May 25, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 25, 2004 at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Bob Tustan of Students Taking a New Direction (STAND).

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

APPROVAL OF MINUTES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the March 4, 2004 Zoning Meeting Minutes. Motion carried and ordered unanimously.

REPORT, RE: CONTINUATION OF PUBLIC HEARING TO CONSIDER ORDINANCE
AMENDING SECTIONS 226-26 THROUGH 226-33, AND 42-71 THROUGH 42-100,
AMENDING EMERGENCY MEDICAL SERVICES (EMS) ORDINANCE NO. 95-54

County Manager Tom Jenkins stated there have been several requests for additional information on Item IV.C., Ordinance Amending Sections 226-26 Through 226-33, and 42-71 Through 42-100, Re: Amending Emergency Medical Services (EMS) Ordinance No. 95-54; and requested the Board continue the item until July 13, 2004.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue the public hearing to consider an ordinance amending Sections 226-26 through 226-33, and 42-71 through 42-100, amending Emergency Medical Services (EMS) Ordinance No. 95-54 until July 13, 2004. Motion carried and ordered unanimously.

LETTER TO CONGRESSMAN DAVE WELDON, RE: REQUESTING FEDERAL
APPROPRIATIONS FOR MAINTENANCE OF ATLANTIC INTRACOASTAL
WATERWAY

County Manager Tom Jenkins stated he sent the Board a draft letter that had previously been sent to the Commissioners by the Florida Inland Navigation District (FIND); and the District is requesting the Board send the letter to Congress.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Chair to sign a letter to Congressman Dave Weldon requesting federal appropriations for maintenance dredging of the Intracoastal Waterway in the vicinities of Palm Valley and Ponce De Leon Inlet and the Atlantic Intracoastal Waterway in the Nassau Sound area. Motion carried and ordered unanimously. (See page for Letter.)

RESOLUTION, RE: CONGRATULATING KARAN ROUNSAVALL

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution congratulating Karan Rounsavall upon her retirement from the City of Titusville, and thanking her for her faithful and dedicated service to the citizens of North Brevard. Motion carried and ordered unanimously. (See page for Resolution No. 04-120.)

RESOLUTION, RE: CONGRATULATING BOB ROSS

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution congratulating Bob Ross for his outstanding commitment to the students of Brevard County, and
extending best wishes for an enjoyable retirement. Motion carried and ordered unanimously. (See page for Resolution No. 04-121.)

REPORT, RE: WELLNESS PROGRAM

Commissioner Pritchard stated he asked Sharon Luba if she would look into the Wellness Program, which has to do with employees’ physical activities and eating habits to improve their overall wellness; Ms. Luba has comprised an extensive report; and he has summary information which he will provide to the Board. He noted the entire report is going to be given as part of a subcommittee that Ms. Luba belongs to dealing with the County’s insurance costs; and the Program can not only promote better health to the employees, but can save the County a considerable amount of money.

REPORT, RE: VIDEOTAPE OF BREVARD TOMORROW COMMUNITY CELEBRATION

Commissioner Carlson stated WBCC-TV has agreed to videotape the Brevard Tomorrow Community Celebration that is occurring on June 11, 2004; SCGTV broadcast the Celebration several times last year; and requested permission from the Board to do this again this year. She noted Lieutenant Governor Toni Jennings will be present; other folks, such as Howard Lance, President of Harris Corporation, will also be there; and a great celebration is planned.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant permission to allow the WBCC-TV videotape of the Brevard Tomorrow Community Celebration on June 11, 2004 to be broadcast on SCGTV. Motion carried and ordered unanimously.

REPORT, RE: SUPPORT THE TROOPS RALLY

Commissioner Colon stated this weekend is Memorial Day weekend, which is important especially since the United States is in the middle of a war; and encouraged folks to look closely at the newspapers as there are events going on throughout the County. She noted there will be a Support the Troops Rally on Monday at 3:30 p.m. at Veterans Park; and encouraged individuals to come to the Rally in support of the troops and wear red, white, and blue. She noted yellow ribbons will be given for the occasion.

REPORT, RE: BREVARD ELDERLY ABUSE SUMMIT

Commissioner Colon stated there is going to be a Brevard Elderly Abuse Summit on June 10, 2004 at Florida Institute of Technology (FIT); it is important for all those who specifically work with the elderly; and anyone wanting further information can contact her office.

PRESENTATION BY LARRY WEBER, KEEP BREVARD BEAUTIFUL, RE: TRASH BASH
AWARD

Larry Weber, Keep Brevard Beautiful, stated he is proud to announce the results of the 20th Annual Trash Bash held in April 2004; this year there were 35 sites throughout the County, resulting in 1,595 volunteers that removed 119,522 pounds of trash; each year there is a competition among the Districts; and Commissioner Colon receives a check for the most improved District. He noted her District had 153 volunteers that removed 12.5 tons of litter; and the check goes to Commissioner Colon’s favorite charity.

Commissioner Colon stated the charity is Roffa Christian Center, which will be working with a mentoring program and starting the first job link for young people ages 18 to 25; and there are some wonderful blessings coming to the community.

Mr. Weber stated the check was donated by Waste Management; the winner for the most volunteers and the most litter removed goes to District 3; Chair Higgs is the winner of the stained glass Pelly and gets to keep it for one year; and the District had 154 volunteers that removed over 15 tons of litter.

Chair Higgs stated the County appreciates what Keep Brevard Beautiful does and all the volunteers.

REPORT, RE: MINOR STRUCTURES AND COASTAL CONSTRUCTION ZONE

Chair Higgs requested a staff report while the Board is on vacation concerning the issue of minor structures and the coastal construction zone; provided pictures to the Board for its review of a gazebo type dune; and advised there have been a number of questions about what is a minor structure.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to direct staff to provide a report to the Board on the minor structures and the coastal construction zone, and the implications. Motion carried and ordered unanimously.

RESOLUTION, RE: RECOGNIZING STUDENTS TAKING A NEW DIRECTION (STAND)

Commissioner Colon read aloud a resolution recognizing Students Taking a New Direction (STAND), Year 2004.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to adopt Resolution recognizing Students Taking a New Direction (STAND), Year 2004; and extending best wishes for success in observance of this new direction. Motion carried and ordered unanimously. (See page for Resolution No. 04-122.)

A representative of STAND stated the Organization was founded two years ago; its purpose is to teach students about alternatives to all kinds of activities, but the number one thing is to remain abstinent until married; STAND will be holding the largest abstinence rally in the State of Florida on June 4, 2004 at 5:00 p.m. at the TD Waterhouse Center; and the Center expects to have about 17,000 students attend the rally. He invited the Board to attend the event; stated there will be a special section for esteemed guests; and expressed appreciation to the Board for the Resolution.

Commissioner Colon presented the Resolution to the representative of STAND.

RESOLUTION, RE: PROCLAIMING BOYS AND GIRLS CLUBS DAY

Commissioner Colon read aloud a resolution proclaiming June 8, 2004 as Boys and Girls Clubs Day in Brevard County.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to adopt Resolution proclaiming June 8, 2004 as Boys and Girls Clubs Day in Brevard County, in recognition of their outstanding achievements. Motion carried and ordered unanimously. (See page
for Resolution No. 04-123.)

A representative of the Boys and Girls Clubs expressed appreciation to the Board for the Resolution; stated the Clubs are throughout the County and need community support; they are into youth development and character building; and the boys and girls are great and part of the community. He noted June 9, 2004 will be Boys and Girls Clubs night at Space Coast Stadium; and everyone is invited to attend.

Chair Higgs stated the Board appreciates all the work that the Boys and Girls Clubs do in the community.

Commissioner Colon presented the Resolution to the representative of the Boys and Girls Clubs.

RECOGNITION, RE: SPRING 2004 GRADUATING CLASS FOR BREVARD COUNTY
CITIZENS ACADEMY

Marea Staples, Special Projects Coordinator, presented the Spring 2004 graduating class of the Citizens Academy; stated the session started on March 24, 2004 with both a morning and evening session running simultaneously; the Citizens Academy is a free nine-week educational program consisting of one three-hour meeting per week and one-half day Saturday tour; and County departments were involved in the planning stages, as well as being guest lecturers. She noted the department and offices include the County Manager’s Office, SCGTV, Public Safety, Emergency Management, Animal Services, Water Resources, Solid Waste, Natural Resources, Agriculture and Extension Services, Mosquito Control, Transportation Planning, Transit Services, Transportation Engineering, Parks and Recreation, Library Services, Housing and Human Services, Planning and Zoning, Permitting and Enforcement, Office of Tourism, Budget, Strategic Planning, and Legislative Delegation; evaluations were conducted after each session; and the Academy and presenters consistently received very positive feedback. She stated the next session of the Citizens Academy will be in the Fall 2004; citizens may register on the County’s website or call 633-2010 and request an application from the County Manager’s Office; and applications are accepted on a first come, first served basis.

The Board recognized Ernest Baldini, Thomas Barbieri, Thomas Branco, Shirley Dockins, William Dockins, Elizabeth Pribble, Walter Wagner, Cindy DuFour, Steven Geer, Jackie Grant, Carol Hamblin, Brian Hurley, Jill Jeffries, Maureen McCormick, Marcia McDonough, Bennett Miller, G. Melvin Mills, Jr., Lloyd Price, Arlene Rodriguez, Terri Scott, Eli Simpson, Jean Simpson, and Amy Tidd, who completed the classes necessary to graduate from the Brevard County Citizens Academy; and Chair Higgs presented the diplomas.

RESOLUTION, RE: PROCLAIMING MANAGEMENT WEEK

Chair Higgs read aloud a resolution proclaiming June 2 through 7, 2004 as Management Week in Brevard County.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution proclaiming June 2 through 7, 2004 as Management Week in Brevard County, and expressing appreciation to the National Management Association for its valuable contributions and assistance to the citizens of Brevard County. Motion carried and ordered unanimously. (See page for Resolution No. 04-124.)

Barry Mandell, representing the Florida Space Coast Council of the National Management Association (NMA), stated the NMA is a professional leadership development association headquartered in Dayton, Ohio; the members belong to company-based chapters, community chapters, or are individual members; through the chapter-based experiences, NMA provides management and leadership development opportunities to help sponsor an organization to discover, develop, and showcase leadership talent; NMA’s customers span the entire United States; and most are from over 111 affiliated chapters representing nearly 1,000 organizations, and include health care, utilities, manufacturing, communications, government, aerospace, and defense. He advised the first week in June 2004 is Management Week in America, celebrated by many of the chapters within NMA; the Florida Space Coast Council consists of five local chapters, Boeing Space Coast Leadership Association, Brevard Community Chapter, Lockheed Martin Space System Chapter, Space Gateway Systems Chapter, and United Space Alliance Leadership Association. He noted the Council celebrates Management Week in America by hosting an annual awards banquet; this year it will be at Patrick Air Force Base (PAFB) Officers Club on June 10, 2004; the Council will present the Brevard County Manager of the Year Award to a local business person selected by a panel of Brevard leaders; and it will also present the Golden Knight of Management Award, along with several others. Mr. Mandell expressed appreciation to the Board for the Resolution.

Chair Higgs presented the Resolution to Mr. Mandell.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT DAVID PATRICK WHITE

Commissioner Carlson read aloud a resolution recognizing Eagle Scout David Patrick White.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution recognizing Eagle Scout David Patrick White for his achievements and encouraging all citizens to acknowledge his accomplishments. Motion carried and ordered unanimously. (See page
for Resolution No. 04-125.)

David Patrick White stated it is tough to become an Eagle Scout, but fun too; it is an honor teaching the younger people; and expressed appreciation to the Board for the Resolution.

Commissioner Carlson presented the Resolution to Mr. White.

RESOLUTION, RE: COMMEMORATING MEMORIAL DAY

Commissioner Pritchard stated Mel Mueller is the Curator of Veterans Memorial Center and Museum located on Merritt Island; and the Museum is a beautiful tribute to the men and women who have served the Nation so valiantly.

Commissioner Pritchard read aloud a resolution commemorating May 31, 2004 as Memorial Day in Brevard County.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution commemorating May 31, 2004 as Memorial Day in remembrance of our departed service men and women and the country they gave everything to serve. Motion carried and ordered unanimously. (See page for Resolution No. 04-126.)

Mel Mueller expressed appreciation to the Board for the Resolution, and to all the veterans; and requested everyone keep the men and women who are in harm’s way in their thoughts and prayers, not only on Memorial Day weekend, but throughout the year. He noted people hear a lot about the nasty business of the prison, but there are a lot of stories coming out of Iraq and Afghanistan; he received a report yesterday from a young man who was one of the guards on a fuel convoy on April 9, 2004, bringing fuel into Baghdad; during the confrontation he was wounded four times; and he was subjected to hostile fire from people who were hiding behind women and children, using them as shields. He stated some of the people in the convoy were killed by a 10-year old boy with an AK-47, while his companion, a 7-year old boy was carrying another rifle; so it is a nasty business over there; and requested everyone thank the men and women when they come home.

Commissioner Pritchard presented the Resolution to Mel Mueller.

RESOLUTION, RE: RECOGNIZING MARLENA HAROLD

Commissioner Carlson read aloud a resolution recognizing Marlena Harold for achievement of the Gold Award, the highest award in Girl Scouts.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution recognizing the achievements of Marlena Harold and recommending that all citizens of Brevard County acknowledge her accomplishments. Motion carried and ordered unanimously. (See page for Resolution No. 04-127.)

Marlena Harold stated it has been hard for her in her Girl Scout career since she has been moving around as her father is in the military; she has gone through a lot of troops; and it was a great challenge to get it done. She expressed appreciation to the Board for the Resolution.

Commissioner Carlson presented the Resolution to Ms. Harold.

DISCUSSION, RE: ITEMS REMOVED FROM CONSENT AGENDA

Chair Higgs advised there are a number of items that have been pulled by the public for consideration from the Consent Agenda; and requested staff be prepared to discuss Items III.A. 4., III.A.5., III.A.6., III.A.10., III.B.2., III.D.2., III.D.3., and III.F.1.

CONTRACT WITH VIERA BOULEVARD JOINT VENTURE, INC., RE: IMPROVEMENTS
TO VIERA BOULEVARD COMMERCE PARK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contract with Viera Boulevard Joint Venture, Inc. for improvements to Viera Boulevard Commerce Park. Motion carried and ordered unanimously. (See page for Contract.)

REQUEST FROM FOSTER LYTLE, RE: CREATION OF FLAG LOTS, EASEMENT LOTS,
AND ROAD FRONTAGE LOTS ACCESSING CARTER ROAD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve creation of two flag lots, two easement lots, and three road frontage lots accessing Carter Road, as requested by Foster Lytle. Motion carried and ordered unanimously.

APPROVAL, RE: ACCEPTANCE OF PORTION OF LAWRENCE ROAD IN MIMS FOR
MAINTENANCE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept approximately 500 feet of Lawrence Road east of Cushman Road in Mims for maintenance by the Roadways and Landscaping Department. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: RESOLUTION ACCEPTING
IMPROVEMENTS AND ADOPTING FINAL ASSESSMENT ROLL FOR RIO LINDO
MAINTENANCE DREDGING MSBU

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider a resolution accepting improvements and adopting the
final assessment roll for Rio Lindo Maintenance Dredging MSBU. Motion carried and ordered unanimously.

PERMISSION TO ACQUIRE APPRAISALS AND NEGOTIATE RIGHT-OF-WAY
ACQUISITION, RE: BARNES BOULEVARD WIDENING PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to obtain appraisals, environmental services, surveys, etc. and to negotiate with property owners for acquisition of properties for the Barnes Boulevard Widening Project. Motion carried and ordered unanimously.

PERMISSION TO SUBMIT, RE: PROJECT PRIORITIES TO BREVARD METROPOLITAN
PLANNING ORGANIZATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Transportation Planning Office to submit project priorities to the Brevard Metropolitan Planning Organization (MPO) for preliminary consideration, including Babcock Street, Wickham Road, Palm Bay Parkway, Max Brewer Bridge, and Pineda Causeway Interchange. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-3-04-17 AND PERMISSION TO NEGOTIATE CONTRACT, RE:
STRATEGIC BUSINESS PLAN DEVELOPMENT FOR BREVARD COUNTY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to award the best-ranked proposal from Randall Travel Marketing for development of a Brevard County Tourism Strategic Business Plan; and authorize the Tourist Development Executive Director, an Assistant County Attorney, and Assistant County Manager to negotiate the contract, and for the Chair to execute the negotiated contract. Motion carried and ordered unanimously. (See page
for Contract.)

AGREEMENT TO EXTEND INTERLOCAL AGREEMENT WITH CITY OF MELBOURNE, RE:
COMPLETION OF SOUTH BREVARD RECREATION SPECIAL DISTRICT PROJECTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement to Extend Interlocal Agreement with the City of Melbourne for one year to allow the City to complete the $75,000 South Brevard Recreation Special District Projects. Motion carried and ordered unanimously. (See page for Agreement.)

FIFTH AMENDMENT TO AGREEMENT WITH COASTAL HEALTH SYSTEMS OF BREVARD,
INC., RE: INCREASE IN MILEAGE BILLING RATE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Fifth Amendment to Agreement with Coastal Health Systems of Brevard, Inc., increasing the mileage billing rate from $5.00 to $6.00 per mile. Motion carried and ordered unanimously. (See page
for Amendment to Agreement.)

PERMISSION TO ADVERTISE, BID, AND AWARD TO LOWEST QUALIFIED BIDDER, RE:
FIRE ENGINE OUTFITTING EQUIPMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize advertising for bids for fire engine outfitting equipment, and to award the bid to the lowest qualified bidder. Motion carried and ordered unanimously.

RESOLUTION AND APPLICATION WITH FLORIDA DEPARTMENT OF TRANSPORTATION,
AND AUTHORIZE EXECUTION OF JOINT PARTICIPATION AGREEMENT,
AMENDMENTS, OR ADDENDA, RE: COMMUTER ASSISTANCE GRANT FOR
SPACE COAST AREA TRANSIT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution and approve grant application to Florida Department of Transportation for $244,943 to provide Commuter Assistance Service from July 1, 2004 through June 30, 2006; and authorize the Chair to execute the Joint Participation Agreement and any amendments or addenda contingent upon approval by the County Attorney and Risk Management. Motion carried and ordered unanimously. (See pages for Resolution No. 04-128, Application, and Joint Participation Agreement.)

RESOLUTION, APPLICATION, AND STANDARD ASSURANCES, AND AUTHORIZE
EXECUTION OF GRANT AGREEMENT, AMENDMENTS, OR ADDENDA, RE:
TRANSPORTATION DISADVANTAGED PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution and approve Standard Assurances and grant application to Florida Commission for the Transportation Disadvantaged for $1,011,494 in CTD trust funds; and authorize the Chair to execute the Grant Agreement and any amendments or addenda contingent upon approval by the County Attorney and Risk Management. Motion carried and ordered unanimously. (See pages for Resolution No. 04-129, Application, Standard Assurances, and Grant Agreement.)

AGREEMENT TO EXTEND EXISTING CONTRACT WITH SPACE COAST ADVERTISING
CONSORTIUM, INC., RE: SCAT MARKETING SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement to Extend Existing Contract with Space Coast Advertising, Inc. to provide marketing and advertising services for Space Coast Area Transit until December 31, 2004. Motion carried and ordered unanimously. (See page for Agreement.)

AUTHORIZE SOLE SOURCE PURCHASE FROM FLORIDA DETROIT DIESEL ALLISON,
RE: ORIGINAL EQUIPMENT MANUFACTURERS (OEM) PARTS, SUPPLIES, AND
SERVICE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the sole source purchase of original equipment manufacturers parts, supplies, and service from Florida Detroit Diesel Allison for Solid Waste Management. Motion carried and ordered unanimously.

