time; the Florida Power and Light Company transformer was placed on the property to service three homes; and other photographs show Holiday Circle and the County’s transformer that services the Mosquito Control pump. Ms. Foley noted a copy of the County’s Official Zoning Map is listed as attachment 14; such Map shows the three lots clearly zoned RU-1-13 and calling out the flag lot easement approval letters with reference numbers AA633, AA627, and AA622; she and her husband entered into an Easement Agreement with the County on behalf of Mosquito Control Department to allow the Department to access the property for official purposes; and the Agreement also called for installation of electric to service the property. She stated the cost was divided between the County and she and her husband; the Department was able to use its electric pumps at a considerable cost savings to the County; the County agreed to maintain the roadway, including trimming of the trees and vegetation; and attached to the Agreement was a map showing the easement, electric line, and the three lots, which is attachment 11 in the Board packages. She noted she and her husband purchased the property with the sole intention of building for their family’s future use; they relied upon Brevard County approvals to this date to prepare the property for construction; they have spent thousands of dollars acting in good faith reliance on the representations of the Zoning Department and meeting all the criteria they were told must be met; and requested the Board grant them vested rights on their lots so they may proceed with their plans for building.

John Barber stated he is a property owner within 500 feet of the property in question; the dates are well articulated here, but not exactly true; in 1995, the Board downsized the number of units allowed in Melbourne Beach; people had the opportunity to subdivide their properties prior the 1995 and received notice in advance to do same for construction purposes at a later date after the zoning had changed; and if it was not done, people missed out plain and simple. He noted vested rights was something that was designed after there were zoning changes in 1972; if someone was in a development that was already platted and building was allowable, he or she would be protected from any future changes and could build on the property; and it is fair. He stated he is a general contractor and plumbing contractor of 23 years; he makes his living building and likes to see houses built; but he also hates to see destruction of environmentally-sensitive properties. Mr. Barber stated the Foleys knew when they purchased the property that it was questionable whether they could ever build on it; the property was purchased for a small amount of money; the amount would justify the fact that the property was probably not buildable; and he has aerial photographs dating back to 1955 that show when the canal was dug through the island Ms. Foley referred to as Long Point, which is a County park, but an island with a canal through it. He noted around 1955, Mosquito Control Department put roads through there before regulations and concerns about the environment; mangroves were filled so the Department could get in to spray for mosquitoes; and the Department is able to spray from the air and it does a good job. Mr. Barber stated anyone can build a strong case and be manipulative enough to try to show dates that work out for one’s purpose, but they may not be correct; the property is grass and weeds now; the aerial photographs several years back do not show grass and weeds, but mangroves and trees; the Foleys have been filling the property every year; and it is his understanding that one cannot clear or fill property without a permit or it is breaking the law. He noted a portion of the property is the aquatic preserve and is affected by the mean high water title influence of the Indian River; this is not a hardship case; the Foleys have a lot of money and have probably earned it; but sometimes people tend to put money first and put the environment on the back shelf. He reiterated he is a builder and makes his living building houses and developing property; but people should do same in a responsible manner and with the intent of what the Board has designed through the needs and wants of the people of Brevard County to not over build or build in areas that should not be built on; and the proposed property should not be built on. Mr. Barber stated by giving the Foleys vested rights, it shoots a silver bullet through DEP and Department of Natural Resources’ (DNR) hearts as it will allow the Foleys to fill mangroves for the foundation of the house, install septic tank, and fill outside the boundaries of the home for proper slope, driveways, sidewalks, etc. He stated vested rights, in its proper place, is important and people should have that right; but for a developer or person to take a piece of property like the proposed property, modify it over a period of time, put together a nice list of things that sound good, but are not reality, to make more money and rob Brevard County of a beautiful area, is a crime. Mr. Barber provided plat maps and aerial photographs to the Board showing the Foleys property prior to clearing and after the clearing; and requested the County review the proposed property.

Planning and Zoning Director Mel Scott stated Ms. Foley did a nice job relaying to the Board the circumstances that exist; pages 20, 21, and 22 are the letters that were issued by his Department and the Zoning Official at the time, George Edwards; such letters stated the County was granting the ability of the owner to establish one easement lot and two flag lots; however, the letters should not have been issued. He noted at the time the letters were issued, the Comprehensive Plan was in place; when there is a conflict between the Zoning Code and what is allowed per zoning, and the Comprehensive Plan, such Plan takes precedence and overrides the zoning provisions; so in 1992, the Comprehensive Plan and Future Land Use designations that applied to the property were conservation and one unit per ten acres. He stated the issuance of an easement lot and two flag lots that would establish lots at just about one acre in size is contrary to the Comprehensive Plan; even if the owners in 1992 had followed through and converted the administrative approvals to instruments which conveyed property, such as a warranty deed, the lots would still be illegal in 2003; the lots were not created in the Official Record Books of Brevard County; and warranty deeds were not established. Mr. Scott noted it is the Foleys contention there was good faith reliance upon the administrative letters and such letters created the lots; he can argue on a technicality that letters that grant administrative approval are not instruments that convey property; it is an argument that can be made on a technical level; administratively, staff is not able to recognize the letters; and it has since revoked the administrative approvals and would only re-establish the lots if the vested rights were granted.

Commissioner Pritchard inquired where is Mr. Barber’s property located; with Mr. Barber responding it is east of the pond. Commissioner Pritchard inquired what was the condition of Mr. Barber’s property when he purchased it. Mr. Barber responded the subdivision is Indian River Oaks; and the lots he owns are 1, 2, and 3, which are platted. Commissioner Pritchard inquired are the lots the same condition as the property in question; with Mr. Barber responding no. Mr. Barber advised the lots are high and dry; they have had full review of DEP, DNR, and the County; and the units were pulled out of the mangroves to keep from trimming or cutting such mangroves. Commissioner Pritchard noted Mr. Barber had an issue with DEP and was fined by it concerning mangroves. Mr. Barber responded he dug the canal deeper with permission of the property owner, and DEP had an issue with it; through the process, DEP found out he had the right to dig the canal; and the issue was dismissed. He noted he removed Brazilian peppers off the entire piece of property at his own cost as he knows what their damage is; DEP had been watching him for 2 ½ years looking for something and found nothing; he was never charged with removal of any plant; and it is filed as a matter of public record. Mr. Barber stated he was charged with filling as he filled in the holes where the Brazilian peppers were; he was fined $300.00 and removed six inches of fill; and DEP then gave its approval.

Commissioner Higgs inquired what is the current definition of how a lot is created, when did it change, what is the importance of the Official Zoning Map reference, and when did it change. Mr. Scott responded the old definition of lot mention the Official Zoning Maps as one of those instruments that one could depict a configuration and it would be considered a lot; and on August 21, 1991 via Ordinance No. 91-17, the definition of lot was altered to its current definition, which struck the reference of Official Zoning Maps and relied solely on the Official Record Books of the County, which are maintained by the Clerk of Courts. He stated the acts being discussed today occurred in 1992; so the definition of lot did not include the Zoning Maps in 1992. Commissioner Higgs noted the change of the Code preceded the Zoning Map changes that the Foleys had and the letters from Mr. Edwards; and inquired if the Board does not approve the vested rights and the creation of the three lots, what is the status of the lot, any development on the property, and what action could the Foleys consider. Mr. Scott responded without the vested rights currently, the property will yield one home; it is based on a density perspective and not saying that any other permitting hurdles the Foleys may have to encounter would be gone; but there is a density of one home on the subject property without the vested rights. Commissioner Higgs inquired is it on the three-acre parcel or the full 18 acres; with Mr. Scott responding the 18 acres. Commissioner Higgs noted there would be no recognition of any of the lots that are currently shown on the Zoning Map as RU-1-13; with Mr. Scott responding that is correct. Commissioner Higgs stated the Foleys are able to build under the current zoning one home; with Mr. Scott responding that is correct. Mr. Scott noted if the vested rights is not granted and the Foleys want to re-establish their ability to build three homes, they would have to change the Future Land Use Map, rezone the property, and have a text change occur in the Future Land Use Element as this would be seen as an increase in density; and density increases are prohibited in the South Beaches area of Brevard County.

Commissioner Scarborough inquired does reliance on the letter from Mr. Edwards create a basis for vested rights. County Attorney Scott Knox responded there are cases saying that if the County issues a letter that says one can violate the law, it is not a basis for vested rights. Commissioner Scarborough inquired if someone went to one department and received a letter in favor, but he or she needed to get 13 departments to sign off on it, does the one out of 13 give someone a right; with Attorney Knox responding no. Commissioner Scarborough stated there were profound changes in the property in 1993; and inquired is alteration to the property the act of reliance. He noted the allegation is that $25,000 was spent; and inquired was the money spent on alterations of the property. Mr. Scott responded it is the applicants’ contention. Commissioner Scarborough inquired was the alterations that occurred on the 1993 map authorized by the appropriate agencies; with Mr. Scott responding he does not believe so. Commissioner Scarborough noted an illegal act could not be an act of reliance; with Attorney Knox responding that is correct.

Sherry Williams, Environmental Permitting, stated staff does not have any record of enforcement for the property; and the only records it has is the 1992 approval by the Office of Natural Resources Management for the lot split. Commissioner Scarborough inquired currently if he wants to alter a lot, does he have to get a permit from the County; with Ms. Williams responding yes.

Assistant County Manager Stephen Peffer stated Ms. Williams indicated the County did not have any enforcement actions; and inquired if the County had any authorizations for the placement of fill. Ms. Williams responded the only record in her Office for the proposed property is the 1992 approval issue for the three lots.

