The Board of County Commissioners of Brevard County, Florida, met in special/emergency session on June 16, 1998, at 10:04 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Helen Voltz, Commissioners Truman Scarborough, Nancy Higgs, and Mark Cook, County Manager Tom Jenkins, and Assistant County Attorney Katherine Harasz. Absent was: Commissioner O?Brien.

The Invocation was given by Chairman Helen Voltz.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

Commissioner Scarborough requested all future Board meeting Agendas include Commissioners? reports.

Chairman Voltz inquired if Commissioner Scarborough has a report. Commissioner Scarborough responded Assistant County Attorney Eden Bentley had something to bring up, but it is best not to proceed at this time, and the issue will be brought to the Board on July 7, 1998. Ms. Bentley stated that would be the safest course of action.

Commissioner Cook wished Commissioner Higgs a happy birthday.

Commissioner Higgs stated she appreciates the Board?s willingness to meet; the issue of the declaration of a service area is important; and suggested the speakers be heard before the Board discusses the issue.

Jack Howley, City Manager of Palm Bay, stated he is surprised to see that the item on the Agenda is to object to the utility reserve area rather than to discuss the issue; and Palm Bay does not intend to be on trial today. He stated the Cities of Melbourne and West Melbourne have served notice on the City of Palm Bay that they intend to file suit; and on the advise of the City Attorney, he needs to stay away from any of the issues that may end up in court or litigation. He stated Chapter 180, Florida Statutes, authorizes municipalities to establish a utility reserve area in the unincorporated area outside of the city for the purpose of establishing a right of first refusal to provide water and sewer lines; it gives no city an absolute right to provide utilities in those areas, but is a right of first DISCUSSION, RE: PALM BAY ORDINANCE NO. 98-13 DESIGNATING WATER AND SEWER

refusal; and in the event there is someone else who can provide utilities better, it creates no obligation on people in those areas to connect. Mr. Howley stated subsequent to the City doing that, there was discussion concerning the process and people were rubbed wrong as to how the City Council approached it; and information was distributed to the property owners which was misleading.

He stated there will be hearings in the City of Palm Bay by the City Council at some point. He advised the area in the Ordinance identifies the legal area that is included; Carriage Gate, the Police Home Foundation, and Brandywine are not a part of the Palm Bay utility reserve area; and people will not be required to hook up in the utility reserve area unless their septic system or well fails. He stated the City has no plans at this time to put lines out there; it is declaring it a planning area; and while people have discussed it as a lands issue, it is a utility issue. He stated the issue is that Melbourne and West Melbourne covet the area and would like the ability to put additional lines in there; Melbourne already provides water service to Carriage Gate, the Police Home Foundation, and Brandywine and perhaps elsewhere; and West Melbourne would like to have sewer lines out there. He stated West Melbourne is laying claim to the area, and saying that Palm Bay is intruding in the area; and if this goes to litigation, they will get into those issues. He stated the City of Palm Bay has been attempting to negotiate with the Cities of Melbourne and West Melbourne; some understanding has been reached; and there are items on the City Council Agenda for June 18, 1998 to exclude areas. He stated when the City Council had a second and final reading at the public hearing, it was requested it not adopt the Ordinance but negotiate; and the City Council heard that, took it under advisement, and decided to exercise the City?s statutory rights to declare the utility reserve area, but would like to negotiate on specific areas of concern and take those out. He stated they have agreed that the area south of Malabar through Valkaria will be excluded; and they have reached agreement on the area north of Palm Bay Road in the vicinity of Dairy Road. He advised there have been proposals to remove areas in the northwest section, north of Palm Bay and U.S. 192, and west of I-95; but the position of Melbourne and West Melbourne has been they do not want to discuss that area unless Palm Bay revokes the entire utility reserve area. He stated the City Council understands the perspective, and is willing to remove areas under negotiation; and the City Council will consider options at its Thursday meeting as to the position of West Melbourne and Melbourne to remove the area in the northwest section, to negotiate where the utility areas should be, or whether the Council wishes to proceed as it has been, leaving the utility reserve area in place and negotiating what should be taken out, with the understanding if there is any development during the six-month term of the negotiations, it will be discussed where those people who are caught in the middle would best be served. He stated the City Attorney advises since Melbourne and West Melbourne have served notice that they intend to file suit, he is not free to sit down and have discussions with them, and as the dispute is between the Cities, it would be inappropriate for the City to jump in unless it has service areas or utility rights out there. He stated Chapter 180, F.S. is intended for municipalities to provide utilities outside the city limits in the unincorporated areas, and that is what the City is doing. He stated if, as Melbourne and West Melbourne contend, the Cities have some legal right to go into some areas because of the South Brevard Water Authority or capacity in their lines that allows them to serve a greater area, the City Council will look at that; and if that is the case, the areas will be removed from the utility reserve area. He inquired if the City Attorney wishes to speak; with City Attorney Nick Tsamoutales responding he has nothing further to add.