TASK ORDER NO. 8 TO MASTER AGREEMENT WITH BOYLE ENGINEERING
CORPORATION, RE: WATER AND SEWER INTERCONNECTIONS FOR BAREFOOT
BAY AND SNUG HARBOR UTILITY SYSTEM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Task Order No. 8 with Boyle Engineering Corporation to conduct engineering final design, bidding, and construction phase services for water and sewer interconnections of the Barefoot Bay and Snug Harbor Utility Systems at $80,201. Motion carried and ordered unanimously. (See page
for Task Order No. 8.)

RESOLUTION CALLING FOR REFERENDUM ELECTION, AUTHORIZE EXECUTION OF
NECESSARY DOCUMENTS, AND BUDGET CHANGES, RE: RENEWAL OF
ECONOMIC DEVELOPMENT AD VALOREM TAX ABATEMENT PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution of the Board of County Commissioners of Brevard County, Florida, calling a referendum election on November 2, 2004 within the territorial limits of Brevard County on the question as to whether the authority of the Board of County Commissioners to grant property tax exemptions to new businesses and expansions of existing businesses should be renewed in accordance with the authority of Section 196.1995, Florida Statutes, which pertains to economic development ad valorem tax exemptions, and providing for an effective date; authorize the Chair and County Attorney to sign the necessary documents; and authorize staff to make necessary budget changes. Motion carried and ordered unanimously. (See page
for Resolution No. 04-130.)

PERMISSION TO MAKE REPAIRS, AWARD CONTRACT UNDER APPROVED JOC, AND
APPROVE BUDGET CHANGE REQUESTS, RE: REPLACEMENT OF FIBERGLASS
LIGHT POLES AT SPACE COAST STADIUM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize replacement of fourteen fiberglass light poles on the walkway at Space Coast Stadium; award contract under previously approved Job Order Contract (JOC); authorize the Chair to execute the contract; and approve all necessary Budget Change Requests. Motion carried and ordered unanimously. (See page for Contract.)

PERMISSION TO ISSUE WORK ORDER TO POST BUCKLEY SCHUH & JERNIGAN, INC.,
RE: CONDITION SURVEYS OF DETENTION CENTER AND EMERGENCY
OPERATIONS CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize issuance of a Work Order to Post Buckley Schuh & Jernigan, Inc. for condition surveys at the Brevard County Detention Center at Sharpes in the amount of $38,400 and the Emergency Operations Center in Rockledge at $39,580. Motion carried and ordered unanimously.

PERMISSION TO SELL, RE: PROPERTY IN PALM BAY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize staff to sell two to three acres of land in Palm Bay that are part of the 35 acres for the Brevard County Services Center-Palm Bay, in order to fund enhancements necessary to comply with deed restrictions. Motion carried and ordered unanimously.

PERMISSION TO HIRE INDEPENDENT LEGAL COUNSEL, RE: WEIDERHOLD AND
CORNELLA V. BREVARD COUNTY FIRE DEPARTMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the employment of independent legal counsel to defend the County in a federal lawsuit entitled Weiderhold and Cornella v. Brevard County Fire Department, alleging violation of the Fair Labor Standards Act. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

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

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE AMENDING CHAPTER 2, ARTICLE VI, DIVISION 2, CODE
ENFORCEMENT PROCEDURES

Walter Pine stated there is a lot going on in Code Enforcement right now; it is rewriting the procedures and one of the people who is doing it is a person who actually prosecutes the procedures before the special master; it is inappropriate in that it gives the prosecutor the opportunity to actually fashion the rules to his or her benefit; and all the Code Enforcement changes should be taken off and viewed holistically. He noted there are a lot of changes that are going to significantly impact the rights of the citizens; the County needs to look at not only who is writing them, but the impacts they will have; the item should not have been on the Consent Agenda; and requested all issues on Code Enforcement be given better public hearings at this point in time. He stated at almost every meeting there is something coming before the Board about Code Enforcement, somebody not doing something right, or something not having due process; it is important to take a close look at this, not just from the standpoint of staff, but also from the public; all these need to be viewed in relationship to each other; it is easy to propose a change in one and a change in another that will result in a substantive change; and if three different ordinances are being changed, they can have a significant change that affects the Code Enforcement process that would be hidden to the legislators that are reading them. Mr. Pine reiterated it is important to take all the Code Enforcement issues off at this time and view them as a complete issue.

Marcelle Kinney stated she lives in Valkaria; in contrast to Mr. Pine she does not have anything negative to say about Code Enforcement; her household has been investigated many times over the years; and Code Enforcement is fair and diligent, and she wishes it would not do its job so well. She noted Code Enforcement investigates all complaints fairly; as she has written in a couple of memos to the Board, she is concerned about abuses of the Code Enforcement system; there are some people in Brevard County that use and overuse the system; and she had Code Enforcement pull a list of all of the anonymous complaints since 2001. She stated there have been 6,764 anonymous complaints since that time; that averages 55 a week or 11 a day; of these she does not know how many are frivolous; and her household itself has been the victim of a number of frivolous complaints, which burdens the system. She noted she is an economist, so she always looks to having an efficient system; she does not want citizens to be burdening it; if they are, they need to pay the costs; and one example of the extraordinary burden that a few citizens can place on the system is the famous garbage case, which was another instance that involved her neighbors who have been doing a number of complaints about her now. Ms. Kinney stated her neighbors had to go before the special masters; in the material, Assistant County Attorney Terri Jones has provided the Board with respect to the cost of the special masters versus the Code Enforcement Board, she found that for the period of October 1996 through July 1997, the special master handled 67 cases in 19.83 hours; that averages 18 minutes a case; and for the period of August 1997 to April 1998, the special master handled 74 cases in 24.42 hours or an average of 20 minutes a case, so typically it averages 19 minutes a case. She noted when the garbage case came up, that took about seven hours or 22 times the amount of an average case; it is continuing as it is up on appeal; in looking at the number of hours that staff has put into the case alone, it is estimated to be in excess of 70.5 hours; and it did not keep track of all the minutes it spent on it, so it is a low estimate. She stated she offers the statistics as an indication of the magnitude of the problem of overuse and abuse of the Code Enforcement system; not only must the County change the Code in Section 2173 (e) to limit the abuses, but a sharp eye must be taken to the entire system; the special master must recover more reasonable costs in particularly costly cases; and she has always argued in the garbage case that the special master did not charge the parties enough and assessed them $1,520.92, which does not cover the costs. Ms. Kinney noted in a memorandum she wrote the Board last week she offered a suggestion for changing the Code to include the issue of named complainants as well; although the 32 complaints on the five-page list have come in anonymously, over a period of time when they have changed their complaint they are coming back sometimes and identifying themselves; the current Code under Section 2173 (e) only addresses anonymous complaints; and the current Code says that after frequent anonymous complaints that are not founded, the County Manager can stop them. She stated she wrote a letter to the County Manager and Assistant County Manager Peggy Busacca about it; she is wondering why she is still being investigated; she has clearly had many frivolous complaints; staff wants to change the number from frequent to two; and she has had many more than two frivolous complaints. She noted Code Enforcement takes its job seriously and she has seen it; it believes it has to investigate all of the complaints; but there need to be limits; and requested some relief. She stated her address should be flagged as one that has been investigated enough, certainly on the anonymous level; it needs to be changed to a named level; Ms. Jones gave the Board a memo yesterday; and on page 3 she has suggestions for new language for Section 2173 (e). Ms. Kinney noted she agrees with what Ms. Jones has suggested; when there are named complaints there need to be signed, sworn, written statements; and doing it over the phone does not work. Ms. Kinney stated when she talked to Ms. Jones yesterday she indicated the best thing to do was take certain individuals up on perjury charges; it is okay under certain circumstances; but she is not so sure that all of the complaints against her are perjury; and there is always some smattering of truth to it, but they are frivolous and repetitive complaints, which overburden the system.

Commissioner Pritchard stated he has spoken to Ms. Kinney and can appreciate what she has gone through; when he first came on the Board one of the first issues he heard was the infamous garbage complaints; this is where Ms. Kinney’s neighbors who have been filing all of these frivolous complaints, which he has counted 23 of them, decided it was more convenient for them to put their garbage on Ms. Kinney’s property than it was on theirs; that took Ms. Kinney’s neighbors to Code Enforcement; they did not like the special master’s determination; and they went after the special master. He noted this is not the way County government is supposed to be utilized by the public; he said that then and disagrees with developing a surrogate; the problem here is Ms. Kinney definitely has an issue with a couple of her neighbors; and they are using the system to the detriment of the system, as well as to Ms. Kinney and her family. He stated it has been shown by the amount of frivolous complaints they
have; he has a problem with anonymous complaints; one of the reasons is because someone will get cited for having a boat in their backyard, they become angry at that, and they make it their life’s work to drive through neighborhoods and cite other people for having an alleged violation; and it puts an enormous burden on Code Enforcement. He noted the County is spinning its wheels because someone is angry and hiding behind the veil of being anonymous; while he understands there are occasions when people need to come forward and bring to the attention of Code Enforcement that there is an issue that needs to be addressed and they would prefer to remain anonymous because of a fear of retaliation, he does not believe that carries as much weight as the frivolous use and it being anonymous; and the item needs further study and should come back with a situation that the Board and Code Enforcement can live with. Commissioner Pritchard stated people are angry and using the system as a whipping post; and requested the item come back as a public hearing in July 2004. He noted the use of anonymous complaints is more detrimental than it is beneficial.

Chair Higgs stated perhaps the ordinance could be advertised so that some alternative language could be offered.

Commissioner Carlson stated Ms. Jones put in the packet some alternative language to the anonymous side; in terms of bringing back alternatives or options, some of the issues Ms. Kinney brought up of fines for abuse of the system could be included if they are legitimate and legal, including identifying named complainants after so many times; maybe the two anonymous complaints would cover that; and she would like to see the whole picture and what the options might be legally to help reduce the waste.

Commissioner Scarborough stated the Board needs to walk through the item as it does not want to throw the baby out with the bath water; there was someone in his District who chased somebody down the street with a machete because they found out who complained about them to Code Enforcement; so there are people who need to remain anonymous. He noted the anonymous complaints would be limited to two now; if they are founded complaints, it does not cut the window off, but if they are unfounded the window is closed; people can move from the anonymous to actual complaints; and he is not willing to go back and look too far with doing away with anonymous complaints if they are limited to two and founded. He stated perhaps staff could expand on the item regarding numerous complaints that are named, but are basically overburdening the system.

Commissioner Carlson noted Ms. Kinney also brought up the repetition of similar complaints and the due process that Code Enforcement has to do based on the same complaint over and over again; and perhaps staff could review how the process might be refined.

Commissioner Pritchard stated one way the County could get around the anonymous issue would be to have the homeowner association represent the anonymous complaint.

Commissioner Scarborough stated essentially there is going to be somebody out there who conceivably could be identified one way or the other; if there is an anonymous complaint and it proves to be a valid one, there is no problem to it; it is the repetitive anonymous complaint that is the problem; and staff is defining it and going to get rid of the problem.

Commissioner Pritchard stated it is only addressing if the anonymous complaint is toward the same property; the situation he is familiar with was happening in the Port St. John area; someone was cited and it became their life work to find out about the rest of world. Commissioner Scarborough noted that is a separate issue and is going to occur; if somebody is cited, then they become the person who goes around and checks things; since Code Enforcement is not proactive and responds to complaints, it is going to occur even if the County does away with anonymous complaints; and the same environment is going to exist even if one identifies him or herself. He stated he could tell someone they have a problem and he has called Code Enforcement; that person may agree they are in non-compliance; but the problem is there may be 100 neighbors who are also in non-compliance. Commissioner Pritchard noted that person takes it upon themselves to start identifying all of the complaints, but wants to remain anonymous; they are burdening Code Enforcement; and their motivation is giving Code Enforcement something to do to stay busy for the next six months by driving all over the County and making as many anonymous complaints as possible.

Chair Higgs inquired is there a provision that someone has to live within a certain distance; with Code Enforcement Manager Bobby Bowen responding no. Mr. Bowen stated the distance used to be 1,000 feet. Chair Higgs noted the County may need to revisit that issue; and inquired is there consensus from the Board that the alternative of named complaints along with anonymous complaints be drafted into the ordinance for consideration. Commissioner Carlson stated the other aspect was the issue of any fines over and above, whatever is considered to be abuse of the system, and how much does the special master have to take before enough is enough, including the time for a case. Chair Higgs inquired is Commissioner Carlson talking about the cost for the case; with Commissioner Carlson responding the cost of time with the special master based on the Contract. Chair Higgs noted it should be rolled into the costs.

Commissioner Carlson stated staff can review it if it is viable; Ms. Kinney had some suggested language in terms of fines if something is frivolous; but she does not know if it legitimate. Chair Higgs stated the other language allows the County Manager to say the County is not going to investigate the frivolous complaints. Commissioner Carlson stated she was looking for an incentive to keep it from happening.

Assistant County Attorney Terri Jones stated the County could make it a separate Code violation to call in a frivolous unfounded complaint with a fine. Commissioner Carlson noted she wants to review those kinds of options. Commissioner Scarborough expressed concern as the issue may become more of a problem. Commissioner Carlson stated that is why she asked for a legal perspective.

Chair Higgs stated her preference is to see if the County can address the problem through the same methodology it uses with anonymous. Commissioner Pritchard noted there might also be an issue with malicious; if it is not malicious and a worthy intent, that is one thing; but if it keeps coming back because the person does not like the answer they keep getting, then it is malicious and something needs to be done.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the legislative intent and grant permission to advertise a public hearing to consider an ordinance amending Chapter 2, Article VI, Division 2, Code Enforcement Procedures, including alternate language of named complaints along with anonymous complaints drafted into the ordinance to discuss the issues. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ANNEXATION BY CITY OF MELBOURNE, RE: PROPERTY
ALONG NORTH SIDE OF EAU GALLIE BOULEVARD

Glenda Busick stated there are two items on the Consent Agenda that pertain to annexation; this item is to annex some commercial property along the north side of Eau Gallie Boulevard; when cities annex the property the County does not get the MSTU revenues; and the road taxes are $971.00 on this property, but Melbourne is going to get the property taxable value of $240,000. She noted a few weeks ago she gave the Board a Florida, City, and County Management Association Report that was done to analyze the annexation problems in the State; it has a category called “cherry picking”; it says cities are naturally inclined to annex only those unincorporated areas that will improve their tax base; and they look for opportunity to annex lands with high property values, but low requirements for public services. She stated typically it leaves out working class neighborhoods, etc. and favors properties with commercial developments and upscale homes; over time the difficulty of providing urban services to the remaining unincorporated area increases because the area becomes fragmented and geographically divided, while the taxable value of the unincorporated area for purposes of MSTU’s and MSBU’s declines relative to the value of the county as a whole; the Board knows what this means, but the public needs to know what it means; over time the County’s unincorporated land gets picked off by the cities, taking away its property taxes and leaving no taxing units for roads; and inquired what can be done about this. Ms. Busick noted the Charter Commission has before it a proposal called “Brevard County Growth Management Commission”; she does not know if there are going to be 10 votes to pass it on to the voters or not; and inquired how could the Board amend it to take care of some of these problems between the cities and the County. She stated the cities are pillaging the County; she was told when the report was presented to the cities and counties that people from the cities said, “just order lunch as all we’re going to do is eat lunch, we’re not going to discuss any of this”; they do not have any intent of fixing these problems; and the cities want this land. She noted the County is in a bad spot and she wants to know what can be done about it; a big problem is how to allocate the cost and benefits of annexations equitably across units of government and citizens; the taxpayers are left having to fund for roads that the cities get the property taxes on; and reiterated what can be done about it.

Commissioner Scarborough stated this is on Eau Gallie Boulevard; and inquired is it not a State highway. Planning and Zoning Director Mel Scott responded it is a State road. Commissioner Scarborough stated while Ms. Busick has a good point, it would not necessarily apply to this particular case. Mr. Scott stated there may be some minor maintenance expenses that the County would incur for drainage rights-of-way, but it is a State road. Ms. Busick noted she knew it was a State road; and inquired is the $971.00 in MSTU’s for drainage. Commissioner Scarborough responded the County gets the MSTU whether or not it has the road in front or not; there are some roads that will always have a County complexity if a road is running through a municipality that has County functions; the JPA and visiting with the cities on a case-by-case basis is the best way to handle this; and he knows there is a Charter amendment, but it becomes difficult to get the cookie cutter out on these as every road is a little bit different.

Ms. Busick inquired can the County Attorney and staff come back to the Board with answers to solve this; and requested the Board ask for a report in regard to annexation.

Chair Higgs stated the County Attorney can respond concerning the State laws that govern annexation.

County Attorney Scott Knox stated the State law governs annexations unless the Charter has a provision that deals with it, which it does not right now. Ms. Busick noted the Charter could do something; and inquired can Attorney Knox say what the Charter could do. Attorney Knox responded the Charter can address the methods and procedures for annexation as long as it is not inconsistent with general law. Commissioner Carlson stated the Charter has to go through a constitutionality check, which is in place; it has to go through the CRC; and if it does not go through there and seems like a good idea, presenting it to the Board is a possibility as it is within the Charter.

Commissioner Pritchard stated Ms. Busick does well with bringing up her points; her point here is well taken because the municipalities are taking all of the property and leaving the County with the maintenance of the road; it is losing revenue to maintain the road, which means it either has to cut services or raise another revenue stream; and it needs to be addressed.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to acknowledge receipt of Annexation Request #AR-2004-05 from the City of Melbourne, of approximately .28 acre along the north side of Eau Gallie Boulevard for the existing veterinary hospital. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ANNEXATION, REZONING, AND COMPREHENSIVE PLAN
AMENDMENTS BY CITY OF WEST MELBOURNE, RE: PROPERTY SOUTH AND
WEST OF I-95, WEST OF MINTON ROAD, AND NORTH OF HIELD ROAD

Glenda Busick stated this is another annexation issue in West Melbourne; staff indicated it is 477 acres; what she thought was unusual was that the City was annexing the property based on it annexing something else before; in the Florida City and County Report it talked about that and one of the solutions was to prevent the 100-year threshold from being circumvented and require contiguous unincorporated lands annexed within a two-year period to be treated as a single annexation for purposes of calculating the total acreage; and the City is annexing one part and then it can annex something else. She noted Melbourne High School is at 111% capacity; the schools are over capacity; the increase in density of this annexation proposes three units per acre and would have an impact on the current school capacity situation; and it another problem. She inquired is this also a State road; with Chair Higgs responding it is a County road. Ms. Busick inquired is the County losing $3,587 in MSTU’s; with Mr. Scott responding yes. Chair Higgs noted the County maintains all responsibility for the road; with Mr. Scott responding that is correct. Ms. Busick stated she hopes the County can do something in the Brevard County Growth Management Commission proposal.

Chair Higgs inquired are the Comprehensive Plan amendments already before the State; with Mr. Scott responding the City is going to readvertise and staff would expect the City to conduct the public hearing in early June 2004. Mr. Scott stated the annexation occurred on May 4, 2004, so if the Board desires to comment on the annexation, it would have until June 4, 2004 to meet the 30-day window.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to direct staff to forward its comments to the Department of Community Affairs (DCA) and copy the City of West Melbourne. Motion carried and ordered unanimously.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to acknowledge receipt of Annexation by Ordinance No. 2004-28, rezoning, and Comprehensive Plan amendments by City of West Melbourne of approximately 477.5 acres located south and west of I-95, west of Minton Road, and north of Hield Road. Motion carried and ordered unanimously.

APPROVAL OF POLICY, RE: SPEED HUMP INSTALLATION ON COUNTY ROADWAYS

Fran Wales stated about one year ago some of her family members were in the process of trying to get a speed hump for their area; the area met the criteria and people performed those things that were required; she tried to find out when the speed hump would be installed; and she was told it was on the list and being processed. She noted time kept going on; one month ago she called the County to find out the status; and she was told it was on the list, but the Board is reviewing the procedures and requirements so staff is not doing the speed humps. She stated that is fine for new applications, but the County has people who have already met the criteria and performed everything they were required to perform; and now she is finding out that all of that is on hold because the Board is reviewing new procedures and new criteria. She stated those new procedures and new criteria should only be for new applications, not those that have already been in the system and waiting to be performed; she is surprised the speed humps were held up this way; she thinks there are only 12 speed hump requests in the system that are held up at this time; and requested the Board give staff direction for those requests to be done as they have met the criteria. Ms. Wales noted if the County is going to implement new criteria or new procedures, they can be applied to new applications only; and it is the fairest thing to do at this point.