Ms. Foley stated Mosquito Control Department re-built the dikes, but she does not know the date it occurred; the property was altered at that time; it was sometime around 1992 before DEP went on the property; and she has a letter from DER dated April 20, 2001. She noted the property never had mangroves on it; it had Brazilian pepper trees and Australian pine trees; in 1987 or 1989, the freeze came and many of trees died; there were mangroves near her house that died due to the freeze; and she and her husband did not push any mangroves down as Mr. Barber alleged.

Commissioner Pritchard stated by the photographs, the pristine land has been filled; and inquired how would one know they were violating the law, as the 1992 letter from Mr. Edwards implies that the Foleys have a right to do something on their property. He noted he has not followed how the Foleys could know they were violating the law. Ms. Foley stated she has no idea how she and her husband have violated any law; they have allowed Mosquito Control Department to use the property; the Department keeps the roadway cleared; and they have allowed the Department to put culverts in. She noted she used to have a great fishing hole in the canal with snook and tarpon; after the freeze, the trees died and leaves fell into the canal; the decay removed all the oxygen in the canal; there were hundreds of dead snook at Long Point Park; and she was dipping fish out of the canal and throwing them into the river to keep them from dying. She stated as a result of her efforts, there were only 10 dead fish; she called Jim Hunt at home and begged him to turn the pumps on to get water in the canal so the fish would not die; Mr. Hunt came to her house at 2:00 a.m. and turned the pumps on; and she is not trying to destroy environmentally-sensitive land. Ms. Foley stated the South Point is not part of the 60-acre block. Commissioner Pritchard inquired what kind of process did the Foleys go through to install the transformer and electric for three lots. Ms. Foley responded they worked with Mosquito Control Department and Florida Power and Light Company on the installation; and the County paid for half of the cost. Commissioner Pritchard stated the Foleys had a joint venture with the County to install electric service; with Ms. Foley responding that is correct.

Commissioner Higgs inquired is Holiday Circle the road on top of the Mosquito Control dike; with Ms. Foley responding yes. Commissioner Higgs noted when Mosquito Control Department built the dike, Holiday Circle was created as a road, which accesses the Foleys property and circles the dike; and it provides the Foleys access and a joint benefit to both parties. Ms. Foley stated that is correct.

Ms. Foley stated she and her husband have not destroyed any mangroves; they have pulled Brazilian peppers from their property; her husband has cut them and she has covered them up with plastic to kill them; she has done same since they moved here in 1987 as she knows what Brazilian peppers, Australian pines, and Melaleucas do; and she and her husband are environmentally-aware people and have not filled the land and covered mangroves.

She noted she is sorry Mr. Barber feels the way he does; and requested the Board listen to what she said previously as she provided accurate information.

Commissioner Higgs stated the real question is were the lots created in a manner that allowed them to be recognized legally; and based on the definition in the Code that staff has testified to, she does not believe the lots were created. She stated there is a parcel of land with 18 acres that has rights in terms of its development, but there are not three lots legally created; so there is not a vested rights based on her reading of the definition. She noted she cannot support a vested rights claim on the item.

Commissioner Pritchard stated he feels the opposite, relying upon the 1992 letter and the joint venture; the Foleys are environmentally-aware individuals; the pristine land is no more and is grasses at this point; there is a substantial amount of wetland adjacent to the property; and the joint venture issue and reliance upon the 1992 letter gives credibility to the Foleys’ position that they are entitled to a vested right. He noted the amount of money spent does not figure into it for him; what figures into it is that the Foleys did this under the guidance of the 1992 letter; as things go on, people are not aware of the changes to rules as to what makes a platted lot, unless they are notified; and there is a recent issue with electrical sign installers that the State in 1992 required them to be State licensed. He stated no one bothered to notify the County for quite a while, and the County did not bother to notify the electrical contractors until a contractor came forward and indicated he was the only person with a State license; it put the other individuals out of business; the Foleys did not know about the rule changes; and when the County puts people in that kind of position, it is doing a disservice to the public. Commissioner Pritchard noted it is not the way the County should operate; the Foleys relied upon the 1992 letter and went forward; they have been in a joint venture and it has benefited the County; and he does not see where three lots on that size property is going to have a detrimental affect. He advised he supports the Foleys request for vested rights.

Commissioner Higgs stated there was no change in the law; the law in terms of the definition of what a lot was did not change subsequent; and it was in place.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to deny request by Donald and Virginia Foley for vested rights determination to create three lots via the establishment of two flag lots and an easement lot within a private conservation land use designation.

Commissioner Scarborough stated there can be an act of reliance, but there has to be the initial basis for the vested right; Attorney Knox has told the Board there is not a legal basis for the vested rights; and it was clearly contrary to the intention of the law and required additional actions to perfect the vested rights. He inquired is there a legal basis; with Attorney Knox responding under these particular circumstances, had somebody read the definition of lot when they first obtained the letter from Mr. Edwards, they would have realized there was a problem; and Commissioner Higgs’ motion is in order.

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

Chairperson Colon inquired if staff had an opportunity to review the findings of facts.

Sherry Williams, Environmental Permitting, responded she reviewed such facts and agrees with the County Attorney’s conclusions of law as stated in the findings of facts.

Commissioner Scarborough inquired was there anything said this morning that staff feels the findings of fact would need to be altered to reflect the conditions of the wetlands that were not correct in the findings of fact; with Ms. Williams responding no. Commissioner Scarborough inquired if the findings of fact could proceed as submitted by the County Attorney; with Ms. Williams responding yes.

Motion by Commissioner Scarborough, to deny the appeal of Noble Properties II and Troy Stephan pertaining to H & M Real Estate, Inc.’s site plan approval.

Chairperson Colon stated it is up to the Board how it wants to handle this. Commissioner Scarborough inquired is the Board going to have further discussion on the findings of fact; with Chairperson Colon responding it is up to the Board. Commissioner Scarborough stated anytime there are comments on the findings of fact, the Board needs to ask staff if it should change them; and staff needs to re-review if there is a need to further refine the findings of fact. Commissioner Carlson stated the Board listened to both attorneys. Chairperson Colon stated one attorney that was going to be here at 11:00 a.m. did not have an opportunity to speak; and if the Board gives him five minutes it will be fair.

Attorney Bruce Barkett, representing Noble Properties II, stated he was told he could have five minutes for rebuttal.

Commissioner Scarborough stated if the Board allows Attorney Barkett to speak, it should also allow staff to make sure any comments made are incorporated in the findings of fact; it is not that he is opposed to Attorney Barkett speaking, but it is more than just having him speak and accepting the motion; so he will remove his motion because it is inappropriate if Attorney Barkett speaks.

Commissioner Scarborough withdrew the motion to deny the appeal of Noble Properties II and Troy Stephan pertaining to the H & M Real Estate, Inc.’s site plan approval.

Commissioner Scarborough stated whatever Attorney Barkett addresses should be taken into consideration by staff who prepared the findings of fact.

Attorney Stephan stated he also filed a motion in conjunction from the last meeting as there were comments by the Board of why there was not more neighbors present; after such meeting, he received a floodgate of phone calls, emails, and correspondence; and he filed with the Board a motion to have it reopen the issue so the neighbors could be heard at that point.

Commissioner Pritchard stated at the last meeting when the Board moved to deny the request, it voted in the affirmative to let the applicant go forward with the development; the County Attorney prepared findings of fact, which he found to be thorough; and the conclusions fit the gist of the paragraphs. He stated if the Board starts talking about the issue again, it is going to have to go back to staff; and it is time to pull the plug and get on with it. Chairperson Colon stated she was disappointed to find out that both attorneys were going to be speaking today; one of the things the Board is trying to avoid is to make sure all the facts and testimony are presented at the time it is before the Board; she was comfortable with that; but it was a recommendation of the County Attorney; and the Board accepted five minutes from each attorney. She noted the Board wants to move forward; and at this point, it will not be hearing any more speakers. Commissioner Higgs expressed concern that the Board has allowed two attorneys to speak and not the third attorney; and stated she is procedurally concerned.

County Attorney Scott Knox stated his advice would be to let the attorney speak for five minutes; and staff will be able to decide whether the findings of fact need to be changed or not.

Commissioner Higgs inquired about the rest of the public who may not be represented by one of the attorneys; with Attorney Knox responding the public does not have any right to speak at this point as they have had their opportunity. Commissioner Higgs inquired why do the attorneys have a right; with Attorney Knox responding because according to them, they did not get their rebuttal they asked for at the last hearing. Commissioner Pritchard stated the Board can give the attorneys five minutes each, give staff time to reflect on the comments, and then the Board can move on.