Commissioner Higgs stated she is concerned about the whole issue, but specifically with reserve area 3 to the south and east of the City in unincorporated Brevard County; the Valkaria area is mentioned, but the designation on the map goes down in almost the entire unincorporated area of South Brevard; and Grant, Micco and Valkaria are in that area. She stated the County has the right by special law and general law to have those areas as utility areas designated by the County. Mr. Howley stated he cannot comment on the legal issues; but the utility reserve area was first done with a broad brush at five miles around the City; and then they will discuss which areas are appropriate to be excluded. He stated in conversations with Malabar, areas that Malabar is interested in someday serving should be removed from the Palm Bay utility reserve area; and so they removed an area approximately five miles south of Malabar. He stated part of Grant and Micco are still in the area; there is a private utility at Barefoot Bay; and any community can offer to serve. He stated not having a utility reserve area does not prevent a community from serving, but if a person in that area wants to be served, he needs to come to the City first, and the City can turn the individual over to another utility if service from the City is not feasible. Commissioner Higgs stated Mr. Howley was only talking about the area south of Malabar, and she is talking about the entire area in South Brevard which the City designated; and she objects to Micco, Grant and Valkaria being included without coordination with the County because those are residents which the Board represents. Mr. Howley stated he will be happy to bring Commissioner Higgs? concerns to the City Council; and it can delete those areas if it chooses.

Chairman Voltz inquired if the City currently has the capacity for the whole City at buildout; with Mr. Howley responding there is capacity in the wastewater system at present; they are in the process of acquiring a reverse osmosis plant from Indian River County which will provide capacity for the water system; and they intend to add onto the system as things go. He stated the City has no immediate intention of developing utilities in the area; it is a planning area; if a development came in which exceeded the system, the City would add to the system; but the impact fees would be proportional to the future need to construction onto the system. Chairman Voltz stated currently the City does not have the capacity; with Mr. Howley responding currently they have the capacity to serve all the existing residences and structures in Palm Bay. Chairman Voltz stated the City buys water from Melbourne; with Mr. Howley responding the City buys water from Melbourne to supplement the wells that are being rehabilitated. He stated in the last few days the City has been supplementing the water supply from Melbourne, but it is in the process of obtaining a reverse osmosis plant within the next few weeks, and by the end of the year, hopefully the City will not be dependent on the Melbourne water except for an intermunicipal arrangement to provide water back and forth. Commissioner Higgs inquired if Palm Bay has consumptive use permits from the St. Johns River Water Management District and the Department of Environmental Regulation for the wells; with Mr. Howley responding yes, for 6.5 million gallons per day, and there are additional wells permitted that are not constructed yet. Commissioner Higgs inquired if it is the same for sewer; with Mr. Howley responding the City has a deep injection well for the purified water, and plenty of capacity. Chairman Voltz inquired about reuse water; with Mr. Howley responding they have reuse water and are distributing more and more of it.

Mark Ryan, City Manager of West Melbourne, distributed documentation. He stated on April 29, 1998 the Palm Bay City Manager informed them of the City?s intent to adopt the Chapter 180 water DISCUSSION, RE: PALM BAY ORDINANCE NO. 98-13 DESIGNATING WATER AND SEWER

and sewer reserve area; based on that information, they informed the City of Melbourne of what was transpiring; and they learned the City of Palm Bay was going to adopt an ordinance on May 7, 1998. He stated Melbourne and West Melbourne appeared before the Palm Bay City Council on May 7, 1998.

Chairman Voltz inquired if Mr. Ryan was notified before the first public hearing; with Mr. Ryan responding no.