Commissioner Scarborough stated that is staff’s intention. Transportation Engineering Director John Denninghoff stated that is correct.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the Policy for speed hump installations on County roadways to be applied to new applications. Motion carried and ordered unanimously. (See page for Policy.)

PERMISSION TO BRING PROPERTY TO TAX DEED SALE AND AUTHORIZE PURCHASE
BY EEL PROGRAM, RE: RAMINEZ PROPERTY

Walter Pine stated the people keep hearing that the EELS Program is not funded and does not have money, but obviously it is still going well; the project started in 1999; the tax certificates were bought for 1999 through 2003; and expressed concern with the County buying tax certificates because the bidding process is by percentage. He noted the County is not supposed to make a profit off of these things, so the percentage would be zero, while it gives a distinct advantage over any of the public bidding on these; where they are not bid on they are left and the County can pick them up; again there is a significant situation; and the fact that EELS has been working on this since 1999 shows that they had some indication that they would be funded. He stated it gives belief to the idea that these are pre-determined decisions; if one is going to buy something for four years, there must be some realistic expectation when it comes time to buy it that the money is going to be available; he would like to know how many other ongoing purchasing activities are intended to result in a purchase that is still going on in the EELS Program but is not currently funded; and EELS is creating a budget shortfall in the future because the purchases are not currently funded. Mr. Pine noted he sees no wetlands determination; and requested the County not just simply check the last address, but hire somebody to find these people. He stated he checked to find out the average cost to locate somebody is $250; this is somebody’s personal property; if the County is willing to spend all this money to maintain property in the sense it is going to spend four years doing the administrative process and buying the tax certificates, it at least owes the respect to the citizens to spend $250 to find them; and inquired how many thousands of dollars have been spent in the administrative process. He requested the Board consider spending $250 and hiring a local investigator to find the individuals.

Parks and Recreation Director Chuck Nelson stated Mr. Pine is confused on a couple of issues; the EELS Program does not hold the tax certificates; when the taxes were not paid it went through the normal process and the Board ended up owning them because no one bought them; and the Board holds the certificates, not the EELS Program. He noted staff attempted to contact the owner for purchase and was unable to find him; it is voluntary land acquisition program, so with no contact the County did not proceed with it; it is an unusual circumstance; and the parcel is 1.6-tenths of an acre, of which 1.5-tenths is wetlands. He stated that determination was made and the property is not buildable, which is probably the reason the person is not paying taxes; in the end the County ends up with properties that do not have taxes paid becoming County property; and this is a way of clearing it off the books and consolidating the parcel. Mr. Nelson noted the property is in the center of holdings the County already has, so it is important to management of the site; being unable to contact the gentleman, staff was trying to bring the issue to closure so that at least one property was taken care of; the County has funding for it; and there is approximately $5 million remaining in the Program, which the County is using in the process of acquiring lands. He stated when such funding is exhausted then the County is out of money; and it is about $2,000 out of $5 million to accomplish this.

Commissioner Pritchard inquired how long does it take before property that the County owes tax certificates on becomes County property; with Mr. Nelson responding typically he thinks it is seven years. County Attorney Scott Knox stated he does not know off the top of his head and will have to review it.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize Asset Management Department to bring the Raminez property to tax deed sale due to unpaid taxes, and to pay for environmental site assessment and miscellaneous costs associated with purchase of the property; authorize the EEL Program to purchase the property at the tax deed sale if other bidders are present, at not to exceed the appraised value; and in the event no bidders are present, to purchase it for back taxes and costs. Motion carried and ordered unanimously.

RESOLUTION CALLING FOR REFERENDUM ELECTION, AUTHORIZE EXECUTION OF
NECESSARY DOCUMENTS, AND BUDGET CHANGES, RE: RENEWAL OF
ECONOMIC DEVELOPMENT AD VALOREM TAX ABATEMENT PROGRAM

Chair Higgs stated Walter Pine pulled this item from the Consent Agenda after the motion was made to pass the Consent Agenda; and inquired if the Board wishes to reopen the consideration of III.D.1.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to reconsider Item III.D.1. Motion carried and ordered unanimously.

Walter Pine expressed concern with the tax exemptions being given and the abatement program; stated the cost benefit analysis says the fiscal impact to the County will be the cost associated with conducting the referendum election; and inquired what about the loss of taxes and revenue, administration of the program, and the potential of job loss through competition. He noted those are costs the citizens also bear; there are benefits to this as well, such as obtaining new jobs and individual taxes; the County should know what this program is providing to the public; and in the cost benefit analysis for a program like this it sounds good on its face, but if every job that comes in costs one job or if there are business that stay open for a few years, then the County has never recovered its costs. He stated if the County gives a tax abatement and the company spends three years here, then folds or moves on, the County may never recover what it has lost; it is going in the wrong direction here; it is important when it has these programs to have accountability; and he is not against the Tax Abatement Program and is for it. He noted the County has to determine how well the Program works; it should require the programs to demonstrate their efficiencies and benefit to the community; the average salaries are not the only issue; the distributions need to be reviewed; and the County needs to look more carefully to insure it is not losing more than it is gaining. Mr. Pine stated he would like to see the issue of accountability included in the cost benefit analysis; and these same comments apply to Item III.D.2. as well.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution of the Board of County Commissioners of Brevard County, Florida, calling a referendum election on November 2, 2004 within the territorial limits of Brevard County on the question as to whether the authority of the Board of County Commissioners to grant property tax exemptions to new businesses and expansions of existing businesses should be renewed in accordance with the authority of Section 196.1995, Florida Statutes, which pertains to economic development ad valorem tax exemptions, and providing for an effective date; authorize the Chair and County Attorney to sign the necessary documents; and authorize staff to make necessary budget changes. Motion carried and ordered unanimously. (See page
for Resolution No. 04-130.)

PERMISSION FOR EDC TAX ABATEMENT COMMITTEE TO REVIEW, RE: ECONOMIC
DEVELOPMENT TAX ABATEMENT GUIDELINES, AVERAGE ANNUAL WAGE
CRITERIA, AND OTHER CRITERIA

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to request the Economic Development Commission Tax Abatement Committee to review the Economic Development Tax Abatement Guidelines, specifically the average annual wage and other criteria, and provide the Board with recommendations. Motion carried and ordered unanimously.

APPROVE REVISED POLICY BCC-05, RE: ZERO TOLERANCE OF WORK PLACE
VIOLENCE

Walter Pine expressed concern about the policy; stated there should be zero tolerance for violence in the work place; the first couple of paragraphs talk about physical violence; and it goes on to use general terms and controlling the activities of the public. He noted the policy refers to customers coming in and all others should conform to this behavior; the public servants have every right to be fully protected from physical violence; but in regard to people threatening to have some fired and people getting upset because of what is going on, the policy is broadly written; and he could threaten to have somebody put in jail and be valid under the law, but in violation of the policy. He stated the policy needs to be more carefully crafted so that not only do the public servants get the protection they deserve, but the County does not eliminate activities that the citizens are entitled to; under the way this is written, civil disobedience could be eliminated; it is a time-honored method of political activism; and requested the Board hold off on approving the revised policy, consider it more carefully, and get the opportunity for additional word-crafting as the policy is too broadly written at this time. Mr. Pine stated the policy is not currently being applied in a manner that protects the employees; there will be some complaints coming before the Board today where individuals were subject to the County for intimidation; zero tolerance was not the case; individuals were disciplined, but the discipline was far less than was appropriate; and it was an assault and minor disciplinary actions were taken. He noted if the County is going to have a zero tolerance program, then it should be zero tolerance for everybody, not zero tolerance for whoever is picked.

Thelma Roper expressed concern with the policy; stated she understands the County wants to protects its employees; zero tolerance of violence in the work place, especially worker-to-worker is important; government deals with the public all the time; and it cannot control what type of person comes in for services. She noted there may be a disabled veteran with severe PTSD; if someone upsets them, there are already procedures in place to handle that; she does not see where this kind of thing is going to be helpful or protect them any more or better; and her biggest concern with the policy is that this type of thing being used on customers or citizens that come to the government is used just as a stepping stone to start totally blocking the citizens out and not allowing them access to the governmental process or documents. She stated according to the way the policy is written it is a threat on certain individuals’ well-being and they could be banned; it is illegal and totally unacceptable; the County needs to rework the policy and review it; and she has no problem with it protecting its employees, especially when it has incidences where it is employee-to-employee, but it needs to work more on the citizens who come in and not take away their rights to their government and governmental services with this type of policy, which is where it is heading.

Chair Higgs inquired does the policy deal with employees or citizens; with County Attorney Scott Knox responding it can be read both ways.

County Manager Tom Jenkins inquired where it reads both ways; and stated the policy is about employees and not the public.

Commissioner Carlson stated the Zero Tolerance Policy under Violence says, “Violence may be a consequence of the actions of employees, supervisors, customers, clients, vendors, or any other person.” Mr. Jenkins stated the policy is written to employees about employees. Attorney Knox stated the problem shows up in the second sentence which says, “Violence, threats, harassment, physical or psychological intimidation, assault or physical abuse, vandalism, sabotage, arson, and other disruptive behavior in our work place are not acceptance and will not be tolerated”; that does not limit itself to County employees; and if the Board wants to add “by County employees in our work place”, that would take care of the problem. Chair Higgs noted that would imply that it might be acceptable by others. Attorney Knox stated if that is the Board’s concern, it needs to go back and worry about some of the concerns Mr. Pine has raised; threats and harassment can be construed to mean most anything; he has heard Mr. Pine stand up and say things at these meetings that might be construed as threats or harassment by some people; and it is his right to stand up and say it. Mr. Jenkins inquired if Mr. Pine can threaten to harm some individuals; with Attorney Knox responding that is not what the policy says, it says “threats.” Mr. Jenkins advised it says, “Intentional physical harm or threat or harm”; and he would hope no one could threaten employees with physical harm. Attorney Knox noted that is not what the policy says; and he is reading in paragraph 3.a.(1), the second sentence, “Violence, threats, harassment . . .”.

Commissioner Colon stated there have to be certain things in place to make sure the County protects the employees also; no one has a right to get aggressive with them in a manner such that they feel threatened; it is totally different as elected officials because the Commissioners signed up for this; and the citizens can tell the Board anything they want. She noted it is not fair play when it comes to County employees; there has to be wording to make sure no one abuses it; just because someone is a citizen does not give them the right to threaten somebody; and if a person feels threatened then there needs to be something in place to make sure the County protects them. She stated staff may have to do some tweaking to the policy; there are folks who think they can intimidate people; and there have to be things in place. Attorney Knox stated the language can be tweaked to make it do what the Board wants it to do without being so broad.

Commissioner Carlson inquired if someone comes into an office and shows intimidation, talking in a loud voice, and threatening, at what point can a deputy be called to take a person off the premises. Attorney Knox responded if the person is disturbing the peace, it depends on what he or she is saying or doing. Chair Higgs inquired is there something the County could do now to tweak the language to take care of the item. Attorney Knox responded he can review the language and bring it back to the Board.

The Board directed staff to reschedule Revised Policy BCC-05, Zero Tolerance of Work Place Violence, on the agenda for a future date.

PERMISSION TO HIRE C. ALLAN WATTS OF COBB AND COLE, P.A. OR OTHER
APPELLATE COUNSEL, RE: MOSQUITO CONTROL DISTRICT V. BLASKY

Thelma Roper stated she knows Mr. Watts and he was a member of the 1,000 Friends of Florida; one of its main things is it believes in eminent domain takings and takings where one is given the very least for property; having someone who automatically has shown this is what they believe in is not in the best interest of the citizens; and inquired why the County fights so hard against citizens’ rights on property rights. She noted if a judge has declared it is a taking, then something was not done right; the County should not appeal; and recommended the County hire someone other than Mr. Watts.

Walter Pine stated Mr. Watts is past president of 1,000 Friends of Florida; he clearly has this particular philosophy as part of his past; lawyers are supposed to declare if they have a conflict; and in this decision, it is important that the Board choose representation that is independent of any philosophical requirements to represent a particular side, issue, or mannerism. He noted since this is clearly taking the most radical and most strong support of eminent domain seizers at the least compensation rates, it is not independent; the County needs somebody who is going to do what is right, not what their philosophy is; in regard to the taking issue, if there is a court decision that says it is a taking, he has a real problem with any elected official who is sworn to uphold the Constitution appealing a court decision that says it violates the Constitution; and elected officials are supposed to represent the people. He stated it is in the best interest of the people that their rights be construed as broadly as possible; when one works to narrow those rights they intentionally destroy and limit the Constitutional rights of the individual; the rights are not given by the Constitution; and inalienable rights in the Declaration of Independence belong to the people and are protected by the Constitution. Mr. Pine noted the Board is intentionally taking a stance against the people who elected it; the decision was in the broadest benefit of that individual, which is his right; when the Board takes that stance against his inalienable rights, it takes it against his, its own, and everybody who voted for the Commissioners; and it is a contradiction of their oaths of office.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to authorize the County Attorney’s Office to hire C. Allan Watts of Cobb and Cole, P.A. or other appellate counsel, if deemed necessary, to continue representation of the Mosquito Control District on appeal to the Florida Supreme Court in the case of Mosquito Control District v. Blasky. Motion carried and ordered; Commissioner Colon voted nay.

Commissioner Pritchard stated the reason he supports taking this to the Supreme Court is because the issue could affect all of Florida; mosquito control is pretty close to number one on the public’s agenda; if the County does not take this to the Supreme Court, the effect throughout Florida could be devastating on the way that mosquitoes are controlled; and that is the reason the Board is taking the position it is. He noted it is not a question of inalienable rights or tramping on property rights; there were decisions made by the two lower courts; if the Supreme Court affirms that decision, then the County is going to see some dramatic dollars having to be developed and spent on mosquito control; and it could be gazillions of dollars.

The meeting recessed at 10:43 a.m. and reconvened at 10:55 a.m.

PUBLIC HEARING, RE: RESOLUTION APPROVING SECOND QUARTER SUPPLEMENTAL
BUDGET FOR FY 2003-2004

Chair Higgs called for the public hearing to consider a resolution approving the Second Quarter Supplemental Budget for FY 2003-2004.

Commissioner Pritchard stated on page 22 of the budget supplement there is a flow to Spessard Holland Golf Course to repair and maintenance; there is a transfer from The Savannahs Golf Course to assist in funding the maintenance budget at Spessard Holland; staff is researching why the money is coming from The Savannahs as it also needs repair and maintenance; and he will move the item and staff will get back to him about the issue, why this is happening, and what can be done to supplement The Savannahs Golf Course budget.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution approving a budget supplement and amendment for the fiscal year ending September 30, 2004, pursuant to Chapter 129, Florida Statutes, authorizing the Board of County Commissioners to approve a budget supplement and amendment for the fiscal year ending September 30, 2004, and providing an effective date; and authorize the County Manager or designee to approve the required budget changes and take such actions as are necessary to implement the adopted changes. Motion carried and ordered unanimously. (See page
for Resolution No. 04-131.)

PUBLIC HEARING, RE: ORDINANCE AMENDING ARTICLE II, SECTION 2-73, REVISING
DEPARTMENTAL STRUCTURE

Chair Higgs called for the public hearing to consider an ordinance amending Article II, Section 2-73, Revising Departmental Structure.

Walter Pine expressed concern with the fiscal impact statement for the item; stated the County is making major changes here; there are going to be all kinds of costs involved for training, moving offices, computer systems, etc.; and inquired how much is it going to cost and is it going to interrupt services. He noted Section 1.A.6., Natural Resources, includes “and enforcement program”; the County recently had Code Enforcement moved back under Code Enforcement, but now it is putting enforcement programs under Natural Resources Management Office, which was part of the problem in the first place; it is not a dead issue; and he came to the Board concerning the issue of changing the computer system so the citizens would have public records. He stated staff anticipates a cost savings through merging Water Resources and Solid Waste Departments, particularly in the business services and technical support areas; and inquired what does it mean, what about the learning curve, and what about the changes in the computer systems. He noted there is a lot going on when two systems are merged; there is a paradigm shift; all kinds of things have to happen; there will be efficiencies, but costs associated to it; and there are going to be budgetary concerns. Mr. Pine stated before the Board does something it should know how much it is going to cost; the taxpayers want to know what the County is spending and what it is; they do not want the County to just do something and tell the citizens later that it is short of money and it costs three to ten times as much as they had anticipated; and requested the County come up with concrete statements of efficiencies and costs.

Commissioner Pritchard stated Mr. Pine has a good point; anytime the County talks about anticipated cost savings it should have some sort of quantified number and something based on previous experience, as well as a reasonable forecast of what it is going to do; and anytime it can add dollars in, whether it is savings or costs, it makes for better business practice. Commissioner Carlson inquired can the County get a cost benefit review on the item.

County Manager Tom Jenkins stated this is a case where by merging the two departments staff believes it will be able to streamline operations in about three or four key areas where there are currently two departments basically doing similar tasks; by bringing them together, staff thinks there will be some efficiencies, as well as improvements in terms of the quality; the actual cost savings numbers would be determined once staff comes together and identifies those areas where they can improve efficiency by merging the accounting, information systems, engineering, environmental monitoring functions, and those kinds of things; they have not yet been quantified because they are not put together yet; and once they are put together they will certainly be able to do that.

Commissioner Carlson stated sometimes when the County merges things together, movement of entities and departments occur with a cost associated with it; and if there are any costs associated with any movement of departments to do this, she would like the Board to be aware of it.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Ordinance amending Article II, Code of Ordinances of Brevard County, Florida, amending Section 2-73 providing for the departmental structure of County government; providing for conflicting provisions, severability, and an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-20.)

PUBLIC HEARING, RE: ORDINANCE CREATING SECTION 38-7, ESTABLISHING
SURCHARGE ON TRAFFIC CITATIONS TO FUND COURT FACILITIES

Chair Higgs called for the public hearing to consider an ordinance creating Section 38-7, establishing surcharge on traffic citations to fund court facilities.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Ordinance creating Section 38-7, Code of Ordinances of Brevard County, Florida, imposing a $15.00 surcharge for any noncriminal traffic infraction pursuant to Chapter 318, Florida Statutes, and any criminal violation listed in Section 318.17, Florida Statutes; providing for severability; providing for inclusion in the Code; providing for conflicting provisions; providing for area encompassed; and providing for an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-21.)

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTIONS 62-1541 AND
62-1542, REMOVING SINGLE-FAMILY RESIDENCES FROM PIP AND PBP ZONES

Chair Higgs called for the first public hearing to consider an ordinance amending Chapter 62, Sections 62-1541 and 62-1542, removing single-family residences from PIP and PBP zones.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Colon, to forward the ordinance amending Chapter 62, Sections 62-1541 and 62-1542, removing single-family residences as a permitted use from PIP and PBP zones, to the second public hearing in July 2004.

Commissioner Pritchard requested staff explain the item before the Board votes on it and what the overall effect might be; stated the County had several zoning items come up during his tenure; and he has always questioned why single-family was listed in the PIP zoning category.

Planning and Zoning Director Mel Scott stated the ability of one to construct a single-family residence in PIP and PBP is by virtue with the fact that one can also undertake commercial activities in these zones; a single-family residence is a permitted use in the Zoning Codes’ commercial classifications; it is a classic land use incompatibility to have single-family residences regardless of the qualifiers that might be attached to such construction located next to or within an industrial zone; and the theory is to eliminate that land use incompatibility; however, the County recognizes in changing the rules today that there is some reliance in the private sector as it relates to the rule as it has been. He noted this provision has been modified through the public process to allow those existing PIP owners if they wish to go forward and construct a house to do so; the moment they sell their PIP-zoned property it would be a strict PIP use only; so that would sunset, in effect, through sale; and the other occurrence identified is an area in the Valkaria neighborhood where there is a PBP-zoned neighborhood. He stated this is a deed-restricted community that limits it to only single-family residential construction; by virtue of the deed restriction they have eliminated the potential for land use incompatibilities; so the County would recognize that instance as well.