Attorney Barkett stated he appreciates the opportunity to speak; and provided information to the Board, but not the Clerk. He noted if the matter goes to Circuit Court, it is called petition for certiorari; the Circuit Court will order that the record before the Board be brought before such Court for it to review; if it reviews the record, it has three issues to look at; and such issues include: (1) was there competent substantial evidence to support each of the findings, (2) was everybody afforded due process, and (3) what does the law say. He stated he pointed out four areas in the first hearing where the site plan was contrary to the County’s law; he understands Attorney Stephan has discussed the wetlands issue, so he will not revisit that; and he will talk about the six-foot wall that is required to go around commercial properties. Attorney Barkett noted the site plan depicts a five-foot wall between the project and Waterway Manor; the engineer indicated the wall was six feet when it was constructed and vegetation has built up around it; and the County’s Ordinance requires a six-foot wall. He stated he can see over a five-foot wall, but cannot see over a six-foot wall; the Ordinance is designed to protect the residential property from the commercial development and needs to be a six-foot wall; the Board does not know how high the wall is; and it knows what the physical evidence in front of it is. He stated the site plan says it is a five-foot wall; the Board needs to find that out and cannot punish Waterway Manor for having an existing wall that is only five feet; the County’s Ordinance gives protection of a six-foot wall; and that is what needs to be there. Attorney Barkett advised there is an incorrect statement in the findings of fact; page 5, paragraph 1 states, “There has been no competent substantial evidence presented indicating that such a certificate from the Department of Transportation (DOT) was not presented by the applicant in this case”; Mr. Mayer, the engineer, testified to the Board last time that he did not present such a certificate; and his first statement, with regard to access to Courtenay Parkway was it is true that there is not a DOT permit. He stated there is competent substantial evidence that there was not a certificate; he has given the Board a copy of the County’s Ordinance; and the second page of the Ordinances states, “Any party requesting a concurrency evaluation shall submit the following information: (6) If access to the project is from a State highway, an approval from the DOT that access will be approved upon submittal of appropriate engineering and design exhibits.” Attorney Barkett noted it is not in the record; it is the applicant’s burden to demonstrate compliance with the Ordinance; on the petition for certiorari, the court will look to what the County’s law says and apply such law; the law says the applicant has to submit evidence, whether it is in the form of a permit or notice of intent to issue a permit; and it was not in the application package. He stated if the Board has any questions, staff can pull the package and look through it; it is not in there; and the project engineer has admitted it is not in there. He stated the last page of the Ordinance states, “An applicant shall have six months from the date of formal site plan submittal to make all necessary revisions as required by Land Development Code.” He noted the findings of fact say he has interpreted that differently; he has interpreted that to mean every time a revision is submitted that the clock is restarted; the County has never made that interpretation as far as this record; and staff may have made that interpretation. Attorney Barkett stated staff is not authorized by law to create policy, but the Board is; if staff wants the Ordinance changed, there is a process to go through to change it; it brings the proposed change to the Board; and it is held up for public debate and discussion. He noted the Board, as the legislative body, makes the change; staff cannot make that change; the court will look at what the law says; and the law says all necessary revisions had to have been made within six months. He stated it is double-dipping; the applicant came before the Board before on an appeal to make sure the application was formally submitted before July 2001 so they could avoid the impact fee; it took more than 18 months to get the application approved; and it is contrary to the law.

Chairperson Colon inquired if the Board is all right with the findings of fact; with Attorney Knox responding it can do whatever it feels is appropriate. Commissioner Scarborough inquired does Attorney Knox want to change the findings of fact; with Attorney Knox responding negatively. Attorney Knox stated those are legal arguments and there is a rebuttal argument for every argument that is presented. Commissioner Scarborough noted he heard similar arguments at the last meeting; and inquired was there anything he heard today that he did not hear previously; with Attorney Knox responding negatively.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution denying the appeal of Noble Properties II and Troy Stephan pertaining to the H & M Real Estate, Inc.’s site plan approval. Motion did not carry. Commissioners Scarborough and Pritchard voted aye; Commissioners Higgs, Carlson, and Colon voted nay.

Commissioner Higgs expressed concern about Section 62-3205 and the time limitations. Commissioner Carlson stated she has similar concerns as Commissioner Higgs in terms of the time limit and the other issue the last attorney brought up; she does not feel comfortable with it at this point; and she does not know if it would help to have staff review the items. She inquired if an item is not in the packet as it should have been, why is that; and noted she would like some of those questions answered.

Commissioner Scarborough stated the Board took an action approving the item; it asked staff to prepare a findings of fact; and he would ask the persons voting in the negative whether or not they have reversed their position or whether they have specific disagreements with the findings of fact. He noted the Board is changing its prior motion; and it should be under Rule 13 as opposed to disagreeing with the findings of fact. Chairperson Colon stated she agrees with Commissioners Higgs and Carlson; and the Board was specific about what its concerns were in regard to the six months.

Commissioner Scarborough inquired is the Board reversing its prior action and disagreeing with some wording in the findings of fact. Commissioner Higgs responded she is concerned about the six months provision; and while staff is interpreting it one way, it is not her interpretation of the rule. Commissioner Scarborough noted the Board is reversing itself of the prior action.

Motion by Commissioner Scarborough, to reconsider the entire item concerning H & M Real Estate, Inc. under Rule 13.

Commissioner Higgs inquired how should the Board proceed. Attorney Knox responded it could move to rescind the prior action it took; the last time it authorized the resolution denying the appeal; the Board has reconsidered its position on the issue of the six-month completion, which was discussed last time as being a debatable point as there were two ways to interpret it; and the issue the Board needs to decide is whether or not staff’s interpretation was a reasonable interpretation or whether it was clearly wrong. He noted if the interpretation is clearly wrong, the Board needs to reverse its decision; but if it is a reasonable interpretation, the Board it can go ahead with it. Commissioner Pritchard stated at the time the applicant filed the site plan, the section was interpreted in such a manner that every submittal of a revised site plan constituted a new formal site plan that triggered a new six-month review period to make additional revisions identified; and inquired how can it be less clear than that. Attorney Knox responded it is clear that is what staff was doing; and the issue is whether or not the Ordinance permitted them to do that or whether it was clearly wrong for them to take that position. Commissioner Pritchard expressed concern if staff is not given the leeway and discretion to perform their job, everyone is going to be coming before the Board; stated it is staff’s job to make decisions such as this; and they are going to be put in a position of not making any decision other than to show up on time and leave.

Commissioner Higgs stated it is a gross misrepresentation of fact; staff has said they are not doing it that way any more; they are not interpreting it that way; and an applicant shall have six months from the date of formal site plan submittal to make all necessary revisions. She noted formal site plan includes the paying of fees, the application, and all those things; one does not restart the clock; six months is six months and formal site plan submittal is formal site plan submittal; anything else is something contrary; and the Board’s concern over how this was handled is valid. She stated the Board should take the proper action. Commissioner Pritchard noted it is not valid. Commissioner Scarborough stated the Board is going to the essence of the issue; it should not be discussed until a motion to Rule 13; the item has been heard and voted on; and all the discussion is out of order.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to move to Rule 13 for H & M Real Estate, Inc. Motion carried and ordered unanimously.

Commissioner Scarborough stated the original item is back on the floor. Commissioner Higgs noted the issue with the appeal is the site plan approval. Commissioner Scarborough stated that is correct; what is before the Board today is to ask staff to prepare some wording affirming the Board’s action; it is reversing that, which is fine; the majority rules and everybody agrees; and the Board is ready to go. Commissioner Higgs stated a motion to approve the appeal would negate the existing site plan and the applicant would start over. Chairperson Colon noted the applicant is not leaving happy today due to the decisions the Board made prior; it has to go by the rules; and the applicant has to start from scratch. Commissioner Pritchard inquired would the applicant submit a new site plan. Commissioner Carlson stated Attorney Knox needs to guide the Board in terms of the legal issues; it cannot open the issue as a public hearing as such hearing was previously closed; the Board has gone back and reversed that; and inquired where does it leave the Board now. Attorney Knox responded the Board is in the decision right now of whether to approve or deny the appeal on the site plan. Commissioner Pritchard inquired if the appeal is approved, where does it place the issue. Attorney Knox responded if the appeal is approved on the basis of the six-month requirement, the Board would have to declare the site plan null and void; and the applicant would have to start all over again with a new site plan to be resubmitted. Commissioner Pritchard inquired how long is the process. Permitting and Enforcement Director Ed Washburn responded it sometimes takes a month or longer; it is a 15-day turnaround for the comments; and he is assuming the comments are not going to change.

Assistant County Manager Peggy Busacca inquired due to the wording in the past that said one has six months, would it open this up to a vested rights as well; with Attorney Knox responding it could.

Commissioner Carlson stated it is now staff’s policy to look at the six-month time frame differently; and inquired has it always been in the way staff applied that. Mr. Washburn responded until November 1, 2002, it had always been done the way H & M Real Estate, Inc. processed its site plan. Commissioner Carlson inquired what drove staff to decide that is a different way of treating it. Mr. Washburn responded it was prior to the H & M appeal; the H & M appeal letters were approximately the second weekend in December 2002; there were discussions about that on a couple of other site plans; and each time a site plan is submitted it can be a formal submittal. He noted that is the practice the Land Development Section had been using; to be fair to everybody, he told them on November 1st they have six months to complete the site plan; that is adequate time; and if they need an extension, they are put on notice at that point. Chairperson Colon stated the County would not be jeopardizing a procedure that was followed based on what was the practice at that particular time. Commissioner Carlson noted staff chose to change the practice prior to the H & M Real Estate, Inc. item; with Mr. Washburn responding that is correct. Chairperson Colon noted the Board is at a point of whether it is going to approve or deny the appeal.

Attorney Knox stated what Mr. Washburn has pointed out is that the Ordinance may be susceptible to two different interpretations; if that is the case, it apparently was susceptible to one interpretation before November 1, 2002 and it was susceptible to a different interpretation after that; if the Board agrees with that position, it can either approve or deny the appeal; and in order to deny the appeal, the Board is going to have to find that the interpretation prior to November 1, 2002 was clearly wrong.