Mr. Ryan stated on May 7, 1998 they voiced their objections; following discussion the City Council defeated the ordinance; and the Council directed staff to meet with the Cities of Melbourne and West Melbourne to attempt to negotiate the issue and report back on May 21, 1998. He advised of meetings with the City of Palm Bay; and stated they prepared a map showing the Melbourne and West Melbourne service areas and requested the same information from Palm Bay. He stated on May 12, 1998 the information was not presented by the City of Palm Bay; at the conclusion of the session, he made a compromise proposal to utilize the FP&L power line easement, also known as D6 alternative, as the northern boundary; Mr. Howley reviewed the issue; but on May 14, 1998 the City had a special meeting to adopt the reserve area. He stated the Cities of Melbourne and West Melbourne attended the May 14 meeting and made objections; and the ordinance passed on first reading. He stated the Council directed its staff to continue negotiations; the West Melbourne City Council rescinded his offer to consider the power line easement as an option for the northern boundary; and he was directed to use the Palm Bay Road extension of C-66 canal as the northern boundary for negotiation purposes. He stated they went into the third negotiation session on May 22, 1998; some additional items were presented and there was clarification concerning the issues; but due to the lateness of the negotiations, they were unable to report to their City Councils prior to the May 26, 1998 public hearing. He stated on May 26, 1998 the City Council approved the Ordinance on a 3 to 2 vote.

Chairman Voltz stated that was when they called a special meeting. Mr. Ryan stated on May 26, 1998 both Melbourne and West Melbourne Councils had scheduled meetings; however they had to reschedule. He stated the staff of Melbourne and West Melbourne were offered an opportunity to negotiate; they met with the City of Palm Bay again on June 5, 1998; and he proposed another compromise for the City of Palm Bay to remove all areas in contention for a six-month period to allow hard feelings to heal and fruitful negotiations to begin. He stated that would show a good faith effort on the part of Palm Bay; he suggested signing an interlocal agreement that no entity would enter into the 180 areas and nothing would occur in the contentious areas during the six-month period; but the City could not support that. He stated there were follow-up negotiations; they reiterated their issues; there were questions concerning Brandywine Estates and Carriage Gate Subdivisions being part of the reserve area; it was implied that even though the legal description and the map for the Ordinance did not include those developments, other language in the Ordinance would prevail; and read aloud from the Ordinance. He stated based upon the June 10, 1998 meeting, he and Henry Hill, City Manager for the City of Melbourne, presented the City of Palm Bay with notices of objections, verified complaint that the City has violated the Comprehensive Planning Act, and notice of intent to file suit.

Henry Hill, City Manager of Melbourne, stated the City of Palm Bay has taken unilateral actions in violation of every principle of intergovernmental coordination; and they have been trying ever since to find a mechanism, offer alternatives, or to try to come to a means by which the communities can agree as to what should happen in the various utility service areas. He stated Palm Bay does not have the capacity to serve not only inside the City, but outside the City; and there are a number of things that need to be done in order for the City to utilize the reserve area it has declared. He stated there are important issues facing the City of Melbourne; the City has invested huge sums of money to provide services in the disputed areas, particularly west of I-95; and the City has invested over $1 million for a looped system of waterlines to serve all of that area when it is developed based on the choice of the property owners in that area. He stated the City of Melbourne has worked with the City of West Melbourne to address matters where potential annexations have occurred, where boundaries are in question, and where services are in question; and it has been a surprise to learn that Palm Bay is interested in expanding its borders and is proceeding in the manner it has. He advised the matter was never brought up before the Water Supply Board; it was never communicated to the City of Melbourne in advance; and so a number of concerns exist regarding the direct interest of the City of Melbourne. He stated the Board should not have cities standing before it squabbling about the areas of potential annexation and potential utility services; there are mechanisms in place for intergovernmental coordination and cooperation; and those should be followed regardless of the other issues. He stated there is a basic principle involved in this; the County has a reason to object because it involves the Board?s constituents and only the unincorporated areas; those people have had the ability to pick and choose utilities as they wished; and Melbourne wants to support continuing in that way because that is the most appropriate way for the area to develop. He stated it has worked well in South Brevard for a number of years; and there is no reason for anyone to declare something and make a land grab. He stated it has not been a problem in the past with Melbourne and West Melbourne; they have coordinated those issues well; they have offered that to Palm Bay since the issue originally came up; and as Mr. Ryan indicated in the compromise that has been suggested, all they are asking for is some time to work this out and come up with a logical, reasonable way to provide the services. He advised of the City of Melbourne?s rights of service in the area under the previous South Brevard Water Authority franchises; stated the Melbourne City Council indicated it will be glad to work that through; but from the beginning Melbourne was pushed back into a circumstance where it could not sit down and resolve the issue in a timely manner; and that is what has forced the City?s objection. He stated Mr. Howley is of the belief the objection ends the negotiation, but that is wrong; and all that the City has done is put Palm Bay on notice in accordance with Chapter 180 that it does have an objection, and there is a mechanism under Chapter 180 for the objection to be resolved. He stated the negotiations can continue; the County does have standing to make an objection; and invited the County to join in with the cities.