Commissioner Pritchard inquired was there also a problem with trying to build residential in PIP with the different setbacks, which caused some people to have to rezone so their house would not be sideways on the road. Mr. Scott responded one of the things that sets the PIP classification apart from the more intensive and outside-based industrial zoning classifications is the setbacks; it is intended to provide a campus-like setting for enclosed industrial uses; so the large setbacks were not conducive in some cases to property owners’ wish to construct a single-family residence; and the County saw a lot of properties either rezoned or variances applied for.

Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 10, SECTION 10-41, TENT
SALES FOR FIREWORKS (WHOLESALE)

Chair Higgs called for the public hearing to consider an ordinance amending Chapter 10, Section 10-41, Tent Sales for Fireworks (Wholesale).

There being no comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Ordinance amending Chapter 10, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Section 10-41, Tents; specifying that tent sales of fireworks shall only be permitted in the IU-1 zoning classification; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered unanimously. (See page for Ordinance No. 04-23.)

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 78, ARTICLE III, DIVISION 2,
SECTION 78-115, ADDING PUBLIC BEACHES TO LIST OF PUBLIC AREAS IN
WHICH ILLEGAL FIREWORKS MAY NOT BE POSSESSED OR USED

Chair Higgs called for the public hearing to consider an ordinance amending Chapter 78, Article III, Division 2, Section 78-115, adding public beaches to list of public areas in which illegal fireworks may not be possessed or used.

Walter Pine stated Section 1 says, “No person in any park or recreational area or public beach shall carry, fire, or discharge any gun, pistol, firearm, etc.”; he is not opposed to the current changes that are being proposed; however, he would request the Board consider other proposed changes while the issue is under consideration. He noted these are primarily Second Amendment issues; there are many isolated areas of the beaches that people jog on; they jog there particularly because they are isolated; and people who carry a pistol with them while they are jogging do not want others to know that. He stated the issue of self-protection is a strong issue; in those areas on the beach he would ask the Board to consider that people be allowed to exercise their Second Amendment rights for purpose of self-protection; inquired as development goes on, is the County going to say there are going to be no public areas or recreational areas where hunting may occur; and advised as development goes on there is less and less private property available for these historical activities. Mr. Pine noted it is important to write the laws and consider them as the County goes forward such that it would allow these historically acceptable practices; and requested the Board include language, such as “not designated for such purposes” in the proposed ordinance under “No person in any park or recreational area or public beach shall carry, fire, or discharge any gun, pistol, firearm, etc.” He stated to maintain these activities that are culturally important and the issue of self-protection, he would ask the Board to consider other language in the ordinance for update and improvement.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Ordinance amending Chapter 78, Article III, Division 2, Code of Ordinances of Brevard County, Florida, specifically amending Section 78-115, to add public beaches to the list of public areas in which illegal fireworks, as defined in Chapter 791, Florida Statutes, may not be possessed or used; providing for an exemption for special event permitting; providing for severability; providing for inclusion in the Code; providing for conflicting provisions; providing for area encompassed; and providing for an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-24.)

PUBLIC HEARING, RE: RESOLUTION AND FEE WAIVER FOR VACATING PUBLIC
UTILITY AND DRAINAGE EASEMENT IN HOLIDAY COVE, UNIT 1 - RENATO
(LEONARD) AND JOSEPHINE TORDONE

Chair Higgs called for the public hearing to consider a resolution and fee waiver for vacating public utility and drainage easement in Holiday Cove, Unit 1, as petitioned by Renato (Leonard) and Josephine Tordone.

Commissioner Pritchard stated he has a request to continue the public hearing to the July 20, 2004 meeting as it is going to take some time to work out the issues.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Colon, to continue public hearing to consider a resolution and fee waiver for vacating public utility and drainage easement in Holiday Cove, Unit 1, as petitioned by Renato (Leonard) and Josephine Tordone until July 20, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY (OLD DIXIE
HIGHWAY) - GENERAL DEVELOPMENT, INC.

Chair Higgs called for the public hearing to consider a resolution vacating right-of-way (Old Dixie Highway), as petitioned by General Development, Inc.

Transportation Engineering Director John Denninghoff stated the petitioners have requested the public hearing be continued to the August 10, 2004 meeting.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Colon, to continue public hearing to consider a resolution vacating right-of-way (Old Dixie Highway), as petitioned by General Development, Inc. until August 10, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: REVISED TOURISM DEVELOPMENT OFFICE AND TOURIST
DEVELOPMENT COUNCIL OPERATING PROCEDURES MANUALS (OPM)

Commissioner Pritchard requested staff give an overview of the item.

Tourist Development Executive Director Rob Varley stated most of the changes that are being recommended in the manual have to do with two items; the County was trying to separate the Tourist Development Office, which is the staff, from the Tourist Development Council and delineate the responsibilities for both organizations; staff addressed a lot of the issues brought forth through the audit and their suggestions; so there is a lot of detail being changed regarding travel expenses and tying the expenses to trade shows, and the success and failure of such shows, etc. He noted a lot of things are being changed for that purpose; another area of change reflects the concerns regarding committee appointments; in the Operating Procedures Manual (OPM), staff suggests committee assignments and those members to fill out a form stating all of their organizational affiliates so the County does not end up with multi-board members of the same organization; and the TDC approved an operations procedures manual and recommended it to the Board two months ago. He stated the Board pulled the item from the Consent Agenda and directed staff and Chair Higgs to rework the issue and bring it back with some changes; staff has done that; and the TDC wrote a letter requesting the item be brought back to it for consideration.

Commissioner Pritchard stated the TDC at its February 18, 2004 meeting unanimously encouraged the Board to approve the TDC OPM as soon as possible; the TDC requested that any changes made to the OPM be brought back to it for review and recommendation; and inquired does it mean changes that were incorporated into what the Board is reviewing today or any future changes. Mr. Varley responded what the Board is reviewing today. Commissioner Pritchard inquired has what the Board is reviewing today been brought back to the TDC; with Mr. Varley responding no, not all the changes.

Chair Higgs stated the Board told staff to bring the changes back to the Board; Mr. Varley brought it back to the Board as he agreed to do at that time; and staff has followed with what the Board said at that time.

Commissioner Pritchard inquired does the TDC have any recommendations regarding the OPM. Mr. Varley responded the only thing he has heard from TDC members is their concern of transferring the TDC’s responsibility to recommend contracts with third parties to a committee consisting of TDO staff, one TDC member, two tourism industry members, with one being a hotelier, and one other County employee with knowledge of the service that is being sought; it is something staff reviewed and discussed with Chair Higgs; and he can go either way on this. He stated the Board is the policy maker and has to make that decision; one of the reasons staff reviewed this is for the TDO staff to have a say in selecting the contractors; they take his input currently when they discuss recommending contracts; and they appreciate his professional opinion, but he does not have an actual vote.

Chair Higgs stated the one thing that seems to be different about the process the TDC used in setting up third-party contracts is the review totally by the Council; in every other contract the County has various selection committees established; and she does not recall any totally set up with just advisory board members.

Commissioner Carlson stated there are standing committees on the TDC, like the marketing committee that does the short-listing; and inquired is there a way to include TDO folks into an existing group or is it not what the County is looking for.

Chair Higgs stated in looking at the way the County does all of the selections, her thinking was going to that model as opposed to what it has been doing and move towards a more consistent model of how it does contractor selections; there may be some compromise in looking at the language that is currently in the draft that might make others feel more comfortable; she is not totally happy with the way it currently is designed in the document; and there are three people, which is the majority, that are non-County staffers and folks who are not accountable to the Board. She noted the County is accountable for all of the contracts; in this sense if there is a TDC member and two people from the tourism industry, the majority of the committee are folks who are not accountable to the Board; it is her thinking on it; and if there is some language that the Board might agree that would be acceptable to everybody, she is not married to this language.

Commissioner Carlson stated she does not have a problem, but is thinking about the accountability aspect when the TDC is defined to be an advisory board to the Board; she would hold them all accountable for whatever decision they suggest; the Board is the ultimate one that is accountable; but she understands Chair Higgs’ perspective in terms of trying to keep a consistent way of approaching the contracts. She noted she does not know if creating another layer of committees is the way to do it. Chair Higgs stated maybe in a spirit of compromised language, there could be two members of staff, one appointed by the TDC and one in some other department; and if the Board wanted to go with two TDC members and one other person that would be a way to do it.

Commissioner Scarborough stated Laurilee Thompson is his appointment; he would feel more comfortable if the Board could table the item as there may be some compromise that could work; Ms. Busick sent a letter dealing with who was making recommendations to the Board; and if someone serves on any committee that may have minimal functions, he or she does not have to have financial disclosure on who and what they are. He noted someone can be internal or external to some extent and have profound impact; the Board does not have the time to go back and reanalyze; and that is another question he would like to explore, who is making recommendations to the Board and is it assured there are not any conflicts that are being disclosed.

Walter Pine stated the last time the TDC came to the Board it changed its grants program and took out all references from in Brevard County to outside of Brevard County; all the controls and accountabilities that would be required are being removed; this removes all County accountability for expenditures of tax dollars involved here; and inquired with the grant handbook and all of this, what is the County looking at. Chair Higgs responded this is not the grants handbook. Mr. Pine stated he understands, but these things go hand-in-hand; what is happening here is all accountability to the Board and citizens is being removed; the accounts are being moved outside the County; and the requirements to adhere to County personnel policies and to adhere to give deference to County policy are removed. He noted accountability for these communities, especially when they are involved with recommendations on expenditures of tax dollars is extremely important; all accountability is being removed here; the Board is responsible for the expenditure of tax dollars; and it all falls in its lap. He stated the accounts having been moved out of the County are no longer available to the Board without requesting it. Chair Higgs inquired what accounts. Mr. Pine responded the manual originally said the Chief Financial Officer of the County Board account shall establish such accounts within the County system as such Officer shall determine appropriate under the Board for its approval; and that is now removed. Chair Higgs stated that is not correct.

County Manager Tom Jenkins stated it says, “The Board’s accountant shall establish . . .”; and technically there is no Chief Financial Officer. Mr. Pine stated it is all struck through; with Mr. Jenkins responding “Board’s accountant is underlined.” Mr. Pine noted on his copy it is struck through. Mr. Varley stated it may be struck through, but it means Board’s accountant. Mr. Jenkins stated his copy and the Board’s copies are not struck through; and Mr. Pine has an old version. Chair Higgs stated the language says the accountant establishes the accounts within the County accounting system. Mr. Pine noted he got his copy from Commissioner Scarborough’s office. Commissioner Scarborough stated he has both copies for some reason. Mr. Pine inquired how can the public comment on something it does not have. Mr. Varley noted staff will provide Mr. Pine a clear copy.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table approval of the revised Tourism Development Office and Tourist Development Council Operating Procedures Manuals to the July 20, 2004 meeting. Motion carried and ordered unanimously.

CONSIDER SPECIAL MASTER’S RECOMMENDATION, RE: REDUCTION OF FINES AND
RELEASE OF CODE ENFORCEMENT LIENS FOR BARRY COHEN

Karl Bohne, representing Barry Cohen, requested the Board reduce the Code Enforcement fines that appear on Mr. Cohen’s motel in Grant; stated Special Master Capps acknowledged a reduction from $86,000 to $60,900; he also recognized that the cap for this property would be $70,000 based on the County’s formula; and the three Code Enforcement liens were consolidated into Case No. 00-2349 by Mr. Capps. He noted Mr. Cohen is seeking a substantial reduction to a lien that encompasses costs only; all those costs have been paid to date; he verified with Pat Doyle yesterday that there are no outstanding costs for these three liens; and the big fine in this matter was a result of a safety issue concerning some electrical work that was done on the motel in Case No. 00-0854. He stated compliance was ordered by December 31, 2000; Carl Clark acknowledged that he reinspected the property on October 20, 2000 and the critical electrical problems were resolved; Mr. Cohen believes that the $100 a day fine on that particular issue is the substantial fine in this matter and he feels he complied in October 2000; and he was ordered to comply by December 2000. He noted some of the mitigating factors that were present in the special master hearing were that Mr. Cohen is permanently disabled; there are doctors’ records that he submitted on behalf of Mr. Cohen to the special master; his disability has caused a couple of problems, including the inability to correct the problems and a financial hardship on him; and Mr. Cohen is unable to run the motel for a profit because of the disability. He stated now with the mounting fines in excess of $60,000 it is becoming quite a burden upon himself to meet those obligations and meet the obligations of making a profitable business realized in South County. Mr. Bohne reiterated Mr. Cohen is seeking a reduction of the lien to costs only; those were paid the next day after the reduction hearing before Mr. Capps; the outstanding liens of $60,000 were not computed properly because of the resolution of the critical electrical problems that occurred in October 2000; and it is Mr. Cohen’s position that he would like to see the reduction to costs only. He stated all Code issues have been resolved as of the date of this hearing.

Barry Cohen stated he inherited the Code Enforcement violations when he purchased the property; such violations were not disclosed by the seller nor were they observed by the title company; it was not until some time in July 2000 that he was noticed personally in regard to the violations; and prior to that he had looked at the electrical situation and found it dangerous, so on his own he sought electrical help to resolve the problems. He noted in the middle of July 2000, permits had been pulled; all service had been changed out; the motel had been inspected by the Building Department and approved; and there were no critical safety issues. He stated it is his understanding that the $100 a day fine was based on critical safety issues; he was terminated from his duties with Child Protective Services due to his disabilities in October 2001; in December 2001 he had both of his knees replaced and was basically not ambulatory for several months thereafter; and he did not have excess cash flow to hire somebody to do the work that was still existing, including the rotted fascia, three loose tiles, and a boat that was on the ground when he purchased the motel. Mr. Cohen stated the boat had to be chopped up in pieces and dragged to the back side of the motel; the only outstanding Code Enforcement issues he had not corrected were rotted fascia, three missing roof tiles, and the boat; he requested a reduction to $25 a day in December 2001 and was rejected; and no basis was given.

Chair Higgs inquired is there some place Mr. Bohne referred to where it said that all the electrical was resolved. Mr. Bohen responded he can provide the Board with copies; it is faxed page 50; it was sent to him from Sally Lewis; Mr. Cohen hired a contractor to attempt to fix the electrical, but the contractor walked off the job; and Mr. Capps acknowledged that in his order. Chair Higgs stated there was a statement that the electrical problems were resolved; and requested Mr. Bowen speak to that.

Code Enforcement Manager Bobby Bowen responded all the cases were rolled into one case, hence the large amount of fine shown; the violations were cited for exposed electrical, mildew, water damage, rotten fascia, missing tiles, loose support columns, carport added without a permit, and a boat improperly parked on TU-1 zoning. He noted the Building Code violation for the electrical had a compliance date of September 2000; Mr. Cohen did not bring it into compliance until September 2002; he got an extension in between time; and he asked the special master for numerous extensions to the point where the special master told him not to come back and ask for any more extensions. He stated in the case of the boat, the compliance date was extended; Mr. Cohen was to remove it by September 2000; he finally complied with that; however, he brought the boat back again; and on the day of his reduction request before the special master, the boat was back sitting on the property and the special master said he would recommend a reduction if he would come into compliance with the boat within three days of the order. Mr. Bowen noted Mr. Cohen was supposed to remove the shed by March 2000; the compliance date was 2001, but Mr. Cohen did not come into compliance until 2002; there were electrical problems; and from the date Mr. Cohen was supposed to comply and the date he actually complied, he drug his feet over a two-year period.

Commissioner Pritchard inquired considering the problems that Mr. Cohen has and the amount of money that might be available from running the motel, how can someone comply quickly if he or she is having the problems like Mr. Cohen is having. Mr. Bowen responded Mr. Cohen was given compliance dates, he would ask for an extension, and he would come back and ask for further extensions; the one that concerns him is the electrical problems with the motel and wiring issues; and it is very significant. Commissioner Pritchard inquired during the time Mr. Cohen had the exposed electrical wiring violation, was there any other work done to the motel instead of repairing the exposed electrical wiring.

Assistant County Attorney Terri Jones stated the Code officer in the case testified that Mr. Cohen preferred to do other things, such as fixing up a room or something like that rather than doing the electrical work. Commissioner Pritchard inquired if the mildew, water damage, missing roof tiles, loose support columns, the carport built without a permit, and rotten fascia items were worked on or repaired during the time the electrical wiring still needed work. Attorney Jones responded those were not the items that Mr. Clark said were being worked on at this time. Commissioner Pritchard noted there was still the issue of exposed electrical wiring that dragged on for about a two-year period while other work was done to a room.

Mr. Bohne stated the document he showed Commissioner Higgs is a County document where Carl Clark indicated he reinspected on October 20, 2000 and the critical electrical problems were resolved; there is a discrepancy on how long those issues were; the extension date for correction of those matters was December 31, 2000; and Mr. Cohen repaired the critical problems two months before the extension deadline.

Mr. Cohen stated the room Attorney Jones referred to had the mildew and water damage, which was repaired; he was ordered by the insurance company to repair and rebuild the dock because there were loose boards, etc.; anything that was done other than what was itemized in the violations was ordered by his insurance carrier in order to continue to carry liability insurance on the property; and he did not spend extra money because he did not have it and was forced to divert funds he had available to comply with the insurance company. He noted he had to keep liability insurance on the property; he has lost an average of $8,000 for the motel; when he was terminated by DCF and permanently injured in the line of duty, he received no funds from October 2001 until June 2002; and it was through litigation.

Attorney Jones stated on January 5, 2001 a site inspection showed that the violations had not been completely corrected; it appeared that efforts had been expended in other areas other than what was necessary to correct the violations, such as ramps, raised walkway, raised floor in the southeast room in the main house, and dock repair; and the Code officer failed the inspection to start the fine running. He noted the special master, after the inspections on November 16, 2001, declined to reduce the fine from $100 to $25 per day; and John Capps thought there was a health and safety issue to justify $100 a day.

Commissioner Pritchard inquired would the items listed as having been worked on instead of the electrical be involved with liability insurance in order to maintain insurance on the property; with Attorney Jones responding she imagines all the items would be part of liability insurance, especially the County’s violations.

Chair Higgs stated the County is doing a reduction in fine case sent to the Board by the special master and the Board is not rehearing the case; and if the Board did not wish to accept the special master’s recommendation, it would simply send it back for additional consideration. County Attorney Scott Knox noted the Board could do that. Chair Higgs stated if the Board’s task is not to rehear the case and all these things, its task is either to accept or not accept the special master’s recommendation on the fines. Attorney Knox advised the Board’s task is to accept, not accept, or modify.

Commissioner Pritchard stated the amount of information is a little overwhelming to go through even though he has been briefed on it and has gone through it; he always has an issue dealing with the emotional side of the situation also; he can understand there is the legality of liability and concern about disability; and $60,900 is an enormous amount of money and he does not know how Mr. Cohen could pay it. Mr. Cohen noted he cannot pay it. Commissioner Pritchard stated it is like beating a dead horse; he does not have a problem moving forward with the agendaed item, but he has an issue trying to come up with a more reasonable way to see that the repairs are made and the amount of fine is brought to something that can be eventually paid; and his dilemma is how to resolve this while there are still other Code Enforcement issues that apparently need to be taken care of. Mr. Cohen noted he is in compliance.

Mr. Bowen stated everything has been complied with except for the boat; and he assumed Mr. Cohen has removed the boat by now. Mr. Cohen stated he has moved the boat, but it was not the original boat that was in the Code Enforcement violation.