Commissioner Pritchard inquired was the developer notified of the six-month rule change; with Mr. Washburn responding the site plan was approved prior to November 1st and the applicant was notified each time during the process that he had six months. Commissioner Pritchard stated the County is creating a monster out of an issue; if the applicant falls into a category, he falls into a category; to continue talking about this based on whether Publix is moving across the street is foolishness; and it has a 20-year lease it is getting out of and getting into a new one. He noted there are other properties looking to move into the old Publix; the issue is it was operating under what was a valid procedure at the time; it was never told otherwise; and now the County is grasping at straws and should not do so.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution denying the appeal of Noble Properties II and Troy Stephan pertaining to the H&M Real Estate, Inc.’s site plan approval.

Commissioner Scarborough stated if he was the applicant he would come in on a vested right as there was something from staff saying the prior interpretation in writing was acted on; now the County is changing the rules; he predicts the Board will hear the issue again, not as a new item, but as a vested right; and the item is not going to vanish with the Board’s action today. He noted it is difficult to have the same letter going out to everybody historically, then the rules change in November 2002, and now saying everything in the past is completely wrong, illegal, and does not apply; it is easier and more prudent for the Board to say it must have been reasonably debatable; otherwise, it would not have had prior actions over the years, assuming the other theory; and to vote against Commissioner Pritchard’s motion, the Board has to say staff was clearly wrong and nobody raised a single issue over many years.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Higgs and Carlson voted nay. (See page for Resolution No. 03-031.)

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the Findings of Fact for H & M Real Estate, Inc. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

The meeting recessed at 12:11 p.m. and reconvened at 1:06 p.m.

REQUEST FOR FUNDING, RE: 2005 BASE REALIGNMENT AND CLOSURE PROCESS

J. B. Kump, representing Congressman Dave Weldon, stated the Base Realignment and Closure (BRAC) process is an important issue to everyone; this initiative is different than the previous ones; Patrick Air Force Base (PAFB) targeting is quite likely; and it is worth the attention if PAFB is going to be defended against an unreasonable closure. He noted it has been stated by the Secretary of Defense that the BRAC is going to be deeper than any previous BRAC; it is at a higher level; the Secretary of Defense will be the decision maker; and Congressman Weldon has discussed the issue and his position on BRAC with each Commissioner. He stated such position is that PAFB is a potential candidate; and the community needs to do everything it can to preserve PAFB, not only for the communities’ interest, but the betterment of the United States. He stated five years ago, Congressman Weldon was a founding member of the Space Coast Military Alliance; and such Alliance is well positioned to do the job of leading the efforts to immunize PAFB against a possible closure. Mr. Kump noted it is with the organizational members that he is appearing here today to ask the Board to consider the request; the Alliance has outstanding, well-qualified members; and it is well equipped to mount a community-wide effort.

Commissioner Pritchard stated the County cannot afford to lose PAFB.

Glenn Vera, representing Space Coast Defense Alliance, stated he does not need to tell the Board the importance and impact space has to the community and entire region; Cape Canaveral Air Force Station is considered a national asset and safe; but unlike the past, PAFB may not be as secure as it has been. He noted between 1997 and 1999, he was a member of the 45th Space Wing working in the operations group; PAFB was secure as it served as a port base for Cape Canaveral; today it may not be as secure as it used to be; and the major reason is due to the current Secretary of Defense. He stated the Secretary of Defense has a lot more clout than has been held previously; he will make a lot of the decisions; his last assignment before he retired was with the joint staff in the Pentagon; and was able to work with Secretary Rumsfeld as part of the Space Commission process. Mr. Vera noted Secretary Rumsfeld is a no nonsense individual; he is concerned about mission; he wants to know the impact to closing a base and the war fighting capability of the military; and if there is no impact, Secretary Rumsfeld may want to close it. He stated the impact is going to be felt by a lot of militaries and will affect the whole region economically; there are a lot of retirees here; many of them could decide to relocate to another area as they like to be close to an area with a base nearby; and the impacts will be felt in Brevard County. He urged the Board to support the Alliance in the fight to keep PAFB open.

Randy Harris, representing Space Coast Defense Alliance, stated the Alliance has been in existence for five years; its mission is to be a community-based committee designed to enhance, protect, and maintain the military’s presence on the Space Coast of Florida; it has been successful in securing grants to help support the Base, improve its infrastructure, defray the potentials, and lessen the visibility on the scope of PAFB and Kennedy Space Center; and the emphasis on BRAC and its high political nature is something that has not been dealt with before. He noted the Alliance is faced with a new challenge; the entire community needs to come to the forefront now and support PAFB, which has been a staunch partner of the community for many years; it has been his privilege as past chairman of the Military Affairs Council of the Cocoa Beach Chamber to participate in awarding many of the enlisted personnel and officers of PAFB who contribute a tremendous amount to the community; it is not only an economic impact; and there are many things that have been going on from the support of PAFB. Mr. Harris stated it is time now for the community to come forward and support the fight; everyone needs to fight the fight to make sure PAFB does not make the list that is coming out the end of this year; and requested the Board support the Alliance and seed the effort with $15,000 to help establish a part-time staff person, website as a communications portal for the community, educational interface to the community to bring the message of what needs to be done and how to fight the fight, mailings, brochures, speakers bureau, and administration.

Chairperson Colon stated the long vision is to look for someone who will lobby on behalf of the community.

Commissioner Pritchard stated he has spoken to Mr. Harris and Congressman Weldon several times; the County cannot afford to not become involved; $15,000 is seed money; and it is the County’s obligation to make sure PAFB stays. He noted it may become an issue of having to hire a lobbyist, which would not be cheap; it could be $300,000 or $400,000, which is why the County needs to partner the community; and the $15,000 is to get out of the gate.

Commissioner Carlson stated she supports the request for funding; she is assuming the consultant would BRAC proof the Base; and inquired is that the idea. Mr. Harris responded the Alliance has contacted three consultants; the dollar amounts included in the Agenda Report are if the Alliance decides it has to go with consultants in Washington, D.C.; and the Alliance wants to be careful and effective. Commissioner Carlson stated supporting the item is a no-brainer; and inquired in the long-term perspective, is the Alliance looking at a consultant to be able to lead the County to the point where it would be able to advise the Base on how it could become part of the mission. Mr. Kump responded it is important to understand what the military’s role is, especially the military at the PAFB level; their role is as a non-player; the Alliance does not have a member of the PAFB community as a permanent member of a BRAC Board; but it has advisors and is able to obtain various information.

Mr. Kump stated in terms of the military doing things to BRAC-proof themselves and lobbying in Washington, D.C., etc., they are enjoined from that; and it is incumbent on the community because a military member or a civilian member of the military forces cannot actively do it.

Commissioner Scarborough stated it is an evolving mission; the military is beginning to redefine itself after the 9/11 incident; he does not know many people who are privy to that level of strategic planning; it may not be the historic role of PAFB, but evolving roles; and the County is able to get consultants who have not only contacts on the hill, but a capacity to anticipate potential evolving new definitions for military bases under an evolving military strategy. Commissioner Carlson stated public education of what the County stands to lose could elevate to such a point that gets the Governor’s attention that this is a critical area; and it may lead to a strategy down the road. Mr. Kump advised Governor Jeb Bush is already attentive to this; the Enterprise Florida organization has been activated to be supportive; there are 21 bases in the State of Florida, and Governor Bush has responsibility for all of them; and to the degree he can recognize the importance, he will. He noted there may be between five to eight bases that could potentially be listed in the State of Florida; and the Alliance wants to make sure PAFB is not among those.

Commissioner Higgs stated she is supportive of the effort to BRAC-proof PAFB, but all government bodies need to be sure they are accountable with taxpayers’ funds. She inquired if the Alliance could provide outcomes, measurements, and benchmarks at the next meeting so the Board is sure there is accountability for the funds it is committing; with Mr. Harris responding affirmatively.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve $15,000 from the General Fund Contingency to support the efforts of the Space Coast Defense Alliance to keep Patrick Air Force Base and Canaveral Air Force Station from being on the 2005 BRAC list for closure, with the Alliance providing outcomes, measurements, and benchmarks to the Board. Motion carried and ordered unanimously.

PARTICIPATING ENTITY AGREEMENT WITH COMMUNITY BASED CARE OF BREVARD,
INC., RE: PRIVATIZATION OF CHILD WELFARE SERVICES

J. B. Kenna, Operations Manager, stated on May 21, 2002 the Board voted to participate as a fiscal partner with Community Based Care of Brevard, Inc., a 501c(3) specifically formed to compete for a State Department of Children and Families (DCF) contract to privatize child welfare services in Brevard County; the next phase of negotiations are in two parts; Community Based Care of Brevard, Inc. must negotiate a start-up contract with the State to develop a system of care and put in place an infrastructure to support transition to a services contract; and the final phase is negotiations of the actual services contract in which Community Based Care of Brevard, Inc., a partnership between Children’s Home Society of Florida, Inc. and Devereux of Florida, Inc., assumes specific child welfare activities currently performed by the State. He noted in order to move forward with County participation in the privatization effort, the Board must agree on which line of credit option should be included in the participating entity agreement with the two partners; it must also agree to a buyout option; and staff has outlined three options for the recommended line of credit and a recommended buyout option. He stated the buyout option includes if the County decides not to partner further with Community Based Care of Brevard, Inc., once the services contract is executed, the County would agree to leave its $1 million line of credit available during the first year of service and buyout its partnership commitment for $200,000 in cash subsequent to the first year. Mr. Kenna stated the three recommended line of credit options include the Board’s approval for staff to pursue Temporary Assistance to Needy Families (TANF) dollars with the consulting group PCG; the County has an executed Contract with PCG and is working with it to identify a number of services that are currently funded through General Revenue toward TANF eligible activities; and should staff be successful in applying to the State and being awarded TANF, the entire startup contract would be paid for with such funds. He noted option 1 is for the County to use TANF dollars received for startup costs and purchase or issue a $1 million line of credit required by the services agreement; and if the TANF is not received, the agreement would be renegotiated. He noted option 2 is for the County to use TANF dollars; however, if such dollars are not awarded, the Board would commit to purchasing a line of credit; and option 3 is for the County to use TANF dollars if it receives them, and if not, the Board would withdraw from the Community Based Care of Brevard, Inc. Agreement or partnership.