Chairman Voltz stated the letter which Mr. Hill and Mr. Ryan sent out says, "If you want to retain the right to choose which municipality, if any, will provide utilities to your property, this is the time to act. According to the State law which allows the Palm Bay action, you must file a written objection with the City of Palm Bay before the close of business, June 24." She inquired what the objection is. Mr. Hill responded under the Florida Statute, the City of Palm Bay has the ability to declare this reserve or planning area; and it is clear that it means they have a right of first refusal for service and they can DISCUSSION, RE: PALM BAY ORDINANCE NO. 98-13 DESIGNATING WATER AND SEWER

extend their municipal powers outside of the boundaries of the municipality. He stated the Palm Bay Ordinance 98-13 explicitly says the City will compel people to hook up to their utilities when the lines are available in that area; that is something the City of Palm Bay does not require within the City; and the City is extending a power outside the City which it does not exercise within the City. He stated the second basis of objection is that the City is not in a position at present to provide the service; and it creates a problem if someone wants service. He stated if the Statute is followed and this is a valid declaration, Melbourne and West Melbourne have to advise the individual to go to Palm Bay even though it does not have the service available; and that could create a concurrency problem which could lead to de facto moratorium.

Mr. Ryan advised this creates a cloud over who provides utilities in the area and may impact the ability of homeowners to obtain mortgages.

Mr. Howley stated under Chapter 180 there is no 30-day response time; the only response time is because the Cities have given notice of intent to file suit; and the only notifications under Chapter 180 are done at a later stage. He distributed copies of the City?s Ordinance; stated one section deals with water and another deals with wastewater; and advised the only time people are required to connect is if there is a new house on an existing water line or if someone is locating a manufactured home onto an existing water line; and those are the same rules that apply in side the City of Palm Bay. He stated the wastewater section provides that if a septic system fails and there is a sewage system in front of a house, the owner is required to connect; and that is the same as within the City. He stated the only area that goes beyond that provides that if someone?s well fails and there is a water line in front of the house, they would be required to connect; and the City Council may look to see if it wants to continue to include that provision. He stated the City of Palm Bay is not constructing lines in every area; and advised of scare tactics.

Commissioner Higgs stated the City of Palm Bay is focusing on the area in the northwest; and inquired what is the City?s intent to the south and east. Mr. Howley responded to the southeast I-95 is a major issue; in his lifetime he doubts the City would be able to serve the area west of I-95; and it may take that out of the planning area unless someone really needs major capacity. He reiterated it is a planning area; if someone needed utilities in that area, they would be asked to speak to the City of Palm Bay first; and there is no intent to extend lines east of Babcock Street. Commissioner Higgs inquired if Babcock Street is the defining line; with Mr. Howley responding at present. Mr. Howley stated if the City extends utility lines down Babcock Street as it plans, and someone on the west side facing Babcock Street wanted to tie in, the City would consider that. Commissioner Higgs stated that is not what the Ordinance says; the Ordinance talks about five miles outside the City limits; that is what the picture shows; and that is all the Board has to go by. Mr. Howley stated there is also a description of a legal boundary which is the most definitive and would prevail; and it does not include Carriage Gate, Brandywine, etc., but does include the area on the map in the southeast section. He stated he expects the City Council to approve exclusion of the area south of Malabar down to Valkaria; he will convey the Board?s interest in excluding further south; and inquired if Commissioner Higgs is interested on both sides of I-95; with Commissioner Higgs responding yes. Mr. Howley inquired how far to the west; with Commissioner Higgs responding in the spirit of intergovernmental coordination, the County needs to work with the City for all the unincorporated DISCUSSION, RE: PALM BAY ORDINANCE NO. 98-13 DESIGNATING WATER AND SEWER