Commissioner Carlson inquired during the special master hearings was hardship taken into account; with Attorney Jones responding yes. Ms. Jones stated it is in the order; medical disability and financial hardship prevented the respondent from meeting compliance in a timely manner; and that is the reason Mr. Capps lowered the fine from approximately $80,000 to $60,000. Chair Higgs inquired if the Board was to accept the special master’s recommendation today is there an opportunity for the respondent to make a further appeal to the special master. Attorney Jones responded under Chapter 162, once a fine is imposed it becomes the purview of the Board not the special master; the Board has asked the special master to hear the cases and make recommendations; but it is ultimately the Board’s decision. Chair Higgs noted so any appeal then comes to the Board. Commissioner Pritchard stated Mr. Bohne mentioned reducing the fines to costs only. Mr. Bohne noted the costs imposed by Mr. Capps totaled $1,400; such costs have been paid; and there are no more costs owed on these liens. Commissioner Pritchard inquired when Mr. Bohne says costs is he talking about enforcement costs of having Code Enforcement officers go out; and stated it seems $1,400 would not cover the amount of paperwork. Mr. Bohne responded it is the enforcement costs and those were the costs relayed at the special master hearing. Attorney Jones stated Mr. Cohen’s case is part of the old cases when the County was not collecting all of the costs; the Board directed Code Enforcement to collect more of the enforcement costs a couple of years ago; the last page of the packet shows what the costs would have been for the old cases if the County had been charging the costs it charges today; and it is $1,671. Commissioner Pritchard noted it was mentioned by Mr. Cohen that many of the violations were inherited by him; and inquired was it taken into consideration by the special master. Ms. Jones responded yes, as Mr. Cohen brought up the issue at the hearing; and Mr. Cohen was given a substantial amount of time before a notice of violation was sent to him and before it was sent to hearing. Commissioner Pritchard inquired how does one pay for something if he or she does not have the money without either overly mortgaging the property or selling the property and doing away with the issue, which apparently the seller did before Mr. Cohen purchased the property. Attorney Jones responded it is a question for every land owner in the County how to maintain their own property; the Board has put a cap of 35% on the Code Enforcement fines; the City of Melbourne does not have a cap; and the fines go on forever, three times as much as the property is worth; and since the Board placed a cap of 35%, that never happens in the County.

Commissioner Colon stated this is a difficult issue; if Mr. Cohen had been able to do something with the property she would not be as sympathetic as she is; and inquired what are Messrs. Bohne and Cohen requesting from the Board. She noted everyone has to follow the law. Mr. Bohne stated the special master made his recommendation of $60,900; Mr. Cohen is requesting the Board modify that to reduce the liens to the costs; if Mr. Cohen said they were $1,400, they are what they are; and requested the Board acknowledge that Mr. Cohen paid those costs and release the liens. He noted he believes Mr. Cohen would acknowledge that there were problems and it took time to correct them; but $60,000 worth of problems is a lot. Commissioner Colon inquired what does Mr. Cohen think is a fair amount; with Mr. Bohne responding $5,000. Commissioner Colon stated the County has received phone calls and letters from neighbors in the area; and inquired were there other issues it is not aware of or were there issues prior to Mr. Cohen purchasing the property. She noted she is very sensitive to Mr. Cohen having surgeries; the hardship of a constituent has to be taken into account; there has to be a balance and something has to be paid; and what that is she does not know.

Mr. Bowen stated according to the Public Records Mr. Cohen owns three pieces of property of which the Property Appraiser has assessed the market value at a total of $316,810. Mr. Cohen noted that is not correct.

Chair Higgs stated she cannot imagine that the County would say Mr. Cohen would only pay the fine amount that is costs; in the absence of a figure that is reasonable other than that, she would go with the special master’s recommendation and stick with that since she has no other reasonable accommodation; and that is her recommendation to the Board.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to accept the Special Master’s recommendation to reduce the accrued fines/lines for Cases 00-0854, 00-0942, and 00-2349 for Barry Cohen in the amount of $60,900.

Commissioner Pritchard stated the amount of money becomes an issue of how is someone going to pay it; while he supports what the special master and Code Enforcement have to go through, he has to look at the human side of it and try to figure out how somebody could pay the fine having accrued it as they have; through whatever reasons it accrued, it has accrued; and in its entirety it is too large a fine to ever be paid, so he will not support the motion. Chair Higgs stated she understands that; she does not hear some reasonable plan of making restitution on the fines; she is willing to accept a $26,000 reduction, which is sizeable; and she is not opposed to considering something else reasonable, but no fine is not reasonable. Commissioner Pritchard stated perhaps the item could come back with a more reasonable fine and payment schedule; and the Board has to uphold what its process is, but when the process comes up with a number that cannot be complied with then there is a problem. Chair Higgs stated she is not opposed to a table to see if something can be worked out; but she cannot go to nothing. Commissioner Pritchard noted he cannot go to nothing either; but he needs to go to something better than $60,900; and if it takes a motion to table the item and bring it back in July 2004 with something that can be worked out, then he would support that.

Commissioner Scarborough stated he would second a motion to table the item; his problem is whether the Board is going to rehear the issue; and if so, then it becomes very problematic. He inquired how is it going to be different in July 2004; stated maybe the Board should refer the item back to Mr. Capps as he has heard the case; and apparently there are many little nuances in it, and he is not picking up on what is right. He noted all he is hearing is essentially one side and he is not hearing all of the evidence on the other side; that always concerns him because the Board hears the offsetting circumstances; however, it is not like this has not been discussed in detail over many years; and he has spent 15 minutes on it. Chair Higgs stated a referral back to Mr. Capps to see if there are any further recommendations or some accommodation that could be worked out between the special master and the respondent could be done. Commissioner Pritchard noted he would like to know what the cost of repairs has been.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table consideration of the Special Master’s recommendation to reduce the accrued fines/liens for Cases 00-0854, 00-0942, and 00-2349 for Barry Cohen in the amount of $60,900 until July 2004 and refer the item back to the special master.

Attorney Jones stated Mr. Capps always asks her in a recommendation what kind of factors the Board wants to see; and Commissioner Pritchard wants to hear more about extenuating circumstances. Commissioner Pritchard noted he would like to know the extenuating circumstances and what it cost Mr. Cohen; and he is taking into consideration that Mr. Cohen inherited the problems, has had a series of surgeries, and is disabled. He stated he wants to know what the cash flow is from the motel, Mr. Cohen’s ability to pay, and other pertinent issues that will help him make a better decision.

Commissioner Colon noted also included should be any properties owned by Mr. Cohen and the appraised value of those properties.

Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 11:56 a.m. and reconvened at 1:01 p.m.

ACCEPT RECOMMENDATION, RE: DOGS ON THE BEACH STUDY COMMITTEE

Fran Gorecki stated she was honored to serve as the Chairperson of the Dog Beach Study Committee; she is Secretary/Treasurer of the Brevard Animal Recreation Club; the Club is off-leash dog park advocates; and there are about 300 members. She noted she is admittedly pro dog beach; she felt she represented the interest of the dog owners in the County; it is estimated there are perhaps 100,000 or so; and the Board has the official report on behalf of the Committee, but she wants to make one last appeal on behalf of dog owners. She stated she placed petitions at the pet stores and at a few vets’ offices and was easily able to obtain 1,122 signatures of people who would like an ocean dog beach; that is really just the tip of the iceberg; she mentioned the petitions at one of the Committee meetings and she will give them to the Board when she finishes speaking; and she also did a lot of research that she presented at the meetings. She noted Dr. Heshmati recommended against a dog beach for health reasons; she learned that 34 of the 67 counties in Florida have oceanfront beaches; 23 of those counties or 68% allow dogs somewhere on their beaches; and she wrote to the directors of the health departments of those 23 counties and 13 responded. She stated none of them had heard of any cases of diseases associated with their dog beach; she also wrote to the CDC and they said if regular cleanup takes place, it is unlikely that the transmission of infection would occur except under the most unusual of circumstances; she tried to meet the Committee members halfway and offered several compromises on behalf of dog owners; and she compromised and suggested that dogs be allowed only on 500 or 1,000 feet of beach at either Spessard Holland north or south rather than an entire beach. Ms. Gorecki stated that would still leave in excess of 50 miles of public beach where dogs are not allowed; she also compromised by suggesting that dogs be on a six-foot leash, not off-leash; in addition, she suggested they only be allowed from 7:00 a.m. to 10:00 a.m. and 4:00 p.m. to sunset, leaving the prime daytime hours for sunbathers; and even though she did not see any concrete evidence that the turtles would be harmed, she also compromised and suggested that the dogs only be allowed during the non-turtle season. She noted she suggested that the dog beach be done on a trial basis starting with the next turtle season; if the trial was a failure, then the Board could close the dog beach; she believes she proposed reasonable solutions for all of the objections that were raised; and she advised the Committee that she had recruited 31 people who would help to patrol the beach and clean up any stray piles. She stated they would report back to her to see if there was a problem with clean-up compliance; the Committee started with nine members and one person dropped out due to ill health; at the fourth meeting three members who had regularly attended the meetings were absent; and she was extremely disappointed when at that meeting, despite all of her compromises, the motion was made not to have a dog beach and it passed 3:2. Ms. Gorecki noted if all the Committee members had been present, it may have been a tie vote and perhaps the motion would not have passed; she is happy the County is planning to build an off-leash dog park and it is presently in the works; and one includes plans for a pond. She stated it is not the same as having an ocean dog beach; she knows it is a controversial issue and the easiest thing would be for the Board to follow the recommendation of the Advisory Committee; since the vote was close, she hopes the Board will vote on the issue and make its own decision; and if it votes for a dog beach, she is sure dog owners would be immensely grateful, but if it votes against a dog beach, the subject may keep coming up in future years whether it wants it to or not. She noted dog owners pay a large portion of the taxes for the recreational system and beach renourishment; it only seems fair that their needs should be considered, even if it means both sides making some compromises; she would like to think the beaches belong to all the residents of Brevard County; and she does not understand if the people from Brevard County can send men to the moon and two rovers to Mars, why can they not figure out a way to have one small dog beach. Ms. Gorecki requested the Board do the right and fair thing and vote to create a dog beach today.

Chair Higgs thanked all the Committee members for their service and hard work.

Commissioner Pritchard stated when the County started this it was with the intent of looking at the feasibility of having a small area of the County-owned beach set aside for a dog park; he spoke to Dr. Heshmati also and his concern is not only for the beaches but everywhere; he was not specifically identifying the beach as a potential problem area; and his concern would be Countywide with dog feces and dog urine. He noted while he believes in the work of the Committee, he has a problem with the day the motion was made and passed by those in attendance; there were only five of the eight Committee members present; and Ms. Gorecki indicated the members who were not present that day may have opted for a 4:4 split.

Ms. Gorecki stated two of the people who were absent were in favor of it and one told her so after the Committee had finished its business.

Commissioner Pritchard noted the Committee may have acted prematurely and without the body of the entire Committee; and inquired did the vote come about on the last day of the meeting. Ms. Gorecki responded no as there was a meeting after that to tie everything up. Commissioner Pritchard inquired would it have been more appropriate to have the vote at the last meeting with eight members in attendance instead of the meeting before when it may have been orchestrated by those who were opposed to it to conduct a vote. Ms. Gorecki responded she does not know that the Committee planned it that way, but it is how it turned out; and it would have been better to have the vote at the last meeting. Commissioner Pritchard stated sometimes one takes advantage of a situation because he or she can see where it could go; and if there are eight members on the Committee, it would have been more appropriate if eight members would have been there to vote on it. Ms. Gorecki noted she agrees as the eight members participated in the meetings and lost their opportunity to have their say.

Commissioner Pritchard inquired would it be possible to reconvene the Committee just for a vote with the full eight-member membership; and since one person dropped out why was someone else not appointed to make it nine members. Ms. Gorecki stated the Committee felt there would not be enough meetings to warrant assigning someone else and the meetings would have been concluded before the Committee found someone.

County Attorney Scott Knox stated if the Board wants the Committee to reconvene, it can ask it to do so.

Commissioner Colon expressed concern that if someone does not like the outcome, then he or she would try to send the Committee back and refigure things; stated that is not the kind of message the Board wants to send; a lot of hours were put in by County staff and citizens on this particular issue; and she would be careful of accusing someone of not being present because he or she wanted the vote to go a certain way.

Commissioner Pritchard stated that is not his comment, but if there were three members on the Committee that knew they were of a like mind to not have a dog beach and they had their opportunity because it was those three and then two, they rolled their dice, made a motion, and voted on it without having the full membership; he is not trying to change the outcome of the Committee vote; he is trying to get the Committee to vote as a whole; and another concern of his is nine people were appointed, one dropped out which left eight members, so there could be a 4:4 tie. He noted that would have also been a problem; a ninth person should have been appointed to keep it an odd number; and it would not be inappropriate to ask the eight remaining members to come together for one final meeting and one final vote. Commissioner Colon inquired what happens if the Board does not like the outcome of that vote. Commissioner Pritchard responded it is not a question of liking the outcome; he does not have a dog in this fight and does not own a pet; he does not have a personal issue with wanting to have a dog beach; but he has a personal issue with having a Committee of eight take a vote when only five members were present, excluding the three other members and there was still one meeting left that they could have held their vote until.

Parks and Recreation Director Chuck Nelson stated prior to the meeting where the vote was taken, the Committee was charged with looking at sites that had been suggested as possible locations so it could discuss those; it discussed the pros and cons; it was the logical progression that the decision was made at that meeting; and the Committee had not said that there was going to be any specific vote at any specific time. He noted if the standard is to always have the maximum on committees, it is going to be extremely difficult in a volunteer committee process; it is rare to have 100% attendance at any meeting; he does not know how the County would deal with that; and while the Committee could take it back and get a vote, the interesting part was that the Board, in its direction to the Committee, said it may not be able to come to an agreement, which is probably what could have happened, which would have been the 4:4 vote. He stated the last meeting was to approve the final report that he was asked to draft.

Commissioner Pritchard stated even if it was a 4:4 vote, the Committee could have had an opportunity at that meeting to reconsider and rethink; and at least it would have been the Committee making that decision, but instead three of the members were not present.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to allow the Dogs on the Beach Study Committee to come together for one more vote with the eight members so that everyone can be heard on the issue.

Commissioner Scarborough stated he does not know the reasons why three people were not present at the meeting; it is clear with three more people there the vote could have gone a different way; maybe someone has knowledge that he does not; but the Committee has taken time and put a lot of effort into it, and he would hate to leave it with a question mark.

Chair Higgs inquired when the Committee came back to accept the final report was it a subsequent meeting; with Mr. Nelson responding yes. Chair Higgs inquired how many members were at that meeting; with Mr. Nelson responding six. Commissioner Colon stated there was a meeting afterwards; and inquired were there any members who made comments that they wished they had been present or did they just pretty much discuss the report and approve it to be sent to the Board. Mr. Nelson responded Marty Brown was absent at the meeting and she indicated she would have voted in favor; and he does not know how others would have voted.

Chair Higgs called for a vote on the motion. Motion did not carry; Commissioners Pritchard and Scarborough voted aye, and Commissioners Higgs, Carlson, and Colon voted nay.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to accept the Dogs on the Beach Study Committee’s report and recommendation that there be no dog park on any beaches. Motion carried and ordered unanimously.

CONTRIBUTION TO TITUSVILLE AREA CHAMBER OF COMMERCE, RE: 2004 FOURTH
OF JULY FIREWORKS DISPLAY

Walter Pine stated there are three Board options on the item; last year the funding was not given because the public brought to the Board’s attention a number of discrepancies; on issue number one, he was at the meeting when it was discussed and the $1,000 that was there last year is still there; and the Scottsmoor community had requested $1,000, which the Board referred to the North Brevard Parks and Recreation Advisory Board. He noted such Advisory Board indicated it could not recommend approval because the funds were not budgeted this year; obviously there is $1,000 left that it is willing to give to the City of Titusville that the public proved it was not entitled to last year; not only is he asking that the Board not give any money to the Titusville Chamber of Commerce until it meets the requirements for disbursement of funds and cure the discrepancies that were there last year, which it has not done at this point, but that the extra $1,000 be given to the Scottsmoor community. He stated if other communities are going to be placed under these burdens by the County saying the money is not there and it is there, then there is a problem; it is requiring communities to apply a year beforehand for funding; but when the budget has additional monies available, the communities should be able to apply for those funds. He requested the Board deny the item until the issues are cured; and take the extra $1,000 and provide it to the Scottsmoor community.

Thelma Roper stated a letter was presented to the Board from the Scottsmoor community; not every community can have fireworks because of the location and the like; Scottsmoor has a nice community celebration planned for the 4th of July; and it will have a band also. She noted there will be lots of activities; she has heard if the County approves the funding for Scottsmoor, then it would have to approve it for every little community; Scottsmoor is unique in that it has a City Charter; and it has not totally gone away, but it has not been totally reenacted. She stated the Scottsmoor community is independent and has become cohesive; using the $1,000 that was not given to the Titusville Area Chamber of Commerce last year would be a wise support of an up-and-coming community in the County; the County should be encouraging a community like this to develop its own festivities instead of saying it can go down the road and enjoy someone else’s festivities; and she is not in favor of giving the Chamber $1,000 that was allocated for last year. Ms. Roper requested the Board give $1,000 to the Scottsmoor community; stated the North Brevard Parks and Recreation Advisory Board said it would put the Scottsmoor community’s request in the budget for next year if it sends it a letter; this money is there already; and it should not go to the Chamber.

Commissioner Pritchard inquired who in Scottsmoor would handle this; with Ms. Roper responding Andy Rute is the President of the Scottsmoor Homeowners Association and Lee Byrd, Vice President of the Association, is in charge of the actual 4th of July celebration. Ms. Roper stated there is a Treasurer who handles the funds and there is a Secretary also; and the Association formed a committee for the 4th of July celebration.

Nora Drown stated she works at the Titusville Area Chamber of Commerce; for many years the Titusville Jaycees was the organization that provided the 4th of July fireworks; a few months before last year’s 4th of July it came to the City and indicated it had not been able to fundraise enough money to do the activity and did not have a club with enough membership to continue to perform the obligation; and the City contacted the Chamber of Commerce and asked if it could help in the situation. She noted the City came very close to not having any fireworks last year; the Chamber called Port Canaveral and asked if it would consider participating in the 4th of July fireworks celebration; Port Canaveral generously stepped forward and said it would add the 4th of July fireworks to its 50th anniversary celebration; and the Port was aware of the City’s situation and proved to be an extremely good neighbor to the people of North Brevard. She stated this was just one of the many activities it did last year as part of its 50th anniversary; unfortunately the contribution made by the Port did not cover all of the expenses; the Chamber of Commerce became financially responsible for some of the outstanding bills; and at that time, the Chamber became aware that North Brevard Parks and Recreation had in its budget a line item for $1,000 for Titusville’s fireworks and a line item for $1,000 for Port St. John’s fireworks.

Ms. Drown stated the Chamber was told by Parks and Recreation Department to write a letter to request the release of those funds and the Chamber did so; as of January 2004, the City of Titusville contracted directly with the Chamber for some specific activities it would like to have done; one of those activities is the production of events in the North Brevard area in Titusville; and she has taken on that job and one of the responsibilities she has is producing events. She noted one of the events she would like to keep in North Brevard is the 4th of July fireworks celebration; she has been fundraising for that purpose since January 2004; and requested the Parks and Recreation Department release $1,000 for the 2004 fireworks celebration that has not yet occurred. She stated the Chamber has provided financial disclosure for last year’s fireworks bills to North Brevard Parks and Recreation and Port Canaveral; she does not know what discrepancies Mr. Pine is referring to; and requested $2,000, which is directly relating to the two letters written, one for last year’s fireworks and one for this year’s.