Carol DeLoach, representing The Devereux Foundation, Inc., expressed appreciation to the Board for its support; and stated it is not only the philosophy of community based care, but the actual involvement, creation of a lead agency, and participating in the process. She stated Devereux is hopeful the Board will find it agreeable to continue with the process; and it is a pleasure to work with County staff.

Rene’ Ledford, Children’s Home Society, concurred with Ms. DeLoach’s comments; and expressed gratitude to the Board and staff for their commitment to the children of Brevard County and the renewed commitment to the partnership. She stated with the initiative is the opportunity to change things and develop a system that is going to work best for the children; it is exciting and challenging; it is something that needs to be done; and with the resources in Brevard County and support of staff, The Devereux Foundation, Inc., Children’s Home Society, other providers, and the Together in Partnership (TIP) is going to be instrumental in helping develop the system of care. She noted Brevard County has a better chance than most to make a difference and do this right; and she is hoping it can continue to move forward and look to the future.

Mr. Kenna stated staff provided a revised agreement; there were no substantive changes made that needed to be agreed to by Children’s Home Society of Florida, Inc. and The Devereux Foundation, Inc.; and the changes were technical in nature.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Line of Credit Option #1 to use TANF dollars received for start-up costs and to purchase or issue $1 million line of credit for services contract, and if TANF is not received, the Agreement is renegotiated.

Commissioner Pritchard inquired is the only difference between options 1 and 3 is option 1 includes if TANF dollars are not received, the agreement is renegotiated, and option 3 is if TANF dollars are not received, the County would withdraw; with Mr. Kenna responding that is correct.

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

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve recommended Buyout Option that if the Board decides not to partner further with CBC once the services contract is executed, Brevard County agrees to leave its $1 million line of credit available during the first year of services and to buyout its partnership commitment for $200,000 after the first year.

Commissioner Pritchard inquired were there any other options considered before staff narrowed it down to this option as being the most palatable; with Mr. Kenna responding affirmatively. Mr. Kenna stated in the initial contract, the agreement called for each agency to leave a $400,000 line of credit on the table; after discussion with the County Attorney’s office, its position was that it would not be allowable for the Board to leave a line of credit in perpetuity; staff went back to the partners and negotiated a reasonable number; and it came to this conclusion as it allows the County to share in some of the risk and have some fiscal partnership. Commissioner Pritchard inquired is some of the risk $200,000; with Mr. Kenna responding affirmatively. Mr. Kenna stated during the first year, the County has to commit to leaving the $1 million line of credit on the table; after the first year, Community Based Care of Brevard, Inc. would be in a better position fiscally to purchase its own line of credit or develop the other partnerships; but subsequent to the first year, the County should get paid back for any dollars that remain on the table with the line of credit; and the $200,000 would be the final bottom line.

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

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Participating Entity Agreement with Children’s Home Society of Florida, Inc., The Devereux Foundation, Inc., and Community Based Care of Brevard, Inc. for privatization of child welfare services. Motion carried and ordered unanimously. (See page for Agreement.)

Commissioner Higgs stated it is important for people to understand the commitment of the Board to the children of Brevard County who are in jeopardy; she is proud that it is trying to make this happen; the County is a leader in the State; and it is going to try to continue to negotiate the right arrangement. She noted DCF is working with the County and partners; everyone is committed; but if it cannot be done with the resources DCF is willing to give Brevard County, it is not going to proceed to come back with a recommendation; and when it meets with the Legislative Delegation, it wants to emphasize that the County, along with its partners, are at the table and stepping up, but it cannot do it if the support and resources are not there.

PERMISSION TO NEGOTIATE AND ORDER APPRAISAL, RE: MORNINGSIDE DRIVE
ON MERRITT ISLAND

Commissioner Pritchard inquired why the County does not look at the property, figure out what it might be worth, enter into a contract or negotiation, and then go into the appraisal instead of authorizing the appraisal first.

Transportation Engineering Director John Denninghoff responded it is an option staff can pursue; ordinarily, it has some idea as to what the property is worth prior to approaching an appraiser and the willingness of the seller to negotiate; staff typically gets the appraisal when there is the likelihood of a positive outcome; however, on many occasions, it has received the appraisal well in advance of contact with the seller.

Commissioner Pritchard inquired about changing the policy and operating in the same fashion as a potential purchaser for residential property; and noted he does not like the idea of spending $5,000 for the appraisal, only to not have it go any further.

Chairperson Colon requested staff provide a report to the Board on the kind of impact such action would take.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to authorize Land Acquisition staff to order an appraisal and negotiate for property acquisition associated with a stormwater treatment pond on Merritt Island. Motion carried and ordered unanimously.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to authorize Land Acquisition staff to evaluate the current procedure of appraising first and negotiating second, consider negotiating first and if it results in a contract, have it pending appraisal, and return to the Board with what staff would consider to be the most fiscally responsible way to handle appraisals. Motion carried and ordered unanimously.

CONTRACT FOR SALE AND PURCHASE AND ADDENDUM WITH ANTONETTA
JONES AND DARCIA JONES FRANCEY, RE: ACQUISITION OF PROPERTY
ON LAKE WASHINGTON ROAD

Commissioner Carlson stated staff has negotiated with the sellers; the appraised value has come in at 110%; she questioned it at the beginning; and the only alternative is to condemn the property, which would cost two to three times more.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to execute Contract for Sale and Purchase and Addendum with Antonetta Jones and Darcia Jones Francey for acquisition of property on Lake Washington Road; and authorize payment for the parcel, closing costs, and real estate commissions associated with the purchase. Motion carried and ordered unanimously. (See page for Contract for Sale and Purchase.)

CITIZEN REQUEST, RE: ACTIVATION OF TRAFFIC SIGNAL AT WUESTHOFF MEDICAL
CENTER IN MELBOURNE

Emil Miller, representing Wuesthoff Health Systems, stated a new hospital was opened at 250 Wickham Road, Melbourne, in the middle of December 2002; there have been discussions between the City of Melbourne and Brevard County concerning the activation of a traffic signal at the intersection of Wickham Road and Technology Drive; and although he understands and realizes the most recent traffic warrant study done in the beginning of January 2003 does not meet the warrant requirements for volume, he requests approval for activation of the traffic signal, effective immediately based on the hospital’s concern for the public’s safety. He noted the type of clientele coming on and off any hospital campus are distinct and different, and in a different need class than the general public; many individuals have physical limitations and are on campus for physical therapy treatments; people with casts or braces would be restricted in their motor activity or ability to turn and look; and there is a high amount of traffic coming through the Emergency Medical Services (EMS) system to the emergency room. Mr. Miller stated there is also the emotional factor; some individuals are distressed and distraught; their minds and thoughts may be some place else; and the primary consumer of health care today is 65 years of age or older. He stated the traffic signal would reduce the safety risk to the public; the hospital was designed, moved, and focused toward the corner of Technology Drive and Wickham Road; some time elapsed between when Wuesthoff Health Systems first purchased the property and when it finally commenced construction in 2001; the understanding was that the traffic signal would be in place at Technology Drive; and requested the Board’s support for such signal.

Traffic Engineering Director Dick Thompson stated staff collected data the second week of January 2003 to prove itself either right or wrong that a traffic signal was not warranted at this time, with the understanding it could be warranted once the hospital and ancillary offices, etc. were up to full capacity. He stated the original traffic study performed included a portion of traffic from Space Coast Credit Union, with a driveway connection to Technology Drive, which would help to get the numbers sufficient for the warrant; as of this date, the connection drive has not been constructed; therefore, there is no traffic from Space Coast Credit Union to help supplement the hospital’s volume. He noted staff ran the numbers and they came lower than what warrants require for approving a traffic signal; it is staff’s opinion such signal is not warranted at this time; and once the driveway is connected to Space Coast Credit Union and the hospital is close to 100% capacity, the traffic signal may be warranted.

County Manager Tom Jenkins stated Mr. Thompson is referring to the manual standards for traffic engineering; as a professional engineer, Mr. Thompson is obligated to make his recommendations based on the standards; it does not preclude the Board from its authority to consider other issues; but Mr. Thompson’s comments are solely based on his liability and licensure exposures.

Commissioner Pritchard stated there are other considerations here; getting in and out of hospitals with the emotional and impairment issues is a consideration; there is enough vehicle traffic there that it creates an issue; and the one thing the County does not need is accidents out front. He noted people need to be able to arrive and depart from the hospital safely; and they do not need to worry about oncoming traffic.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve request by Emil Miller, President/CEO of Wuesthoff Health Systems, for activation of a traffic signal at Wuesthoff Medical Center on Wickham Road in Melbourne on February 7, 2003. Motion carried and ordered unanimously.