area. She stated that is a fundamental principle; in other parts of the unincorporated area, the County has worked with various municipalities on services; and she objects to any area outside the limits of Palm Bay that does not have a coordinated plan for the future. She stated the County does not have a utility in the area; there is a large utility at Barefoot Bay which is operated by Florida City Water; the County has a responsibility to the citizens in the unincorporated area; and so she objects to anything outside the City limits of Palm Bay. Mr. Howley advised he is sure the City Council would be willing to authorize staff to sit down and discuss areas to be excluded; but Commissioner Higgs is disagreeing with the Florida Statute which gives the municipalities the authority to extend areas for the purpose of efficiency and protection of health, safety and welfare outside the City limits. He noted Melbourne serves twice its population; West Melbourne is trying to serve outside the area; and they do not declare planning areas, but just do it. He stated what the City of Palm Bay is doing is putting a planning area out so there can be discussion of what is appropriate; and the City Council is saying that if an area is inappropriate, it will discuss what should be taken out of the area, but it is trying to show the sphere of possibilities of an area that should be considered; and that is why the Statute says up to five miles. Commissioner Higgs stated under other Statutes the County has the right to provide those services; and even under the Special Act there are rights for the County to provide services in the unincorporated area.

Chairman Voltz stated it is not a question of Chapter 180, it is a question of intergovernmental relations.

Carole Thompson, resident of Carriage Gate, advised of Mr. Howley?s memorandum informing her that as of June 12, 1998, Carriage Gate is not part of the reserve area; and stated as a resident of unincorporated property located within the five miles of the existing Palm Bay City limits, she has many concerns. She stated Mr. Howley just mentioned that her township was not included, but in the legal description, it lists the south one-half of Section 13, Township 28, Range 36, which comes up to the entrance of Carriage Gate along Carriage Gate Drive. She stated Section 4 of Ordinance No. 98-13 states, "The City of Palm Bay reserve area shall not extend for more than five miles from the corporate limits of the City of Palm Bay, as amended from time to time"; and expressed concern about the language "as amended from time to time." She stated she has been advised that at this time, her property is not in the area; and expressed concern that the area could be amended. She stated at this time she has Melbourne water; and her concern is with the proposed utility lines coming up to the entrance of Carriage Gate, Section 7 of the Ordinance would determine how lines would be. She expressed concern of pre-annexation possibilities and future growth and development; stated even if the area is not in the proposed area, it is on their doorstep; and that affects and concerns the residents. She stated the residents only have the Board to represent them; and requested the Board object to the Ordinance and speak out for all of the people. She cautioned if this goes through, it will set a precedent for all unincorporated property in the County; the residents deserve a choice; the majority of County residents who purchased in the unincorporated area purchased there by choice; and expressed concern that there is no 30-day response time. She inquired if County residents have to individually file suit, or does the lawsuit of the Cities of Melbourne and West Melbourne give the people a right to provide a written objection to the City of Palm Bay.

Chairman Voltz requested Mr. Gougelman address the issue of the 30-day period. Attorney Paul Gougelman, City Attorney for the City of Melbourne, read aloud a portion of Chapter 180, Florida Statutes, as follows: "Any objections to any of the provisions, resolution or ordinance shall be in writing and filed with the governing body of the municipality; and hearing thereupon shall be held within 30 days after the passage of the resolution by the legislative body of said municipality." He stated Melbourne?s position is that an Ordinance has been adopted which requires people in certain unincorporated areas to hook up to the Palm Bay system; those are areas that are already served in many cases by Melbourne or West Melbourne; and if this is merely a planning Ordinance, what he does not understand is why there is a provision requiring someone to hook up to a system. He stated it is an issue of intergovernmental coordination; if it is a planning Ordinance under Chapter 180, F.S., it should also be a planning Ordinance under Chapter 163 which is the Comprehensive Planning Ordinance; when a city goes outside its municipal area for planning areas it usually enters into a joint planning agreement with the Board of County Commissioners pursuant to the Florida Statutes; and that has not happened yet. He questioned how this can be just a planning Ordinance; and stated it is something more than that. Chairman Voltz stated Palm Bay?s adoption of the Ordinance is what triggered the 30-day period.