Commissioner Scarborough stated normally one does not pay for something that somebody has already paid for; and inquired is there going to be an extra $1,000 worth of fireworks in Titusville this year because the County is giving $2,000 rather than $1,000, and is the Chamber going to have an extra bang for the County’s buck. Ms. Drown responded she hopes so; the Chamber has contracted with a fireworks company; she has not collected enough money to pay the company for the contract that she has agreed to; and she is still in the process of fundraising enough just for the fireworks. She stated on top of fireworks there are insurance fees, permits, advertising, and other things that are required to do an event of this kind; there are a variety of expenses; and because she came on the job in January 2004, the 4th of July is only a six-month time frame. Commissioner Scarborough inquired how much is the total contract for; with Ms. Drown responding $8,000 for the fireworks and about $12,000 is needed to shoot the fireworks from a barge in the Indian River rather than using the island that is usually used. Commissioner Scarborough inquired if the Chamber spends $8,000 or $12,000, where does the rest of the money come from. Ms. Drown responded she has contacted local businesses and organizations; inserts were included in the City’s water bills requesting voluntary contributions from the public; about $4,500 was received; and mostly the funds would come from individual citizens who would step forward. Commissioner Scarborough inquired how much money has been collected now; with Ms. Drown responding she has approximately $7,300 in the bank at this time.

Bea Polk stated when this first began the taxpayers did not know they were paying for this contribution; she wondered where the money was coming from; the Port told her it provided $2,000 for the fireworks; and then she saw the check for $11,500 with $1,500 for advertising. She noted the first time she asked the Port to have the bill sent in it was $8,000 for everything; when the Chamber found out there was another $1,000 the taxpayers had, the bill came to about $11,000; it still wanted more money; and she does not mind the taxpayers helping, but why are they putting on the whole show while the Chamber collects the rest of the money. She stated if the County gives away taxpayers’ money, then they are entitled to see the books; she has two different billings and does not know which one to believe; both of them came from the Chamber; and requested the Board give the City of Titusville $1,000 instead of the Chamber of Commerce, and $1,000 to the Scottsmoor community. She noted Scottsmoor is a special place and a different part of North Brevard; each year the homeowners get together and make money to help their community; the Chamber wants more and more; and the City provides fire protection for the fireworks celebration. Ms. Polk stated the Chamber should have insurance just like a business does; she does not want the taxpayers to pay for something that is already paid for; the $1,000 this year should go to the City; and she is getting tired of organizations with their hands out for taxpayers’ money. She noted the taxpayers are having a hard time making ends meet; every time she talks to the Board it is having a hard time making ends meet; but then everyone just keeps giving; and the City is entitled to $1,000. She stated the different money figures make the taxpayers wonder what is going on.

Joan Wheeler stated the County should not give the money to the Chamber; the money comes from the taxes the people pay to Parks and Recreation; and inquired for that much money, how many children could get a grant to play on sports teams this summer where they probably could not afford it otherwise. She noted the Chamber is a private non-profit organization, but it seems to be making a lot of money on the City; the City, through its redevelopment agency, hired the Chamber to work on the area where everyone sees the fireworks for $30,000; and inquired are the taxpayers paying the bills for the Chamber to do certain things if they are performed in the same area. She stated she does not want to give the Chamber her money if the future of the City of Titusville is in its hands.

Commissioner Carlson inquired how many other folks does the County give money for fireworks. Mr. Nelson responded Thunder over the Indian River, which is the Port St. John non-profit organization, the City of Cocoa Beach, the District 4 Special Taxing, which is Cocoa and Rockledge, Melbourne, and Palm Bay; and those are all fireworks displays. Commissioner Carlson inquired are they all $1,000. Mr. Nelson responded the only one that deviates from that is the District 4 Special Taxing where the County is a third partner and the other two cities put money into that as well; and it is about $3,000 to $4,000. Commissioner Carlson stated the other organizations put money in as well. Mr. Nelson noted the cities put in money, as well as collect money from their citizens. Commissioner Carlson inquired does the City of Titusville put money into its operation. Mr. Nelson responded they are relatively new; it is collecting funds this year on behalf of the fireworks; but he is not sure to what extent it is actually contributing money. Commissioner Carlson inquired does the City have to purchase liability insurance when it does a fireworks display; with Mr. Nelson responding yes.

Commissioner Pritchard stated a good point was brought up at a previous meeting when it was said it is not always fireworks that make the 4th of July, it is a picnic; Scottsmoor may not be able to shoot off fireworks, but it can certainly have a picnic; it tends to make sense to him that if the County is going to contribute to the celebration of our nation’s birth that it should do that to the extent that people would come forward and ask, and there is a representative organization that would handle it; and allocating $1,000 toward the Titusville display and $1,000 toward Scottsmoor makes sense.

Commissioner Scarborough stated the issue of accountability was brought up; and inquired to what extent does the County examine that the monies were appropriated correctly. Mr. Nelson responded typically the County is dealing with other governments so it does not audit another government and presumes the requirements are being taken care of.

Commissioner Scarborough noted with Port St. John the County is not dealing with government there. Mr. Nelson stated staff has not audited Port St. John.

Chair Higgs inquired what does a fireworks display cost; with Mr. Nelson responding from $7,000 to $20,000. Commissioner Scarborough stated the Parks and Recreation Board turned down Scottsmoor because there were not funds. Mr. Nelson noted there was additional discussion concerning the precedent of funding community events and what door that would open by giving money for something that goes beyond fireworks. Commissioner Pritchard stated when he was deliberating on the item one of the thoughts he had was that the entire County pays a portion of its budget in property taxes; and inquired if it were to allocate one time per year to either an organization or a community homeowners association that is going to put on a memorial picnic, what would be the harm in providing that money other than a $1,000 withdrawal from the County’s accounts. Mr. Nelson responded the Board can do whatever it would like to do; and his caution is that he does not know what the ramifications are in terms of the numbers of how many that may be. Commissioner Carlson stated the only question she has is providing dollars without the accountability to a homeowners association and opening up that door to every homeowners association in the County that wants to put on a fireworks display; and given the fact the Board passed the fireworks issues this morning, saying it does not want individuals in their backyards doing it, then there are going to be more people who want fireworks displays so they can do it legally. Commissioner Scarborough noted every time he does something he asks how does this play next year and in other areas of the community; the County needs to give Titusville the funds; the City is working with the Chamber; and he probably does not have that much more at risk in North Brevard, but the Commissioners need to be aware, as they proceed with the issue, that they may have requests for community events outside of fireworks because the Board is breaking new ground. He stated he was at a Scottsmoor Homeowners Association meeting last night; it is a good group of people who are very much involved; it does not bother him to see Scottsmoor being able to have an event and do things; and inquired why should fireworks be the sacred thing and if people want to get together and visit in a community manner, what is wrong with that for the 4th of July.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to contribute $1,000 to the Titusville Area Chamber of Commerce and $1,000 to Scottsmoor Homeowners Association. Motion did not carry; Commissioners Scarborough and Pritchard voted aye, and Commissioners Higgs, Carlson, and Colon voted nay.

Commissioner Pritchard stated the reason Scottsmoor is appropriate is because he would feel the same for Mims, Micco, Grant, and all of the other communities; they have the identity as a community; Port St. John has an identity; and it is listed as Scottsmoor Homeowners Association because it is the group within Scottsmoor that is willing to take on the challenge, the same as the Titusville Area Chamber of Commerce. He noted he does not envision this and would not encourage this to become the east central something or other homeowners association or whatever the neighborhood might be called; Scottsmoor is an identified community; there are signs on the road that say “Welcome to Scottsmoor,” the same as there are “Welcome to Micco” and “Welcome to Grant” signs; so when the community like this wants to come together and celebrate the 4th of July in some fashion, $1,000 is a reasonable amount for it to request and a reasonable amount for the County to pay. Commissioner Carlson stated putting a lump sum aside for these kinds of events and doing it in a grant process is also a possibility; there are the checks and balances, and the BCA can look into it to do it that way, instead of just dealing out $1,000 here and there; and that is not a positive thing to go forward with. She noted she is sure the Scottsmoor folks are great people, like the Suntree Master Homeowners Association and Viera East; and there are lots of great folks out there.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve $1,500 for the Titusville Area Chamber of Commerce for the 2004 Fourth of July fireworks display and $500 for Scottsmoor Homeowners Association. Motion did not carry; Commissioners Scarborough and Pritchard voted aye, and Commissioners Higgs, Carlson, and Colon voted nay.

Commissioner Colon stated every year the County gives $1,000 to the City of Titusville for fireworks; it needs to stick to that process; it does it for other cities; and it should not be any different.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Option 2, to provide $1,000 to the Titusville Area Chamber of Commerce for the 2004 Fourth of July fireworks display. Motion carried and ordered unanimously.

APPROVAL, RE: AMENDMENT TO 2004A COMPREHENSIVE PLAN FOR RIVEREDGE
DRIVE

Planning and Zoning Director Mel Scott stated the County received word from the Department of Community Affairs (DCA) about the ability for local governments to conduct more than one transmittal public hearing; the County is allowed to change its Comprehensive Plan two times per year; Florida Statutes state local governments are limited to two public hearings for the adoption phase of the twice per year amendment packages; and the request the Board is about to entertain regards the consideration of the insertion of additional amendments to the transmittal package that the Board adopted two weeks ago for 2004A. He noted the DCA has informed the County that if the Board were to give staff direction to prepare for another transmittal public hearing in July 2004, it could inform the DCA and it would hold its review of the transmittal package until it receives the information and amendments from the July 2004 transmittal public hearing; and inquired does the Board wish to proceed to insert additional amendments in the 2004A amendment cycle.

Commissioner Scarborough stated one of the items is at the south side of Titusville and the other item is the north side of Cocoa; with both items there are concerns of the neighborhoods about potential annexations into cities; cities have almost an absolute right to annex if it is what the property owner wants; however, what the County has developed in the Comprehensive Plan particularly allows it to comment as to compatibility. He noted if the Comprehensive Plan itself is not reflecting the community correctly, it puts the County at a great disadvantage in its comments to DCA; both neighborhoods are represented here today; and they could enlighten the Board more.

Chair Higgs inquired what is the essence of the amendments. Mr. Scott responded there are two neighborhoods in question; Riveredge Drive is an enclave on the southern boundary of Titusville along the river; High Point is a community that is north of Cocoa; and both requests are to have the Future Land Use Map be right-sized to match the underlying zoning that is present in the neighborhoods. Chair Higgs stated the amendments would go through regular public hearings; and the Board would allow the amendments to be part of the package in July 2004.

Commissioner Scarborough inquired is anyone present who is in opposition to the two items, and are there any Commissioners who have further questions. No comments were heard.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve an amendment to the 2004A Comprehensive Plan for Riveredge Drive, with a second transmittal public hearing to be held in July 2004. Motion carried and ordered unanimously.

APPROVAL, RE: AMENDMENT TO 2004A COMPREHENSIVE PLAN FOR CITY POINT

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve an administrative Future Land Use Map (FLUM) amendment to the 2004A Comprehensive Plan for City Point. Motion carried and ordered unanimously.

Mr. Scott stated staff will be notifying people who will be affected by the amendments.

CONSIDER STAFF RECOMMENDED CHANGES, RE: AMENDMENT TO SECTION 62-
2117, PARKING AND STORAGE OF RECREATIONAL AND COMMERCIAL
VEHICLES AND EQUIPMENT

Walter Pine stated the County has listed the types of surface coverage; and requested it put in a requirement that the surface coverage, when it is within five feet of the property, be a porous or transmissible surface. He stated there are asphalt and other things that are non-porous; there are water issues and recharge issues; the property owners are entitled to be able to put this type of equipment at their houses; but it should be done in a fashion that it does not increase problems that already exist. He requested some provision be included to give small-scale proprietors and start-up businesses an opportunity to apply for an exception for the first year of business to provide the opportunity for the entrepreneur start-ups to begin; stated a lot of businesses start as home hobbies and home businesses, and they grow and become strong participants in the economy of the community; and it is important to allow them to do that. He noted he would like to see some kind of exception or provision for small-scale proprietors and start-up businesses; and he would appreciate the Board including those two issues.

Commissioner Pritchard stated on Page 2 of 8, staff report, it says, “. . . stabilized and shall include mulch”; it excludes a grassed area; the mulch part of it would cover the percolation of the soil; and inquired why staff listed all the other types of materials and the effect it might have on a permeable surface and percolation.

Planning and Zoning Director Mel Scott responded given the opportunity to use mulch, there does not have to be any difference; the County was operating for years off an interpretation that he offered for the folks that were working the Code in the field so they could identify certain materials that would be acceptable; mulch was one of them; and the idea is so that citizens, as well as Code Enforcement officers in the field, can both understand the law better and do a better job adhering to it. He noted the reason for the grassed area to be prohibited is the spirit of the Code is to have a driveway area so that there are places in a yard where the eye in driving down the street is comfortable seeing things; the County is trying to locate and cordon off certain sections of the yard, which traditionally house certain things like a boat, etc.; and by eliminating grassed area, the County is able to better define, for all involved, where these items might be found. He stated if grassed area was acceptable, then things could essentially be located anywhere in the yard and there would be no need to have a definition of driveway at that point. Commissioner Pritchard noted there could also be a concern about the height that the grass would grow under the boat, vehicle, etc.; Mr. Pine brought up another point about commercial vehicles parked in residential neighborhoods for the beginning business entrepreneur; and inquired what would be an objection to that. Mr. Scott responded enforcement would be very difficult; the County would be requiring Code Enforcement to monitor a length of time; it would have to define what start-up means; and the County would perhaps need to get into thresholds for income and business start-up, which are difficult to define and enforce. Commissioner Pritchard stated by commercial vehicle, he is assuming Mr. Pine means anything that would have signage on it, ladders hanging off the side, and clearly identified as a commercial vehicle. Chair Higgs noted the County defines it in the Code. Commissioner Pritchard stated the County is talking about allowing commercial vehicles that do not have these identifying marks.

Code Enforcement Manager Bobby Bowen stated staff was talking about having any type of vehicle, with the exception of box trucks, wreckers, and things of that nature; it provided in the information the vans, passenger vans, and cargo-type vans; and the signage would be limited to four square feet. Commissioner Pritchard noted ladders hanging off of the side would not be allowed. Mr. Bowen stated that is correct; and the County wants to maintain the integrity as much as possible. Commissioner Pritchard stated the more the County got into this, the more it found that just about everyone was in violation; a F-150 Ford pickup is recreational and a F-250 is commercial; a F-250 could be a fancy pickup truck, but it was listed as commercial because the County was using the definition as provided by the manufacturer; so there has been a lot of tweaking that has taken place and he appreciates staff’s efforts.

Commissioner Scarborough stated once a vehicle is parked on the grass, the grass is going to die; it may build up and become weed-like around certain areas; he has seen areas nicely mulched for parking that can work and are probably more environmentally friendly than having some type of rock or other type of impervious surface; and he does not have a problem with the mulch. He noted he has abandoned the idea of having certain areas designated where people could bring their vehicles and sell them on some block with a site plan.

Chair Higgs stated unless the Board make changes, staff is going to go forward with the item the way it is.

Commissioner Carlson inquired how does the County approach multi-use trailers; stated item (5) includes recreational trailers on residential property; the Board had some issues the last time it discussed the item where someone uses a trailer as a recreational use and then takes the use off the trailer and uses it for yard waste or whatever; and inquired how could the County define it in the Code when the trailer is used for multi-use.

Mr. Bowen responded there was one case where the gentleman had recreational vehicles on the property; that would be fine, but staff does not anticipate somebody leaving their recreational vehicles on their trailer; if the trailer is empty then it would have to be parked to the rear of the house with an opaque barrier; and the problem was the trailer was empty and the individual was leaving it out. He noted staff wanted to fix that part of the Code to where the individual would have to store the trailer to the rear. Commissioner Carlson inquired will staff’s recommendations cover that; with Mr. Bowen responding yes.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve staff’s recommendations for language changes to Section 62-2117, Parking and Storage of Recreational and Commercial Vehicles and Equipment, for (1) driveway expansion; (2) term “stabilized”; (3) parking, locating, and storage on vacant residential and commercial properties; (4) definition of commercial vehicles and equipment; (5) recreational trailers on residential property; (6) commercial vehicles/equipment on BU-1 zoned properties; and (8) storage of cargo trailers on residential property; and direct staff to bring back proposed amendments for approval of legislative intent and permission to advertise. Motion carried and ordered unanimously.

APPROVAL, RE: COURTNEY ROBERTS SETTLEMENT FINALIZATION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize Risk Management to pay the costs of restoring Courtney Roberts’ home in accordance with the Courtney Roberts v. Brevard County settlement in the amount of $94,955. Motion carried and ordered unanimously.

APPROVAL, RE: TDC REVISED CATEGORY E - CULTURAL EVENTS FY 2004-2005
GRANT APPLICATION HANDBOOK

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to approve the revised TDC Category E, Cultural Events FY 2004-2005 Grant Application Handbook, which includes eligibility requirements, types of grants available, criteria for evaluation, instructions, and application forms. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: U.S. 1 CORRIDOR STUDY (POST ROAD TO PINEDA
CAUSEWAY) PLAN AMENDMENTS AND/OR ZONING CODE CHANGES

Commissioner Carlson inquired if Town of Palm Shores and City of Melbourne have been notified and were there no objections.

Planner Todd Corwin responded that is correct; both the Town and City submitted comments; and they are attached in the package.

Commissioner Carlson inquired which option is staff recommending; with Mr. Corwin responding option 1, which maintains the current land use patterns along the roadway. Commissioner Carlson requested staff explain the difference between options 1 and 2. Mr. Corwin responded option 2 establishes commercial nodes in the vicinity of major intersections of U.S. 1 in the area of Pineda Causeway and Post Road; in an undeveloped corridor where the land use patterns were not already established, such establishment of a node would be something more easily accomplished; in an area such as this where the roadway is going to be widened to six lanes and land use patterns are already established, many of them commercial in nature along this roadway, option 1 seems to maintain current land use patterns; and option 1 for residential patterns maintains such patterns on the east side of the roadway.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Option 1, to direct staff to prepare and advertise Comprehensive Plan amendments and/or Zoning Code changes regarding the U.S. 1 Corridor Study (Post Road to Pineda Causeway). Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE, RE: ORDINANCE AMENDING
LAND DEVELOPMENT REGULATIONS RELATING TO COMMERCIAL
NONCONFORMING LOTS OF RECORD

Motion by Commissioner Pritchard, to accept legislative intent and grant permission to advertise a public hearing to consider an ordinance amending Chapter 62, Article IV, Land Development Regulations, relating to commercial nonconforming lots of record; and remove Merritt Park Place Subdivision.

Commissioner Scarborough stated he spoke to Ryan Rusnak yesterday and there are some places in North Brevard that at this moment he cannot proceed forward; he needs additional time or the Board could restructure the item where it could specifically be applied to Merritt Park Place Subdivision; and there could be some problems in his District.

Commissioner Carlson stated she has questions about introducing the commercial element potentially in a non-conforming lot setting into a residential neighborhood. Commissioner Scarborough stated it needs to be examined in some detail because he got into just enough to understand that he does not know the ramifications; and if the County could segregate out Merritt Park Place, he could support the item.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to accept legislative intent and grant permission to advertise a public hearing to consider an ordinance amending Chapter 62, Article IV, Land Development Regulations, relating to commercial nonconforming lots of record; and remove Merritt Park Place Subdivision. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE, RE: REVISING SECTION
46-127 OF LAND DEVELOPMENT REGULATIONS (NOISE ORDINANCE)

James Kormondy, Golf Operations Manager at Barefoot Bay Recreation District, requested the Board’s support in changing the Noise Ordinance; stated there is a fiscal impact of up to $47,000 derived from the loss of revenue from lost tee times, as well as having to purchase a new greens mower to stay ahead of the golfers and only lose one-half hour of tee times; this also impacts the work schedule, both in the pro shop and the crews maintaining the golf course; and they have to rearrange and work longer days, stretch their manpower, and possibly hire another person to make up for the lost time and to get things done early in the morning ahead of the golfers before they catch up with the workers on the course. He noted it is a major inconvenience for the golfers; it might seem like a little thing pushing golfers back one-half hour; it does not work out that way, especially in the winter time; and November through April, the days are shorter and every tee time all day long is booked. He stated on the busiest days there are over 300 rounds of golf; the golf course needs every minute of daylight that is available; and the employees do not just simply push people back one-half hour, but they have to tell people they cannot play their 18 holes of golf, and the golfers become disgruntled. Mr. Kormondy noted many of the golfers will eventually find somewhere else to play; a lot of golfers insist on getting out early in the morning as they like to watch the sun come up as they tee off; if they cannot do it at Barefoot Bay, they will find somewhere else to do that; and the County is losing golfers on a more permanent basis. He stated it also affects the entire community because the golf course at Barefoot Bay is an amenity, much like its swimming pools and tennis courts; the District gets some funding out of its assessment; if it needs to make another $47,000 to make up for this loss of revenue, some of that money is going to be coming out of the District assessment, which is going to affect every homeowner at Barefoot Bay, not just the golfers; and it is a big impact on the whole community, not just the people who use the golf course. He requested the Board’s support to let the golf course employees start mowing earlier; advised the recommendation is 6:30 a.m., but he would like to see it 6:00 a.m.; and 6:30 a.m. will definitely help.