WAIVER OF VARIANCE FEE, RE: CATHERINE BALDASSARE

Catherine Baldassare stated she applied for a variance on her fence in November 2002, which was granted; she was charged $598, which she had to put on her credit card; and requested the fee be waived as the fence already existed when she purchased the house. She noted she cannot afford the variance fee; she is having to pay interest on it; and reiterated her request for the Board to waive the fee and take same off of her credit card. She noted she purchased her house in April 1998; the fence was already there; one reason the fence could not be moved back was due to the trees in the yard; and she also has a pool. She stated there is a law that the fence has to be six feet with a pool in the yard; the people that are the problem in the neighborhood are the ones who called Code Enforcement on her; it cost her $598.000; and she is a single mother and brought her income taxes to show the Board she cannot afford the variance fee.

Planning and Zoning Director Mel Scott stated Ms. Baldassare was granted the variance; there is nothing in the Code that grants existing fences a grandfathered status; if a fence is in place improperly, it is subject to a Code Enforcement action; and Code Enforcement is not pro-active but reactive. He noted a call was made; the remedy was sought and it was received; the fence is now consistent with the Code due to the variance; and he attached to the Agenda item the Board’s Policy, which approves consideration of fee waivers.

Commissioner Pritchard inquired was a survey done when Ms. Baldassare purchased the house; with Ms. Baldassare responding negatively. Ms. Baldassare stated the existing owners gave her their survey they had done when they purchased the house in 1993; she did not get a survey as she is self employed and no bank would loan her the money to purchase the house; her father loaned her the money; and she makes the mortgage payment to her father.

Commissioner Pritchard inquired does the survey have the fence on it; with Ms. Baldassare responding affirmatively. Ms. Baldassare stated she had a sprinkler system installed which was one of the reasons she could not move the fence as it would have been a major expense; and that is why she applied for the variance.

Commissioner Pritchard stated the fence is 10 feet from the road; Code Enforcement says it has to be 20 feet and Planning and Zoning Department says only 15 feet; so Ms. Baldassare is five feet off. Mr. Scott responded the fence was in the side setback; the height limitation is four feet; the fence is six feet; and Ms. Baldassare received a variance of two feet over the four-foot fence height limitation. He stated Ms. Baldassare could have moved the fence out of the setback to the interior of her lot and kept it at six feet; but she would have incurred the expense with the sprinkler heads being moved. Commissioner Pritchard inquired if the fence is wooden; with Ms. Baldassare responding affirmatively.

Commissioner Scarborough inquired has Mr. Scott reviewed Ms. Baldassare’s income tax she brought with her today; with Mr. Scott responding negatively. Commissioner Scarborough stated the County may need to make a finding of fact to fall within its Policy, which includes persons requesting being classified as low income based on the U.S. Bureau of Census Guidelines. He requested Mr. Scott review Ms. Baldassare’s income tax; stated it is not appropriate for the Board to make it part of the public record as it is private; and Mr. Scott could advise whether or not Ms. Baldassare meets the criteria.

Chairperson Colon stated the item will come back to the Board for further discussion later in the meeting.

APPEAL OF SITE PLAN ACCESS REQUIREMENTS, RE: MILLENIUM DEVELOPMENT

Attorney David Norris, representing Millenium Development, requested a waiver of the paving requirement for the driveway to the Walkabout Golf Course Clubhouse; stated the golf course at Walkabout has been completed for approximately one year; the applicant has been going through the various steps needed to get the golf course open; and he is down to the last few items. He noted the driveway goes from Folsom Road to the Clubhouse; Folsom Road was recently paved by the County; the applicant paid approximately $200,000 for the paving; and the next step is to get to the Clubhouse. He stated the reason for the request is the ultimate entrance to the Clubhouse will be through Walkabout Way, which is one of the roads within the community; Walkabout Way is presently going through the process of approvals and permits; the applicant is some time off from getting approval to construct Walkabout Way; and requested the Board not require Millenium Development to pave the driveway now as it may have to tear it up and redo it again when it gets through the approval process for Walkabout Way. Attorney Norris stated the cost may be as much as $100,000 to pave the driveway and tear it out; and requested the Board grant the waiver so Millenium Development does not have to pave the driveway now. He stated when it gets through the final approval process, it will do the paving at that time; he has conferred with the County Attorney, who concurs that the Board has the power to grant the waiver; Millenium Development does not see any public safety or purpose served by requiring the applicant to do the paving and then tear it out; and reiterated his request for the waiver.

Commissioner Pritchard stated in residential construction the driveway is never paved until the house is nearly completed; and he is not aware of the threshold on commercial construction and whether the driveway has to be paved at a certain point during construction. Attorney Norris stated the requirement is that Millenium Development has to construct the driveway now; but the Board is empowered to waive it. Commissioner Pritchard inquired what is on site. Attorney Norris responded there is a temporary clubhouse that is ready to open; there is a tremendous amount of landscaping around it; and there will be a paved parking lot. Commissioner Pritchard noted there is a manufactured structure for the temporary clubhouse until the other clubhouse is built; with Attorney Norris responding that is correct. Commissioner Pritchard inquired where is parking for the temporary clubhouse for the golfers; with Attorney Norris responding next to the temporary clubhouse. Commissioner Pritchard inquired when will the parking lot be paved; with Attorney Norris responding before the clubhouse is opened. Commissioner Pritchard inquired will the new clubhouse be built adjacent to the temporary clubhouse; with Attorney Norris responding the permanent clubhouse is the same site as the temporary clubhouse, and the parking lot will stay. Commissioner Pritchard inquired how long is the unpaved driveway; with Attorney Norris responding 2,200 feet, which goes from Folsom Road to the clubhouse. Commissioner Pritchard stated he understands why Millenium Development does not want to tear something up during the construction, and inquired is it going to create a problem for the golfers; with Attorney Norris responding negatively.

Commissioner Scarborough inquired is the driveway temporary or will it ultimately be paved; with Attorney Norris responding it will be paved. Commissioner Scarborough inquired will the driveway be put down with the sub-surface that will support the paving; with Attorney Norris responding affirmatively.

Eugene Gerliche, representing Millenium Development, responded the temporary driveway will be abandoned. Commissioner Scarborough inquired will the Development put marl or shell there; with Mr. Gerliche responding affirmatively. Commissioner Scarborough inquired after the temporary driveway is abandoned, what happens. Mr. Gerliche responded without the asphalt on the stabilized driveway, the material will be mixed into the sub-grade for the collector road and reused in place. Commissioner Scarborough noted so there will be a road there. Mr. Gerliche responded yes, and it will be for 1,700 feet of the 2,200 feet. Commissioner Scarborough inquired is Millenium Development going to build to the extent it has created a road with the sub-base that would support the road, or does it have to require additional work. Mr. Gerliche responded the subdivision roadway will have a stabilized sub-grade, which will be manufactured from the stabilized driveway; and the Development will bring in eight inches of lime rock or coquina and compact same. Commissioner Scarborough inquired when does Millenium Development see this occurring. Mr. Gerliche responded the Development is currently responding to the first review comments by County staff and anticipates submitting its comments in less than two weeks. Commissioner Scarborough inquired when would the Development be moving from the temporary road to the permanent entrance road; with Mr. Gerliche responding approximately six to nine months. Commissioner Scarborough stated part of his motion could provide that the Development has eight months with the temporary road and no more. Attorney Norris noted the only problem would be if there was a problem in the approval process. Commissioner Scarborough stated the County does not want to do things in perpetuity. Attorney Norris inquired if the Board can tie the motion to after Millenium Development receives its permits; with Commissioner Scarborough responding he cannot support the issue open-ended and needs to have some time parameter.

Mr. Gerliche stated originally the Development’s appeal was presented to County staff with a 12-month time frame to give a time certain, but it removed such time frame from the request. Commissioner Scarborough inquired does staff have any comments before he makes a motion; with Permitting and Enforcement Director Ed Washburn responding the 12 months is fine, as the Board should set a time certain.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to waive the requirement for a paved access from Folsom Road to Walkabout Golf Course Clubhouse for a period of 12 months to allow Millenium Development to obtain approval of an amendment to the Site Plan to locate the paved access in the right-of-way of Walkabout Way. Motion carried and ordered unanimously.

The meeting recessed at 2:10 p.m. and reconvened at 2:20 p.m.

Planning and Zoning Director Mel Scott stated he can confirm that the applicant meets Criteria 3(b) in the Policy concerning low-income status.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve request by Catherine Baldassare for reimbursement of variance fee in the amount of $598.00 as Ms. Baldassare meets the criteria established for fee waivers in Policy BCC-50. Motion carried and ordered; Commissioner Higgs voted nay.

DISCUSSION, RE: FEDERAL REVENUE SHARING

Budget Director Dennis Rogero stated the item is a proposal by the New York City Council to create an $80 billion revenue sharing program between the federal government, counties, and municipalities; and the proposal is to amend the Economic Growth and Tax Relief Reconciliation Act of 2001 by diverting one-third of the funds to the relief of local taxpayers. He stated the current law reduces federal revenues by $240 billion; and to receive this aid, counties would be required to present a plan to share the funds with all local governments within their boundaries on an equitable basis. He noted all units of government receiving the aid will be obliged to use at least half of it for property tax relief; and the Council requests Brevard County conduct an analysis to measure the degree to which the proposal can alleviate the County’s fiscal issues, and share the results with such Council.

Commissioner Scarborough stated New York City has sent a letter to everybody in the United States of America asking them to do an analysis; the probability and likelihood of this going far is remote; however, it has the potential for creating a great deal of discussion and work at this level; and it is not a prudent utilization of staff and Board time. He noted he cannot vote in favor of the item; and if the program passes, the County would be just as much a participant whether or not it entered into the initial discussion.