Nick Tsamoutales, City Attorney for the City of Palm Bay, stated the provision of the Statute Mr. Gougelman read was taken out of context; the initial step provided for in Section 180.02 authorizes municipalities to establish areas outside their boundaries and only within unincorporated areas, not within municipalities; and the next section provides that if a municipality desires to avail itself of the provisions or benefits of the Chapter, it has to go through a different procedure, setting forth the scope of the project and the method of financing. He stated there is another provision under Chapter 180.03, Section 2 which provides for the objection and the 30-day time frame. He stated the City of Palm Bay has not taken that step; it has only taken the initial step to declare the areas; and the provision was taken out of context. He stated all of the provisions of the Ordinance are in the conjunctive form; the Florida Statute provides for this procedure; it is the initial step taken by Palm Bay; and it is not a mandate that imposes upon citizens the requirement to hook up with Palm Bay. He stated the court cases on these issues address the situation where water and sewer is to be provided, and they look at the entity that is best able to provide it; so it is not first come, first serve, but a question of who can do it more efficiently and effectively in the interest of the health, safety and welfare of the public. He stated the City Manager requested he draft an interlocal agreement whereby each of the municipalities involved would sit down to attempt to resolve the issues, with all action placed on hold so the issues can be considered and resolved short of ending up in court. Chairman Voltz stated all issues means Chapter 180 and the lawsuit. Mr. Tsamoutales stated the lawsuit will pertain to Chapter 180 only.

Commissioner Higgs stated Mr. Tsamoutales is talking about the municipalities, but is not mentioning the County; and inquired if he is ignoring the fact that the County has people who will be affected. Mr. Tsamoutales stated this is the first occasion that he became aware of County concerns; the request of the City Manager was to draft the interlocal agreement with the two entities that indicated concerns; and he is sure the County can be included. Chairman Voltz stated she hopes so. Commissioner Higgs stated it is the fundamental thing because the big picture shows more unincorporated County. Mr. Tsamoutales stated the Board referenced the dueling Statutes; he is

not sure how the others would affect the provisions of Chapter 180; however, the City is willing to work all of the differences out. Chairman Voltz stated it should have happened before someone filed a lawsuit.

Commissioner Scarborough inquired if the Palm Bay City Council will rescind the Ordinance to proceed with the dialogue; with Mr. Tsamoutales responding he cannot speak for the Council. Commissioner Scarborough inquired if Mr. Tsamoutales is recommending to the City Council that it rescind the Ordinance; with Mr. Tsamoutales responding he would recommend everything be put on hold and no action taken pursuant to the provisions of the Ordinance and the second step not be implemented. Commissioner Scarborough stated the easiest thing for everyone is to rescind the Ordinance at this time and then everyone would come to the table with an open mind; and without rescinding it, they are pressured into taking legal action. Mr. Tsamoutales stated that is a recommendation that can be suggested to the City Council.

Chairman Voltz stated a tremendous amount of animosity has been created between the cities; and the Board is not saying the City should not do what it has a legal right to do, but the entities should deal with one another on a one-on-one basis.

Commissioner Scarborough stated apparently the service area can be extended up to five miles from the current borders under Chapter 180; and inquired if Melbourne and West Melbourne did the same, would it be overlapping. Mr. Tsamoutales stated it would not be effective; it is the municipality that first adopts the Ordinance; but that is not the determining factor of who will provide the services. Commissioner Scarborough inquired if by having the Ordinance first, Palm Bay has usurped Melbourne and West Melbourne from adopting a similar ordinance; with Mr. Tsamoutales responding yes, just as Melbourne and West Melbourne extending their lines usurped the right of Palm Bay or any other entity to serve those areas. Mr. Tsamoutales advised the question is who is best able to provide the service, not who was there first. Commissioner Scarborough expressed concern about the first Ordinance winning without a look at the capacity to supply. Commissioner Higgs stated if the Board goes with this premise, it has the right to declare a service area in the unincorporated part of Brevard County under the Statutes and Special Act; and suggested the Board consider making a declaration of the County?s service area. Chairman Voltz suggested the County and municipalities work together before doing that. Commissioner Scarborough stated if the Ordinance has usurped further discussion and they prevail in court on the basis that they were there first, then there is a profound problem.