Chair Higgs stated Option 2 would limit the impact and would allow the District to operate in a more efficient manner.

Commissioner Pritchard stated it is his understanding that Option 2 only affects Barefoot Bay; with Chair Higgs responding that is correct.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to accept legislative intent and grant permission to advertise a public hearing to consider an ordinance amending Section 46-127, Noise Ordinance, to exempt lawn maintenance at publicly-owned golf courses; and approve Option 2, Section 46-127 (4), for the purposes of this subsection only, activities include the lawn maintenance of public golf courses within Recreation Districts not located within Community Development Districts, and lawn maintenance on publicly-owned courses within such Recreation Districts shall be permitted between the hours of 6:30 a.m. and 8:00 p.m.

Commissioner Scarborough stated he is going to vote against the motion because the fact that the County is impacted economically would lead to an argument that anything that has an economic impact on somebody should be allowed special concessions; the County is here to preserve the peace and tranquility of the community as well; and he sees some inconsistencies occurring.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Scarborough voted nay.

DISCUSSION, RE: COLLECTING IMPACT FEES WHEN BUILDING PERMITS ARE ISSUED

Thelma Roper stated there was discussion on the impact fees once before; the County is not supposed to be charging impact fees depending on what is done to a house, such as a front porch or something like that; her father had checked on putting a screened front porch on his home about six months to one year ago; and the County was talking about impact fees for a front porch. She noted a front porch is not going to change anything or increase the number of people; and she wants to make sure the County is not charging impact fees on things that are not making a major impact on the area, like front porches.

Chair Higgs requested staff contact Ms. Roper to explain how the impact fee issue works.

Planning and Zoning Director Mel Scott advised there are no impact fees charges for front porch construction on homes.

Commissioner Pritchard stated there were reasons he brought the issue up, primarily because sometimes people are surprised at the end of their contract with construction of a house that they now have an impact fee to pay even though they were told initially what it was going to be; during the course of construction, a lot of folks tend to forget that; while he understands there are issues in the construction community with the amount of money that would have to be laid out early on with the permitting, it would benefit the County to have the money upfront instead of waiting at the end; and the County would have the money for the impact of the project upfront and the connection fees. He noted currently water and sewer connection fees are not accepted until sewer inspection has occurred; sometimes these things do not happen until about a year or so later; so the homeowner now has the additional thrill of getting a substantial fee a year or two after they have occupied the residence; and he was looking at this as a way to eliminate the problem, all of the spinning wheels that staff has to go through because of the way the County currently collects impact fees, bringing the revenue in earlier to the County, and eliminating the surprise to the homeowner when he or she gets a bill a year or two after they have moved in.

Commissioner Scarborough stated the problem is the cash flow; when one starts a project there is not a lot of money to pay things; at the end, the final draw, there is the money to pay all of these things; and that is when the contractor makes his money and the whole thing closes out. He noted the County is going to try to do the right thing, but may hurt some good people who are not going to be able to get a financing package which allows enough in the first draw to make the thing work; therefore, it is going to go contrary to the Board’s general policy that it believes in home ownership; and he would like to keep the current policy.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to keep the County’s current policy on the collection of impact fees.

Commissioner Carlson stated the BCAC recommended unanimously to keep the current policy; it also had additional considerations; and inquired if the Board wants to review them to reduce the problem the County is having with collections.

Mr. Scott responded staff appreciates the consideration of issues it may have administratively from time to time; in discussing this issue with the folks at the front counter, there is a willingness to continue to address the issues as they come up; they are fairly infrequent; and in the midst of 3,000 permits, there might be one instance where there is a fee issue at the end. He stated staff is willing to continue to work the issue per status quo if it is the pleasure of the Board; it does not need to feel compelled to change things because staff is wrestling with the big issue; and it has identified it as a circumstance that does arise, but quite infrequently. Commissioner Carlson inquired is staff taking under consideration administratively some of the suggestions the BCAC has; with Mr. Scott responding yes.

Commissioner Pritchard stated the idea of having fees that are payable upfront with permitting and then fees that are payable at the end of this is not in the best interest of the consumer and purchaser; it creates more problems for staff; Commissioner Scarborough mentioned that upfront the amount of money is generally not as available as it is at the end of a project; he has never built a house that has come in under budget and he has always had more money at the end; and he is always off by 20% or 30%. He noted it is not because of extravagant tastes that have changed along the way; it is that the costs of certain things have changed along the way; so he ends up being slightly in the hole; and he is not a commercial developer and is talking about a couple of houses that he built for himself. He stated it has always been his experience that the amount of money he has that is set aside upfront in his plan draws is never enough to complete the project, and then he is hit with the impact fee; that is why he is suggesting pay it upfront; generally at the beginning of a project, one is enthused, ready to go, paid the permit fee, and has the money for the permit fee; and inquired why not get rid of all the fees at that point so now all one has to worry about is building the house and no surprises at the end.

Commissioner Scarborough stated he is not in the business; and suggested Commissioner Pritchard talk to some people in mortgage lending to see what they advise because what the County received at the original time was that the lending institutions were not going to provide the funds for this and it would impact their capacity as efficient cash flow to make the project move forward. He noted he is willing to listen to more information if Commissioner Pritchard wants to table the item. Commissioner Pritchard stated he would like to table the item as he would like to get input from another county, which charges impact fees at the beginning of the project.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table staff direction on collecting impact fees when building permits are issued to the August 10, 2004 meeting. Motion carried and ordered; Commissioner Higgs voted nay.

AUTHORIZE COUNTY MANAGER TO SUBORDINATE SPECIAL ASSESSMENT LIENS,
RE: PARKWAY DRIVE WATERLINE MSBU PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to authorize the County Manager to subordinate special assessment liens for the Parkway Drive Waterline MSBU project. Motion carried and ordered unanimously.

AMENDMENT #2 TO AGREEMENT WITH INTERNATIONAL GOLF MAINTENANCE, INC.,
RE: GOLF COURSE MAINTENANCE SERVICES FOR THE SAVANNAHS,
SPESSARD HOLLAND, AND THE HABITAT GOLF COURSES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the Parks and Recreation Department to prepare Amendment #2 to Agreement with International Golf Maintenance, Inc. to extend the term and compensation for services at The Savannahs, Spessard Holland, and The Habitat Golf Courses; and authorize the Chair to execute the Amendment. Motion carried and ordered unanimously. (See page for Amendment #2.)

STAFF DIRECTION, RE: PROVISION OF MEDICAID NON-EMERGENCY
TRANSPORTATION SERVICE

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Option 5, to pass on any coordination of the Medicaid Non-emergency Transportation (MNET) service. Motion carried and ordered unanimously.

Commissioner Colon expressed appreciation to Coastal Health Systems for the wonderful job it does.

AGREEMENT WITH THE VIERA COMPANY, RE: JUDGE FRAN JAMIESON WAY
EXTENSION CONSTRUCTION AND REIMBURSEMENT

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to execute Agreement with The Viera Company for Judge Fran Jamieson Way extension construction and reimbursement to the Company in the amount of $120,000 for the County’s share of improvements. Motion carried and ordered unanimously. (See page for Agreement.)

The meeting recessed at 2:21 p.m. and reconvened at 2:31 p.m.

APPROVE LEGISLATIVE INTENT, RE: AMENDMENTS TO CHAPTER 62, ARTICLE XIII,
DIVISION 2, LANDSCAPING, AND DIVISION 3, LAND CLEARING AND TREE
PROTECTION

Carol Hamilton stated she has another option to consider along with the tree preservation; she has a wonderful article and took some pictures yesterday; and submitted the article and pictures to the Board and Clerk. She noted the article talks about the benefits of planting trees along the banks of rivers and streams, to keep pollutants from going into the river or streams; in this case, she is talking about the Indian River Lagoon; as more development occurs along the Lagoon, planting native trees could be a very inexpensive way to help keep pollution out of the Lagoon; and the article explains it quite well. She stated the photographs were taken yesterday of the new boat ramp and parking area on U.S. 1, north of the Pineda Causeway; it consists of a walking path, a new road, and sod was laid; but not one tree is there. She noted there are a few old palm trees, but not one tree has been planted; and requested new native trees be placed along the bank, which would add to the beauty and help keep pollutants out of the Indian River Lagoon.

Commissioner Carlson stated there is a landscaping plan for the park, but it has not been put in place yet. She noted Parks and Recreation Director Chuck Nelson can advise Ms. Hamilton of what will be planted there.

Karen Weichman, representing both Chapters of the Native Plant Society, the Conradina and Sea Rocket, stated the tree removal issue needs to have more detail and more thought; it could possibly weaken the existing Ordinance and there could be problems down the road; and the Native Plant Society opposes taking down canopy, whether it is citrus or native. She noted canopy provides shelter and food for wildlife and understory plants; citrus, if removed, should be replaced with equal dbh; it could be more negative than positive; and the second issue looks good, except for number two in the second paragraph. She stated it would be difficult to quantify this; trees are living organisms, grow at different rates, and have different canopy spreads, depending on many factors; the County needs to insure it is achieving more canopy in the long run; and the last issue is tremendous and should have 10 years. She noted there are other counties that are more restrictive than the five years; some counties have 10 years; and the Native Plant Society supports this so that real agricultural pursuits are aided by this one. She expressed appreciation to the County for what it has done so far; stated the Native Plant Society notices more green space; and there have been some big improvements. She requested the County keep up the good work and not go backwards.

Commissioner Carlson inquired has staff reviewed all these issues and talked to the Native Plant Society; with Natural Resources Management Interim Director Virginia Barker responding no. Ms. Barker stated staff was in a hurry to get the issue to the Board prior to its break, so it brought back legislative intent and planned to meet with interested groups in June or July 2004; and it will bring back more information with permission to advertise in August 2004.

Charles Moehle, President of Modern, Inc., stated Modern, Inc. is either the direct owner or manages 4,000 to 5,000 acres of property in Brevard County, of which the major part of it is agricultural in nature; he would like to speak first about the canopy preservation and landscape betterment plan; it says, “To provide that public projects, such as roadway projects, utility corridors, and stormwater retrofit projects be allowed to mitigate . . .”; he does not see why it should be limited to public projects; and there are private enterprises in these projects and it should be considered there. He requested “private” be included in the language. He noted on tree removal permits he does not understand what problem is solved when the language is added, “ . . . for lots or parcels one acre or larger . . .”; his thoughts are for the agricultural community; such community is busy doing their agriculture and does not come to the meetings; and the individuals talk to several people and hope their message is carried, but they can get involved if they have to, which they did in the SEAS Ordinance. He stated the County is addressing citrus trees, but there are other trees; it should address the agriculture and silviculture in general; they should have the same provisions that help them in understanding the ordinances; and requested the Board exempt the agriculture and specifically silviculture, along with the citrus trees. Mr. Moehle noted in opposition to what Ms. Weichman said, ten years does not help agriculture; agriculture gave input and he spoke to Jim Fletcher; Mr. Fletcher indicated that some time ago he had taken a poll and was surprised to see the five years included; and the agriculture people have a different scenario as this is their livelihood and quality of life. He stated most people would not want the hard work, but the agriculture people love it; most of them are rich in land and rich in quality of life, but they are very poor in money; when things happen to them they have to borrow money; and all of these ordinances are not good for them when they have to borrow money to get through the bad times. He noted sometimes the individuals get pushed out of the agricultural activity by the people who are coming in; there is a State law that says they are responsible for their cows; generally the public does not care about trespassing, riding their four-wheelers, and cutting fences; and the agriculture people have to either fight this, change their way of doing business, or sell.

Fran Wales stated the County needs to review the tree removal section and do more work on it; if the trees are undesirable or invasive, then one should not have to do anything to replace them as the County has been trying to get them out for years, such as Brazilian pepper trees; the County is supposed to be encouraging the removal of those trees; and inquired if it is a diseased tree, is the County going to require somebody to be penalized. She noted the way the language reads now, a person would have to replace at 150%; if the tree was 10 inches or greater, one would have to use a dbh of four inches; on diseased trees, the County might want someone to replace the tree, but be a little more lenient on the replacement criteria; and she assumes on the first page where it talks about the legislative intent of the canopy preservation and landscape betterment plans, that redevelopment sites would mean sites like the facility here at Viera. She stated she does not know if the County has looked at its parking lot here, but there are beautiful oak trees that cannot grow; the reason is because the trees are planted in two feet of sod surrounded by asphalt; the roots cannot breathe; and the County needs to start looking at alternative things to use for parking medians. Ms. Wales noted it cannot have grass out there for parking, but sometimes it can use pavers or other things that can allow the root systems to get the oxygen needed so the tree can flourish; it increases the canopy; she hopes whatever plan is designed will allow more flexibility; and when dealing with acreage and compensatory stormwater storage, it can sometimes force one to chop down trees. She stated the County may want to look at some way of flexing it a little to accommodate some of the stormwater storage, but still not have to destroy a canopy area that is a healthy canopy area; and expressed concern about providing sufficient tree plantings to achieve a tree canopy equal to 30% within five years. She noted the County needs to talk to native tree experts and agriculture people about this; it does not want to encourage one type of tree taking over an area because everybody is wanting to push a tree that will grow rapidly and achieve this; when there is one type of tree and a disease comes in, there is an impact far greater than anticipated; and being allowed to mitigate offsite is important. She stated she has seen some areas where businesses had to put many trees under power lines to meet the requirement of the Code; sometimes if offsite mitigation occurs, it can be beneficial for a healthier tree canopy; the finances of right-of-way issues and right-of-way acquisitions are killing the County; and it is hard enough just to get the money to build the roads. Ms. Wales noted if there are right-of-way acquisitions on roadway projects for landscaping, it is going to drive the costs far greater than anticipated; some areas being landscaped have trees planted down the medians to keep costs down; St. Augustine has pines and nice trees planted in the medians, but is not doing fancy landscaping; and the issue has a lot of good potential. She suggested it needs to go before the BCAC to have input and recommendations on how to make this work; stated she is excited about it; and it has a lot of good potential for the County.

Commissioner Colon stated when she and Fran sat on the Palm Bay City Council, they were the only ones asking the Council about trees, canopy, and beautification; it would go on deaf ears; and she hopes there is cooperation with the BCAC and the County to make sure the issues are looked at. Ms. Wales stated she would like to see this work and come up with suggestions to make it happen, rather than just reasons why it cannot.

Douglas Sphar stated he supports the proposed legislative intent, but has concern about one aspect of the agricultural exemptions; the intent is to close the agricultural exemption loophole, which allows a property owner to obtain an agricultural exemption, clear the property, and then immediately apply for a zoning change for development; item 3 says, “Establish requirements for properties seeking conversion prior to the five-year time period, including penalties under Sec. 62-4362 . . .”; and this seems to favor those who would gain in the system, not the good faith operator of an agricultural operation or the long-time owner of a family farm. He noted that Section of the Code referenced imposes a fine of $500.00 per one-quarter acre or a fraction thereof for illegal landclearing and additional penalties if protected trees are involved; if a developer could get four to six homes on one acre, a $2,000 penalty for one acre of clearing is just a small cost of doing business, probably less than one percent of the market value of just one of his homes; and recommended that premature conversion not be allowed except for the stated cases of bankruptcy or estate settlement. He stated alternatively, the per quarter-acre penalty should be significantly increased to an amount that takes it out of the realm of just a cost of doing business.

Walter Pine stated he would have liked to have seen the item considered as three separate issues as they are important; the public deserves the time to make full comment on each of the issues; he was in a meeting last night, which Ms. Elmore attended, where public comment was taken; and he does not hear that public comment being brought to the Board. He noted he made a comment at the meeting; that is one of the problems that the community is complaining about; one of the major comments that was made last night was, “we don’t need this, we believe in saving the land, we believe in taking care of it, we know how to do it, if you think you know better, teach us”; and he sees nothing in the legislative intent about informing the public on how to properly manage the land. He stated the County is treating the public like children and telling them how they will do this; there are some serious problems with this and many of them have been mentioned; on the canopy issue and how fast things grow, one would tend to plant fast-growing trees if there is only five years; and inquired about natural events. He noted it is going to be hard for him to permit a tornado, hurricane, or lightning; there is no intent for an exemption for natural catastrophes; and inquired if there is one and it wipes out trees, does he have to replace all of the trees as well. Mr. Pine stated that is going to be a time when the community is going to be at its economic weakest; there should be exemptions; by properly training the public, most of them are going to do the right thing; on agricultural exemptions, he has a problem with the County requiring replacement of orange trees; and there is such a thing called rest. He noted many good land managers will take out their crops and let the land rest every so many years; this item does not allow that because if he takes out a tree, he has to replace it; a good land manager who is actually using it for an agricultural purpose will allow it to rest periodically; and the exemptions, such as bankruptcy or settlement of an estate, are inadequate.

He inquired what about somebody who becomes disabled or too old to manage the property; stated a lot of children these days do not want to be farmers even though their parents were; they do not want to do the same activities their family did; and when the property owner becomes too old to manage the property, he or she should be allowed to sell off the agricultural property. He noted there also needs to be an exemption for physical disability. He stated the idea of properly managing the land is a good thing; who controls and who manages the property is an important point; the land owner should control that, not government; and if government feels something is being done improperly, it has a duty to train, teach, inform, and not take that authority away. Mr. Pine noted a big problem right now is control and the multiple levels of bureaucracy and regulations that a property owner has to go through; very seldom are they informed what the bureaucracy is, much less the regulation; by the time he or she gets through that, they do not want to hear any more so they never get taught what best practices are; and the first thing people should be taught is what the best practices are and there should be some provision to educate the public as to why these issues are needed so they can also take independent action in support of this, but not unilateral government action.

Commissioner Scarborough stated Ms. Elmore has been generous with her time; he and Ms. Elmore were in Scottsmoor last night; about one week earlier Ms. Elmore was in Sherwood; and there was about 45 minutes for presentation and questions last night. He noted there needs to be a complete understanding of what the County currently has and where it may need to go; in both communities there was a tremendous fear of developers cleaning and clearing properties; in the Sherwood area there was not the same concern since it has the smaller lots; but in the Scottsmoor area there is the belief that people have their homes there and are not using their property for development; and there should be some recognition that this is their home and most of the lots are over one acre. He stated perhaps it is something that can be defined if it is a residentially-used lot that there is some greater latitude for that person to see what he or she wants to do on the property; the Scottsmoor community wanted to have a workshop and work on the ordinance; and in the broadest possible sense, the County does not have to lose by developing if it develops correctly. He noted he was on the 14th story of a building in Orlando for a meeting the other day; he looked down across Orlando; because of all the oak trees he could not see the roads or homes and could only see some shopping centers; and there is the capacity to develop where the County will have just as dense a community. Commissioner Scarborough stated trees are more than trees; they clean and cool the air, quiet the noise, and create a living environment; that is what everyone agrees on; the County has a long way to go; but there is a desire to proceed in some degree of logic in that somebody coming 20 years from now can say Brevard County is still a livable community.