Commissioner Pritchard inquired how much staff time will be involved to create the analysis; with Mr. Rogero responding he does not know. Mr. Rogero stated he has tried to come up with a ballpark figure, which is difficult; and staff would have to address a number of different issues, including the distribution question, present unfunded needs, and future unfunded needs that will develop for FY 2003-2004. Commissioner Pritchard stated the proposal is talking about an enormous amount of money; the funds that could be available to Brevard County are substantial; he does not want the County to not be one of the players in the game; but he does not want staff spinning their wheels and devoting a tremendous amount of time to create something that is an exercise in futility. He noted he is looking for staff’s insight as to the chances of making the 7:10 split and what it is going to cost to do same.

County Manager Tom Jenkins responded staff would have to talk to Florida Association of Counties (FAC) and League of Cities to see if anybody else is taking the proposal seriously, including what is happening Statewide; if there are actions Statewide, there may be a higher level of interest in it; but if nobody is going to do anything, Brevard County would be spinning its wheels. He noted estimating the total amount of ad valorem revenue raised with all the millages in the County would not be difficult; it would receive a portion of it based on the pro rata share of the total millage; it is a matter of how realistic the proposal is in terms of where it is going to go; and if there are other local governments around the State pursuing it, the Board may want to consider it.

Commissioner Scarborough stated the ability for the County to participate in the distribution is not contingent on its participation at this phase; there is no connectivity that if the program passes, the County will get what it is entitled to; at this particular stage, it is fine to speculate; but if information is received from all the different entities that exist in the United States dealing with this subject, it would be an enormous amount to compile. He noted the proposal is a game that is being played by the City of New York; he is insulted by the letter; and he will vote in opposition.

Commissioner Carlson concurred with Commissioner Scarborough’s comments; stated who is out to gain is New York City; and she would like to know what Governor Bush thinks about it. She noted if the State of Florida is to receive any aid, it is $4.6 billion; a large portion would go to three different counties; it is a convoluted political game the City is playing; and she will not support the item.

Commissioner Pritchard stated the Board should support staff looking into the opportunity and see what the level of involvement is with the League of Cities and whatever other entities that may be part of the proposal; he does not want to dismiss the issue; and if the County finds out it is wishful thinking, at least it will know. He noted staff could make some telephone calls to see who else is involved. Chairperson Colon stated staff could get feedback and come back to the Board for it to decide if it wants to move forward. Commissioner Carlson stated a letter could be sent from the Chairperson to Governor Bush asking what his take is on the issue; and Governor Bush would know what is going on with the other states and how the proposal is being run. Commissioner Higgs stated staff can check with the FAC and League of Cities; and the County Manager can provide a memorandum to the Board on the outcome. Commissioner Scarborough stated he still stands in opposition as he finds it insulting that the City of New York would play this game with all the elected bodies; some people will spend some time that could be better spent elsewhere; and the Board can get the information, but his comments still stand.

APPROVAL, RE: LEASING OF NETWORK SECURITY EQUIPMENT FROM BELLSOUTH

County Manager Tom Jenkins stated the Environmental Health Section moved to the State of Florida Public Health Department; however, it has stayed in the County’s building and is continuing to be part of the one-stop permitting process; the lease is an effort to allow the Section to be connected to the State and County computer systems for the review process; and Environmental Health Section is paying for it.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Lease relating to lease of Network Security Equipment from BellSouth. Motion carried and ordered unanimously. (See page for Lease.)

TASK ORDER 1 WITH TINDALE-OLIVER, RE: SCHOOL IMPACT FEES

Commissioner Higgs stated staff drafted a potential task order with Tindale-Oliver; some surrounding counties have impact fees; and provided information to the Board on those counties in the East Central Florida Regional Planning Council region. She noted Osceola, Seminole, Volusia, Lake, and Orange Counties have school impact fees; Indian River County does not levy school impact fees; the impact fees range from $2,800 to $1,138 for a single-family home; and if Brevard County is going to have a quality community, the ability to provide a quality education will be critical. She recommended the Board move forward on the Tindale-Oliver study so the County has a defensible school impact fee; stated industry is alive and well; the impact fees increased on transportation are not hurting the industry; and being able to provide schools are critical. Commissioner Higgs stated today there was an article in the Orlando Sentinel about Lake County; there is discussion between some of the school board members and members of the county commission about a moratorium on construction as the county is not able to provide school facilities; Brevard County does not want to be in that position; and the task order is a forward-thinking move by the Board to provide the necessary infrastructure.

Commissioner Pritchard stated this is only requesting a study, and inquired is it only for the unincorporated area of Brevard County; with Commissioner Higgs responding affirmatively. Commissioner Pritchard stated he does not like impact fees for any of the items; such fees are a bad way to raise money; it puts the burden on the homeowner as he or she is ultimately going to pay more for a house; and it takes a house out of the range of some people who might otherwise be able to afford housing. He noted impact fees also place a burden on families that do not have children; he realizes part of the ad valorem tax is for schools and education is a public benefit; but the quality of education cannot be tied into an impact fee as it is based on the ability of the instructor and curriculum. Commissioner Pritchard inquired what is the amount of the task order; with County Manager Tom Jenkins responding $41,373. Commissioner Pritchard stated since he is opposed to impact fees, he cannot support the study.

Commissioner Higgs stated construction costs keep revenues from being used to improve teaching and other things; and if all the funds are going into construction to keep up with growth, other needs cannot be taken care of.

Motion by Commissioner Higgs, to approve scope of services for Task Order 1 with Tindale-Oliver to provide a study on school impact fees.

Commissioner Carlson stated she does not have a problem with school impact fees; and inquired does the Board see the school impact fees and sales tax items fighting one another, and could the County lose both of them. Commissioner Higgs stated school impact fees are not going to generate enough money to take care of improving public education in Brevard County; Osceola, Seminole, Volusia, Lake, and Orange Counties all levy school impact fees and collect infrastructure sales tax of at least one-half cent; Brevard County collects neither; Indian River County collects the sales tax; and five of the Counties in the East Central Florida Regional Planning Council region do both. She noted nobody is interested in paying additional taxes; however, people are concerned about taxes being fair; they want new construction to carry its fair share; and if the County is going to make any argument for additional sales tax, it needs to first insure that people are carrying their fair share. Commissioner Carlson stated she agrees with the philosophy; it is only for the County; and the educational cost to the whole community is such that it is important to have all the cities on board. Commissioner Higgs advised the cities are part of the County’s Impact Fee Program in most cases; she is not sure which city is part of which part; but the cities can opt into the Program; and the County can offer to the cities participation if they desire. Commissioner Carlson noted the County does not know if the cities would be interested in participating prior to the study; and inquired did it learn anything from the last effort when it questioned whether or not it should do school impact fees. Commissioner Higgs responded the County did not ask about impact fees and asked about participating in school concurrency.

Planning and Zoning Director Mel Scott stated staff discussed the school concurrency issue with the cities and recognized it would be an undoable task; but it has never asked the school impact fee question to the cities. Commissioner Higgs inquired how many cities do not participate in a transportation impact fee.

Commissioner Scarborough stated he agrees with a lot of comments that have been expressed; Commissioner Pritchard is correct that there are some problems with impact fees; he agrees with Commissioner Carlson that part of any conversation needs to consider sales tax as all the adjoining counties have it; and people need to know that a large portion is paid by people coming into Brevard County. He noted he supports the study; he is interested in the amounts school impact fees would generate; the Board needs to be cautious; and construction is good now, but certain events could occur.

Commissioner Pritchard stated Commissioner Higgs mentioned improving education is tied into impact fees, but he disagrees; the educational system is based on curriculum, ability, and teachers; a lot of issues need to be addressed before the County imposes another fee and tax, such as why the County is building single-floor schools and not multi-story; and the idea is to be lean and mean. He noted many reports he has read by Fishkind and Associates say construction pays for itself in space; he will be happy to provide such reports to the Board; impact fees are detrimental fees; and they do not serve the purpose for which the County is looking to improve education. Commissioner Carlson stated she appreciates Commissioner Pritchard’s comments and understands where he is coming from in terms of impact fees; they do not accrue much over time and it takes a long time to accrue enough to do anything worthwhile; but Brevard County received information from Governor Bush indicating those counties that have already levied one-half cent sales tax will be looked upon more positively when it comes to operation dollars and how they are going to be dealing with the classroom size issue. She noted there are a lot of questions; Brevard County is doing everything possible to provide infrastructure support for schools, even though operational dollars are needed more than infrastructure dollars; and it may be represented to State government and allow the County to get a larger piece of the pie down the road for schools, which will hopefully improve the quality of life issue. Commissioner Carlson stated she will support the study; it does not mean she will agree with an impact fee; and she wants to hear from the School Board.

Commissioner Higgs inquired how many cities do not levy impact fees; with Mr. Scott responding Cocoa Beach and Melbourne Village do not levy any transportation impact fee. Commissioner Higgs noted it gives the Board some indication that the cities are interested in the issue, but it does not mean they are going to be interested in this.

Commissioner Scarborough stated he will second the motion.

Commissioner Pritchard stated if there is going to be a study, he would like it to include a couple of issues he mentioned, such as multi-story buildings, using less green space by going higher, and what the cost would be and how much money could be saved. He noted he would like to know alternatives, how to better utilize what the County has, and how to get into joint purchasing agreements that are meaningful to save money between the County and School Board; and whether the structure in place is overburdened in terms of too many administrators and not enough teachers. He stated there are a lot of variables that need to be addressed before the County decides to hit the new people in town with an impact fee.