Terry Winter stated he owns two lots and a home in Brandywine; and his concern is annexation into Palm Bay. He stated he does not understand how Palm Bay can take care of his area when there are a lot of areas in Palm Bay that need a lot of work. He stated he is curious to know how Palm Bay can provide him service; he already has city water and the roads are taken care of by the County; and his concern is the five-mile radius and whether Brandywine is going to be part of Palm Bay or of the County.

Ralph Siefert stated he recently moved into the Brandywine area; and he moved there specifically not to be in the City of Palm Bay. He stated Palm Bay has a notorious reputation for providing DISCUSSION, RE: PALM BAY ORDINANCE NO. 98-13 DESIGNATING WATER AND SEWER

inadequate services; and now they wish to extend their inadequate services to him. Mr. Siefert stated he is not interested in doing business with Palm Bay; he does not want the City providing services to him; and he does not desire to be in their City limits. He stated Mr. Howley?s remarks about striking first and negotiating after is like someone stealing everything from your house and then negotiating what part of your furniture they are going to give you back; and he is amazed that there is a law that allows this sort of thing to happen. He stated the people in the unincorporated area are being used as pawns in a power struggle between the various factions of the city governments; and he is happy the County Commissioners are watching over this and preventing things from happening without the consent from the residents. He presented a tea bag to Mr. Howley to indicate how the residents feel.

Jan Lieson, Deputy Mayor of West Melbourne, stated cities should work together; and thanked the Board for listening to all sides of the issue. She stated West Melbourne has worked with Melbourne and Palm Bay in the past in many areas; Melbourne and West Melbourne have spent a lot of money to help the other areas when they come in place; and Melbourne and West Melbourne do not force people to be in their cities. She advised of the meetings between the Cities of Melbourne, West Melbourne, and Palm Bay; and stated Palm Bay does not service its own people or require people to hook up when the utilities become available, and she has never heard of a City trying to annex another area and require them to hook up. She stated Palm Bay has not negotiated in good faith; if it did, it would rescind the Ordinance and talk to the cities that are involved; but it has forced the issue. She stated none of the cities want to end up in a court situation; they want to work together; but Palm Bay has not given the other cities any choice. She stated if Palm Bay wanted to negotiate this, it would rescind the Ordinance instead of arbitrarily taking all this land.

Carol Johannessen stated Mr. Howley claims to be concerned about her health, safety and welfare; but she is healthy, her safety is not in jeopardy, and she feels good about where she lives. She stated at the current time she has Melbourne City water; and she is pleased with the service provided to her. She stated Mr. Mazzioti indicated Brandywine, Police Home Foundation and Carriage Gate are not included in Ordinance; however, when she reads the Ordinance she cannot determine how those subdivisions are excluded. She stated she is in the five-mile area; and because that wording is in the Ordinance it does include the Police Foundation which is where she lives. She stated if Palm Bay is not going to force her to hook up to its water and sewer system, the Ordinance needs to be reworded. She stated she wants to be able to choose the municipality that provides her utility services; she cannot vote for anyone in Palm Bay; and she does not need the City of Palm Bay?s services. She stated this is Palm Bay?s first step toward annexation of her area; it is not a desirable thing; and she does not want that. She requested the Board continue to look out for the interests of the citizens who live in the unincorporated County areas.

Commissioner Higgs suggested the Board go on record as objecting to the Ordinance, and ask staff to look at the issue of the County establishing its own service area for the unincorporated area under the Special Act and the Statute.

Motion by Commissioner Higgs, to direct the County Attorney to draft a letter of objection for the Chairman?s signature.