Commissioner Higgs stated the impact fee study is a precise instrument that has to be accomplished in order to justify in court the imposition of an impact fee; there has to be a rationale nexus between the impact fee imposed and cost of new development before the Board can do it; so it is an accounting study as opposed to what Commissioner Pritchard is talking about. She noted those things are policy questions; this study is numbers and where the costs are; and most of the things Commissioner Pritchard is referring to are outside the scope of an impact fee study. Commissioner Pritchard stated it is not outside the scope when talking about the cost of construction; it is cheaper to go to a second floor than it is to build another wing; that is why he wanted the study to focus on alternative ways to construct that would be cost savings; and it would have an affect on the amount of the impact fee.

Commissioner Carlson stated the Board has done workshops with the School Board; it is due for another one because of classroom size; perhaps the School Board can lend some of the details the Board is looking for; and she is confident the School Board would be willing to talk to the Board about it. Commissioner Pritchard stated he supports the joint purchasing agreements. Commissioner Carlson stated there are a lot of things the Board can work with the School Board on to save money; and it may be open-minded to review same. Commissioner Pritchard reiterated his request for the Tindale-Oliver study to focus on alternative ways to construct that would be a cost savings. Chairperson Colon stated there is no support from the Board; it is set on what it wants to focus on, which is the numbers; and she does not support the study. Commissioner Higgs stated the firm is not into computing those kinds of issues. Commissioner Scarborough noted he understands what Commissioner Pritchard is saying; the Board will have further joint planning with the School Board; in the past, Bill Curry has told the Board the school system is under a tremendous amount of State monitoring control of how things come to pass; and the firm will generate some numbers of what could happen under certain conditions, which is only a portion of the formula. He stated if the Board got into the manner of constructing schools, it would need to impose the questions to the School Board; it should be the one that commissions the study as there are a lot of requirements he is not familiar with; schools are built a certain way for certain purposes; and he is not saying they are not important questions, but they are questions he would prefer to participate with the School Board on in joint planning. Commissioner Scarborough stated he supports Commissioner Pritchard’s concept, but it does not belong as part of this study and would be difficult to do it.

Chairperson Colon suggested a letter be sent to the School Board requesting a workshop be held with the Board and School Board in April or May 2003.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Pritchard and Colon voted nay. (See page for Task Order 1.)

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to authorize a letter be sent to the School Board requesting a workshop be held with the Board and School Board in April or May 2003. Motion carried and ordered unanimously.

WAIVE INTEREST ON FINES, RE: WILLIAM MOORE

William Moore requested the Board waive the interest on his fines that have occurred, and put them back with the Clerk’s Office so he can go back on the TAP Program, which he was court ordered to do.

Chairperson Colon stated the Board received Mr. Moore’s record and violations from the Clerk of Courts; and provided Mr. Moore a copy of the information and letter from Clerk of Courts Scott Ellis.

County Attorney Scott Knox stated his office looked into the issue; the 40% surcharge is added to the collection of fines; the County has an arrangement with the collection contractor; and he is not sure the Board can breach the Contract with the collection agency. He noted if Mr. Moore would like relief, it is probably up to the collection agency to reduce the fees. Chairperson Colon noted Mr. Moore cannot get the interest on fines waived through the Board; with Attorney Knox responding that is correct.

Mr. Moore stated he talked to the collection agency and it indicated the County could waive the interest on the fines. Chairperson Colon advised the Board cannot breach its Contract with the agency.

Attorney Knox advised Mr. Moore the collection company could amend its Contract to allow a reduction for his case if it so chooses, or it can negotiate the fee.

PUBLIC COMMENT - BEA POLK, RE: WORKSHOP WITH PROPERTY APPRAISER AND
TAX ABATEMENTS

Bea Polk inquired when will the workshop be held between the Board and Property Appraiser Jim Ford.

Chairperson Colon responded her office related the information to County Manager Tom Jenkins; Mr. Jenkins sent a letter to Mr. Ford with a tentative date of February 25, 2003 for the workshop; and the Board is waiting to hear from Mr. Ford. Ms. Polk inquired if Mr. Ford has denied attending the workshop; with Chairperson Colon responding she assumes Mr. Ford will be sending a letter back to the Board.

Ms. Polk expressed concern on tax abatements for companies that are not doing what they indicated they would do; and requested another workshop be held on the issue. She stated the companies are not being checked; and something needs to be done about tax abatements.

Commissioner Scarborough stated Economic and Financial Programs Director Greg Lugar monitors the tax abatement companies; and suggested Mr. Lugar provide a memorandum to the Board on how tax abatement companies are monitored and if other things need to be done to monitor the companies. He noted the Board revoked approximately 12 tax abatements last year after Mr. Lugar brought the information to it, as those companies did not meet the requirements.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct Economic and Financial Programs Director Greg Lugar to provide a memorandum to the Board on how tax abatement companies are monitored and if other things need to be done to monitor the companies. Motion carried and ordered unanimously.

Ms. Polk stated if the companies are not meeting the requirements, she would like the money back; it is taxpayers’ money; and inquired if the County is putting liens on the properties to get the money back.

Commissioner Pritchard stated he agrees with Ms. Polk’s comments.

PUBLIC COMMENT - ALLYN NEWMAN, RE: MASTER TEACHER CONCEPT

Allyn Newman stated he has a representative meeting with the Legislative Delegation trying to promote the master teacher concept which he has given to Attorney Scott Knox on a disk to provide the Commissioners; he hopes to give the Board a plan that may save approximately $100 million a year for Brevard County, without changing the budget for the School Board; a 12-month plan will reduce the use of the school each semester by approximately one quarter; and there would be teachers teaching teachers, principals teaching principals, and everybody responsible for their own issues, with no hiding behind staff. He noted whoever is the principal is going to be held accountable; nobody can hide behind the area superintendent and three or four other people along the way; there has to be a way to recoup those things; and he would like resource officers made a part of the School Board budget, but still under the control of the police departments; and such departments could put the funds they have been paying back into their own departments. Mr. Newman stated there would be more officers on the road and more protection for the community; it is a win-win situation; and requested the Board review the plan. He noted if the Board would like him to come back to discuss the issue further, it can place him on the agenda; and he will be present.

Chairperson Colon inquired if Mr. Newman has presented the plan to the School Board; with Mr. Newman responding he talked to School Board member Rich Wilson and provided copies of the plan to the School Board Attorney Harold Bistline.

Commissioner Pritchard stated he neglected to mention the 12-month plan when he was discussing ways to do things better; people talk for and against it; sometimes there are personal and selfish reasons; and other times it is because it is inconvenient. He noted when there are buildings sitting idle, one has to question why it is being done this way and not done other ways; a lot of things need to be addressed; and the Board needs to revisit the entire issue.

Mr. Newman requested he be invited to any workshop the Board may have; stated he has many ideas he cannot put on paper right now; he would like committees to review the information; and Representatives Allen and Needelman are going to have a bill or amendment to the plan in the near future. He noted the plan will be sent to Governor Jeb Bush to see if he wants to save money or not; and requested the Board’s support.

Commissioner Carlson stated the Board meets with the Legislative Delegation each year; there will be a meeting on January 30, 2003; and Mr. Newman is invited to attend and make comments.

County Attorney Scott Knox stated Mr. Newman’s report was electronically sent to each Commissioner.

SEVENTH RENEWAL TO AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT, RE: CONTROLLING ABANDONED ARTESIAN WELLS

Commissioner Pritchard stated in reviewing minutes of previous meetings, there were comments made by Commissioner Higgs and previous Commissioner Randy O’Brien concerning plugging artesian wells that are free-flowing throughout the County; Commissioner Higgs had a question about the County using public money to go onto private land; Commissioner O’Brien had a question about the partnership for 20 years and capping 473 wells at a cost of approximately $400,000; and the wells on federal and state properties have not been capped, which is not a partnership. He inquired is the Board looking at its action of going onto private lands and capping wells as a public good; and why it does not charge the property owners.

Natural Resources Management Director Conrad White responded the original concept of getting into the joint program for plugging the wells was that the homeowners may be more likely to report the wells if it was a joint program funded by government instead of the County having an enforcement mode to find the wells and force the owner to cap them; it is a common resource and cooperative program with the homeowners; and it seemed to be the best approach. He noted in terms of State properties, the St. Johns River Water Management District is plugging wells on its own properties; and he is not sure if it is cooperating with the federal government out of Kennedy Space Center or not.

Commissioner Pritchard inquired why the federal government is not capping artesian wells. Mr. White responded he will research the information and report back to the Board. Commissioner Pritchard stated there is a dire need for water; if the County does not manage its water supply today, it can face serious problems in the immediate future; it does not make sense for federal government to abandon the Program, if it is; and if the proposal is the least expensive way to do it and is in the public good, he will support it. He inquired how many wells are left to cap and what the federal government and State entities are doing; and stated he wants to make sure everything is covered. Mr. White noted he does not know how many wells are left to cap; new wells are placed on the list each year; as wells age, the well head breaks, and flooding occurs; and most of the large wells were plugged years ago.

Assistant County Manager Stephen Peffer stated staff will provide the Board with a status report.

Mr. White stated the number of wells listed for this year are 24; however, the list is incomplete; there are 24 wells with contracts to plug for this year; there are other wells on the list which property owners have not signed contracts for a variety of reasons; and some owners are either out of state or out of the country.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Seventh Renewal to Agreement with the St. Johns River Water Management District to allow for a licensed water well contractor to control abandoned artesian wells in Brevard County; and authorize the County Manager or his designee to execute renewal options as outlined in the Contract. Motion carried and ordered unanimously. (See page for Seventh Renewal to Agreement.)

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 3:15 p.m.

ATTEST:
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JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

(S E A L)