Commissioner Scarborough stated it would be best for Palm Bay to rescind the Ordinance; and it is an issue of who provides the service. He expressed concern that Chapter 180, Florida Statutes, allows whoever is first to usurp the intelligent discussion about planning. He inquired if it is staff?s understanding that whoever is first wins. Planning Manager Mel Scott stated he is not qualified to comment on Chapter 180. Assistant County Attorney Katherine Harasz stated Chapter 180 addresses all of the city rights. Commissioner Scarborough inquired if Melbourne and West Melbourne had emergency meetings and adopted similar Ordinances, what would be the net effect. Ms. Harasz stated it is difficult to answer because what Palm Bay wants to do is subject to the consent of other surrounding utilities. Commissioner Scarborough inquired if there were identical ordinances with an overlap, would the first one win; with Ms. Harasz responding it is not that simple. Chairman Voltz stated Palm Bay says it would have the right of first refusal to supply the water and sewer. Commissioner Scarborough stated his problem is if Melbourne and West Melbourne can do the same thing under Chapter 180, then Chapter 180 is a nullity and it goes back to interlocal; he hopes the courts say that whoever is first under Chapter 180 does not win; and if that is where it is headed, the simplest thing is to go to an interlocal agreement. He stated the County needs to be at the table, but the cities are ahead of the County as suppliers; and he does not think the County stepping in to consider the services would be as prudent as looking at who best can supply the services and who the residents want. Commissioner Higgs stated the County may not be in the best position to be the supplier. Commissioner Scarborough stated then the County should be the broker. Commissioner Higgs agreed the County should at least be the broker; the County has the right under the Statutes to have a sewer/water area; and there have been discussions about potential acquisition of what Florida Cities Water owns at Barefoot Bay, so it has more than a passing interest in the situation. She stated it may not be in the County?s best interest to explore the declaration of a service area in the unincorporated area. Commissioner Scarborough stated he is willing to explore it, but he does not want the County to become just another player; and the Board should be the means to bring this to an intelligent dialogue rather than whoever is first with the Ordinance wins. Commissioner Higgs stated that is not the best way to do it, but to protect those people who live in the unincorporated area and their right to have some voice in this matter, the Board should direct staff to pursue how the County would establish its rights. Commissioner Scarborough inquired how would that relate to Chapter 180; and can the County come in subsequent to a municipality taking action to reserve under Chapter 180 and have higher priority than Melbourne coming in and reserving under Chapter 180. Ms. Harasz responded she did not see any cases which addressed Chapter 153 versus Chapter 180 authority; there is a vehicle in Chapter 180 for cities and nearby private utilities to have to provide their consent; there is a vehicle for concerned citizens including the County to object once Palm Bay gets ready to exercise its right to construct; but Chapter 180 does not address Chapter 153. She stated Chapter 153 allows the County to establish a district in the unincorporated areas of the County and say that only the County has the exclusive right to provide utilities in that district. Commissioner Scarborough inquired could the County then contract with other municipalities to be the service provider; with Ms. Harasz responding affirmatively. Commissioner Higgs stated the Board needs to preserve its options and rights, and do something that makes sense. Commissioner Scarborough stated he hopes it can be done without conflict, and that Palm Bay will rescind the Ordinance and do an interlocal agreement; and perhaps Chapter 153 can be used to get around Chapter 180.

Commissioner Higgs stated her motion is to object, and the County Attorney draft the letter in the proper form.

Commissioner Scarborough suggested individual letters requesting each member of the City Council of Palm Bay move to rescind the Ordinance; with Commissioner Higgs advising that is fine.

Chairman Voltz stated the action should not be just to rescind the Ordinance, but to have interlocal coordination.

Commissioner Scarborough stated it would proceed in interlocal governmental planning rather than in the court system. Commissioner Higgs stated she will include that in the motion. Commissioner Cook inquired if that would be adequate to preserve the County?s standing; with Ms. Harasz responding it is fine. Commissioner Scarborough stated there will be two letters; one would be individually to each of the Council members; and the other would be a letter of objection.

Commissioner Scarborough seconded the motion as amended. Chairman Voltz called for a vote on the motion. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct the County Attorney and County Manager to explore fully the County?s rights and how it would proceed to establish a water/sewer district, and look at areas currently served by Palm Bay, Melbourne, West Melbourne and Malabar so a full analysis is brought back.

Chairman Voltz stated the County wants to work with the communities. Commissioner Higgs stated she is not interested in establishing areas in conflict with the municipalities, but in the other parts of the unincorporated County.

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

Upon motion and vote, the meeting adjourned at 11:14 a.m.

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HELEN VOLTZ, CHAIRMAN

__________________________ BOARD OF COUNTY COMMISSIONERS

SANDY CRAWFORD, CLERK BREVARD COUNTY, FLORIDA

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