Commissioner Pritchard stated he agrees with Commissioner Scarborough’s comments; he was thinking how nice the tree canopy looks after the FP&L contractor goes through and cuts a nice “V” in it and leaves all these bizarre-looking trees out there; he likes trees, always has, and always will; and part of this issue came about because of the citrus tree. He noted a lot of the citrus trees are falling by the wayside because there is no money in citrus; it is an agricultural crop and was planted for agriculture, not for canopy or ornamental use; it was planted for the product it would develop; and the bottom line is that there are a lot of people who are interested in this, both from the development and environmental communities. He stated the Board is extremely interested in making sure it produces something that is not only reasonable, but workable; there are rules that counteract the ability to maintain trees by requiring elevations, water retention, and other construction issues that require removing trees; it does not make any sense when the County starts looking at how it is going to save a tree, yet comply with all the construction issues it has to deal with; so there is a lot more that has to be done with this. He noted Ms. Wales brought up the point about taking the issue before her Committee and having it involved with the construction of a responsible regulation; that is where it needs to go; it is premature to ask the Board to make a decision today, other than item 2, which is to provide other direction; and recommended the item go before various groups, concerned citizens, and other committees to make sure the County gets the best product available.

Commissioner Carlson stated she agrees with Commissioner Pritchard; item 2 says, “ . . . provide sufficient tree plantings to achieve tree canopy equal to 30% within five years . . .”; several folks indicated it seems to be an unnatural thing and how does one get a tree with the diversity of species out there to grow in five years; and inquired what oversight does the County have to see that the canopy has increased in five years, and does staff check in five years to see if the canopy has improved. She noted that kind of oversight is difficult to write into the Code, although maybe there is a way to do that; there is also the diversification of the species and endemic species, whatever one is replanting instead of making them all the laurel oak, which has been a real good species to grow fast if a hurricane hits and wipes out the landscape; room for growth is very important; and the County needs to make sure if it is going to require it, that there is room for it to grow to its maximum potential. She stated there was one letter attached to the agenda item that talked about connectivity and whether or not it is put on the boundaries of a piece of property or whether there are some other means to connect, have wildlife corridors, and work hand in hand with EELS; there are innovative ways to achieve canopy, and preservation of existing trees, even when property must be filled; there are a lot of good examples about how that can be done; and the County can learn from that without having to worry about clearing the landscape before planting a tree. Commissioner Carlson noted part of that is reducing stormwater if it is possible to retain some of trees or having the trees exist within the stormwater area, which she has seen time and time again; Hibiscus Boulevard is one example; an excellent job has been done in preserving the old oak canopies; and someone has managed to sculpt the stormwater ponds around the big trees. She stated whether it is good or bad for the trees, she does not know; but it seems like it has been effective over the years; and those are the kinds of things she would like to see be discussed.

Assistant County Manager Peggy Busacca stated it is always a challenge for staff to know exactly when to go out into the public; legislative intent and permission to advertise were intended to give staff some direction as to what issues the Board wanted to discuss before it went out into the public and got a lot of anxiety on issues the Board did not want to discuss; what would be helpful today is to say that the legislative intent is something that staff would like to go out and workshop, and talk to various citizen groups; and she has heard comments today that are far broader than simply a betterment plan, agricultural exemption, and tree removal permits. She noted if it is the Board’s intent that staff broaden that beyond the three relatively limited areas, then that would be helpful too; but that is why staff brings legislative intent, so it understands what it is that it is going out into the public to discuss.

Chair Higgs stated it is a useful activity for the County to discuss the issues before staff goes out; however, if it narrows it to several areas, it has a better chance of coming up with a product that it can eventually enact some change and betterment to what it currently has; the betterment plan is a device that needs to move forward as soon as possible; and it gives flexibility to all people who are developing land and gives criteria to it. She noted what everyone is discussing is having the flexibility to do something better and still meet the needs without adding up the points in certain ways; with the betterment plan it is obvious to her that the County needs to move forward; she can understand controversy in regard to the agricultural exemption and tree removal, although the tree removal issues were heard from members of the environmental community who were concerned about it; and what the County has is a very strict Ordinance that this would give some flexibility to. She stated some of the fears that people may have are not necessarily founded; there have been some good points made; it would be her desire to see the County move forward to workshop all three of the issues; and limit it to those issues so that perhaps it can get to a product that it can actually see some action on. Chair Higgs noted if the County broadens it to everything, it is going to not be able to do anything.

Commissioner Scarborough stated he is not disagreeing with anything Chair Higgs said; Ms. Elmore did an excellent job of saying what the problem is now and why a betterment plan would allow one more latitude; he does not believe everyone understood and heard that many things in the language are going to make something that is more workable as opposed to being more restrictive; and there are some communication problems. He noted a lot of people do not understand what the current restrictions are, so they do not understand what the County is talking about; they assume everything it does is new and totally a new restriction; and if something good comes out of the discussions, he would want staff to bring it back to the Board. Chair Higgs stated she does not have a problem with the comments coming back to the Board as the public hearings and public meetings go forth and getting a summary of all the comments; if the Board defines that it is interested in these three things and moves forward on those, then it has a shot at actually accomplishing something; but if it is so broad and shotgun, it is going to become unworkable. She noted she would like to see the betterment plan get refined and usable; and suggested the Board move forward to allow staff to talk with interested groups, draft some things, and come back with comments. Commissioner Scarborough inquired would it also include doing a user-friendly statement of where the County is currently. Chair Higgs responded where the County is currently is necessary to understand why the County is talking about going someplace else. Commissioner Pritchard stated the opening comment in the betterment plan says, “. . . as amended to provide more flexibility and clear direction . . . “; flexibility is a concern; the County hears continuously from folks who are building houses, etc. that the current Ordinance requires them to take trees out in order to build things on it; and it does not make a lot of sense to him to take trees out to build something and then plant in order to get trees back again. He noted there needs to be a way for the County to work with a parcel where its construction requirements do not require the trees to be removed; and it seems it is doing something wrong to begin with and then trying to make up for it later. Chair Higgs stated the flexibility of betterment plans is one of the things that allows that.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to direct staff to move forward to workshop in the community the landscape, land clearing, and tree protection issues to address the use of betterment plans for canopy preservation and adverse site conditions, agricultural exemptions, and tree removal permits.

Commissioner Colon stated she wants to make sure people understand that Ms. Busacca is going to get feedback from those interested parties; sometimes folks are under the impression that County staff has the power to implement something; she does not want the same kind of problems that happened in the past; and she has the utmost confidence in Ms. Busacca. She noted if the Board is heading in the wrong direction, Ms. Busacca needs to get it back on board; and the County wants to see something that everyone is going to be pleased with at the end. Chair Higgs stated she does not think the County will ever get to something everybody is going to be pleased with, but it would like to have most people pleased. Commissioner Scarborough stated the County has a proposed legislative intent; the Board is asking staff to visit with the community groups; they are going to come back and provide comments on the legislative intent; and one of the groups included needs to be through Jim Fletcher. Chair Higgs stated also included are the BCAC, and the native plant people; and everyone needs to work together to see if they can come up with things that are better. Commissioner Pritchard stated public comment needs to become part of the commentary so there is no question about all the things that were said.

Chair Higgs called for a vote on the motion, to direct staff to move forward to workshop in the community the landscape, land clearing, and tree protection issues to address the use of betterment plans for canopy preservation and adverse site conditions, agricultural exemptions, and tree removal permits; talk to interested groups, including Jim Fletcher, the BCAC, and the native plant people; provide a user-friendly statement of where the County is currently; direct that public comment become part of the commentary; and staff report back to the Board with the comments on legislative intent. Motion carried and ordered unanimously.

ACKNOWLEDGE PROPOSAL OF SCULPTOR CHARTER SCHOOL, RE: USE OF FACILITY
ON ARMSTRONG DRIVE IN TITUSVILLE

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to take Item VI.F.3., Acknowledge Proposal of Sculptor Charter School, Re: Use of Facility on Armstrong Drive in Titusville out of sequence on the agenda and hear it at this time. Motion carried and ordered unanimously.

Commissioner Scarborough stated there is a unique situation; normally when the County looks at restrictions it looks at it as a governmental body; it looks at restrictions in a sense of zoning and land use; and this particular property lies in the City of Titusville; however, the County is the owner of Commerce Park. He noted the County is involved in an ownership environment; it is a complex issue; if it has some rights, as the owner of adjoining properties, to enforce certain deed restrictions as opposed to just saying it is okay, there is not a problem; and the Airport Authority has some concerns; but the County may look at it as the landlord who has the property with certain rights and they are not really clear.

Chair Higgs inquired what is the County Attorney’s position in terms of the County’s right to either in the future limit uses and approve or disapprove the item.

County Attorney Scott Knox responded he needs to review the item more carefully.

Fred Watts, Executive Director of Titusville-Cocoa Airport Authority, stated Commissioner Scarborough hit the nail on the head; it is a complex issue; the real issue is the deed restrictions; and the integrity of Commerce Park was set up for specific reasons. He noted the Authority is concerned about the noise and safety issues, including the flight patterns of Spaceport Regional Airport; there is a lot of flight training; the mixture of the helicopters and fixed wing keeps most of the traffic when the Airport is using the east-west runway, north of the runway; and it puts the School and welfare of the children in jeopardy. He requested the Board think seriously about that; stated the rest of the issues are against the City of Titusville; and he will keep it for another discussion with them.

Commissioner Colon inquired is the Authority proposing to not have anything at the site. Mr. Watts responded the building is existing; and he is relying on State Chapter 333 and the City of Titusville’s Airport Zoning Ordinance. Commissioner Colon stated Mr. Watts is talking about the safety factor; and no matter who is there, there would be in danger. Mr. Watts noted that is correct; and he is concerned for the children.

Chair Higgs stated Florida Statutes make particular reference to hospitals and schools; with Mr. Watts responding that is correct. Mr. Watts presented a letter to the Board and Clerk from the Florida Department of Transportation Aviation Office in Tallahassee.

Ken Ward, representing Sculptor Elementary Charter School, stated there are a number of parents and students that are concerned about the future of the School; the Board is the first step in a long process the School needs to go through to occupy that facility; it also has to get approvals through the City of Titusville, which it has already submitted to do that; and the School has a written contract to purchase the existing building at 1301 Armstrong Drive. He noted the building is a 60,000 square-foot facility; although it has been unoccupied for over five years, it is still in excellent condition; the School has looked all over North Brevard for a facility to accommodate it; and they are virtually non-existent. He stated the reason the School needs to move from the existing facility it is in is that the current building, which it had under a year-to-year lease, has been sold; so it has to relocate the School; the School has acquired a 10-year Charter with the School Board; and in order to secure the School’s future, it needs to secure a building of its own and that is why it is looking to purchase the facility. He noted currently the School is housing students in both its brick and mortar facilities, as well as portables; upon renovations of the facility at 1301 Armstrong Drive, the School will be able to house all of its students inside the building without any portables; and it is a good thing. Mr. Ward provided handouts of the site and noise impact information to the Board, but not the Clerk; stated the School is fully aware it is within a noise impact zone established by and agreed to with the Airport; the noise impact zone restricts residential use and educational facilities, unless the facility or house can demonstrate a 25% reduction in noise decibels from the outside of the structure to the inside; and the City of Titusville Code refers to that as well. He noted the School employed an acoustical engineer to do a 24-hour sound monitoring study that shows it has achieved a 60% reduction in the decibel reading; and provided the study to the Board, but not the Clerk. He stated concerns have been raised about the Airport; as a responsible parent and elected official, safety is of the utmost; the School does not believe it meets any thresholds for safety; and it has evaluated the Airport’s clear zones and noise radius areas. He presented a document to the Board, but not the Clerk, that shows where the areas are; stated the maps have been accepted; the School is clearly outside of those ranges; and the School has met with the Airport and Spaceport Commerce people, and talked with the neighbors. He stated the School’s use, based on the County’s deed restrictions, is less intense and will not affect any of the future development of the industrial park; it is already built out and occupied with exception of one vacant parcel; an ink cartridge company is coming in; and the School is willing to acknowledge in writing and public hearing whatever the use of the School. Mr. Ward noted the School does not see how it would impact the future of the Airport, but it sees how the Airport is attempting to impact the future of the School; there are a number of speakers signed up to speak; but if there are no questions, they possibly would waive their time. He stated the School has over 400 students, which equates to about 800 parents and untold numbers of grandparents that have chosen to go to the School as an educational facility for their children.

Chair Higgs stated the Board acknowledges the School representatives being here and she will take Mr. Ward’s opinion that he has spoken for the group, unless somebody is compelled to speak.

Commissioner Scarborough stated he met with Mr. Ward and Greg Lugar, and had Eden Bentley and Barbara Amman from the County Attorney’s Office on the phone at the same time; the more they talked the more confusing it became; it is not within the County’s jurisdiction as it is in the City of Titusville; and therefore, the County looks to certain deed restrictions, rights within deed restrictions, and what it can do within those rights. He noted the issue became very convoluted; they discussed what was recorded, where it was recorded, and when it was recorded; before legal staff spent an inordinate amount of time trying to figure out whether or not the County had rights, it would be best to find out if it would want to enforce its rights; and it would want to enforce its rights to protect the remaining property from a diminution in value. He stated the County does not want to have something come in that is going to adversely affect the other people in the park; Mr. Ward made the argument that perhaps the School does not; there are other issues with the City and Airport; but he does not think as an adjoining landowner that is within the County’s purview, unless the County Attorney can give him more information at this time.

County Attorney Scott Knox responded he does not have any more information at this time; there are restrictions that have been incorporated into the Deed that was given to the bank by the County; the Board reserves the right to approve the use; and it has to decide whether or not its finds the use to be compatible or not.

Commissioner Carlson inquired is there no restriction to doing this and what is the legal side of the exclusion zone. Attorney Knox responded the Deed in the packet is to a piece of property that makes it subject to certain deed restrictions; and the Board has the right to approve the intended use of the subsequent owner based on permitted uses described in the covenants and restrictions. Commissioner Scarborough stated the Board is putting Attorney Knox at a disadvantage when Ms. Amman spent hours and hours looking at the issue before he spoke with her.

Economic and Financial Programs Director Greg Lugar stated one of the points made that was confusing was the actual industrial park that was platted and recorded; the 10-acre parcel that was sold previously is not even part of the industrial park; and the venue was not appropriate to be determining the use at this point because the property is within the limits of the City and it has to review all of the zoning applications and such.

Attorney Knox stated it appears the County owns a piece of property that is not in the platted area, but it is subject to the same restrictions that the platted area is by virtue of the Deed that the County gave to the banks, which means that the County basically has put itself in a position of approving the use and they are consistent with those restrictions; he does not know where anybody else would have any authority or ability to enforce that restriction in the Deed against the County because it is a deal between the County and the bank that bought the property from the County; so the Board has the right to waive that provision as well, meaning if it thinks it is consistent with the park and a valid use, it can do it. Chair Higgs inquired would other entities have to do the same in terms of DOT and City of Titusville; with Attorney Knox responding in terms of regulatory authorities, yes. Commissioner Scarborough stated the difference is those entities have regulatory authority and the County has something like one person sells somebody else a piece of property and there are some provisions on it.

Commissioner Colon stated there are a lot of buildings in the community that are not being utilized; the building in question has been empty for five years; she does not like when people bring certain concerns that do not come across as being truthful; and in this case, it is concern of the safety of the children. She noted it is really dollars and cents; the Airport is worried that somebody else is going to take the spot; it says it clearly, “. . . the potential encroachment and airport incompatible development near Spacecoast Regional Airport”; and the Board has the opportunity to waive it if it chooses. She stated she does not see a problem in allowing a building that has been sitting for five years to be utilized by a school versus it having to purchase some land and developing it; one of the things that has been echoed in the community is that citizens get angry because of all the strip malls that are empty, but yet there are people developing more; people should try to market these places and have people utilize them versus building more; and this item is a plus, unless there is a contract somewhere she does not know about where the Airport wants a different tenant to come into the picture.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to acknowledge the proposal of Sculptor Charter School to acquire and utilize an existing facility at 1301 Armstrong Drive in Titusville; and if the County has certain rights under covenants and restrictions, it determines it is not advisable at this time to enforce the covenants and restrictions, but recognizes there may be other issues before other bodies, such as the City of Titusville and Department of Transportation (DOT), which will also play in the matter. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: MOSQUITO CONTROL ACTIVITIES IN SYKES CREEK
IMPOUNDMENT PROPERTY C-2S LOCATED NORTH OF S.R. 520 IN MERRITT
ISLAND

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to convene as the Governing Board of the Brevard County Mosquito Control District. Motion carried and ordered unanimously.

Mosquito Control Director Scott Linkenhoker stated there is an impoundment located in the middle of Merritt Island, south of S.R. 528; it is about 1,200 acres and the County does not own about 370 acres of the impoundment; the owners of 303 acres of the acreage located between the parcels that the County owns has asked it to stop elevating the water levels; and it no longer becomes a mosquito impoundment and is back to a marsh status. He noted during mosquito season a lot of mosquitoes will be breeding in the area; and requested direction from the Board in how staff should handle the issue, including whether they should continue to spray by aircraft. He stated there are seven different options; this will relate to the other impoundments the County has; there are approximately 1,800 acres of impoundment property the County or any other State government agency do not own; most of the impoundments on this particular piece of property are located in the Blue Way Project with St. Johns River Water Management District; and it is purchasable by the District or Nature Conservatory. He noted the issue is the price negotiations; the County is not allowed to pay 20% over the appraisal cost; staff is at a standstill with that; and there has been an offer from the Nature Conservatory to the property owners, but it is not acceptable to them at this time.

Commissioner Carlson stated in briefing there was discussion about this particular area being used for mitigation by the Port at some point in the past; and inquired how does it affect the County’s options and can the County legally give it up if it has been used for mitigation purposes from another governmental entity.

County Attorney Scott Knox inquired is it part of a permit. Jim Hunt, Mosquito Control Program, responded when the area was mitigated by the Port and Army Corps of Engineers, it only took in the area that the County owned and the Port Authority owned, so Mr. DiChristopher’s property could be mitigated. Attorney Knox noted it is not an issue. Commissioner Carlson stated the mitigation did not affect the property in question. Mr. Hunt noted that is correct. Commissioner Carlson inquired is Option 2 a viable option, and can Mosquito Control actually not flood the property, then allow the nuisance to be created, and require them to abate it. She noted she does not know why staff put in the option if it is not viable. Mr. Linkenhoker stated he is not sure staff can do that with the treatment process it has; anything it does it would have to do by air; and it would be difficult to isolate it at that portion from the rest of the property as staff treats it. Chair Higgs noted the County cannot flood only part of it; with Mr. Hunt responding it cannot flood any of it the way it is now. Commissioner Carlson inquired does one build additional levees, berms, etc. to keep the property from flooding. Mr. Hunt responded the last impoundment that was allowed to be built with the State of Florida was 1973; at that time the regulatory agencies said at no time will mosquito control impoundments be allowed to be altered or more impoundments be built; so there is no way the County can get a permit to alter the impoundment. Chair Higgs stated if staff does not flood it, then it has to spray by air. Mr. Hunt noted that is correct. Commissioner Carlson stated by selling a piece out of the middle of the impoundment it would be altering it. Mr. Hunt noted it is a legal issue. Attorney Knox stated the issue is whether or not the County should try to accommodate the property owner or continue to do what it has been doing for 40 years; the last two options staff reviewed were to allow Mr. DiChristopher to take whatever action he feels is appropriate and the County continue to do what it has been doing, or it can try to work with St. Johns River Water Management District to get a mitigation bank established; and whatever interest Mr. DiChristopher might have he can sell off to somebody. He noted after talking to staff it did not seem too practical to try to shut down operations.

Commissioner Pritchard inquired how many acres of mosquito impoundment areas does the County have; with Mr. Linkenhoker responding approximately 25,000 acres, which includes a large amount on Kennedy Space Center (KSC). Commissioner Pritchard stated the impoundment areas on the KSC may not be a problem, and inquired how many impoundment areas fall under private ownership; with Mr. Linkenhoker responding approximately 2,900 acres. Commissioner Pritchard inquired if the County was to look at purchasing acreage, what would staff assume to be a reasonable price to pay for a mosquito impoundment. Mr. Linkenhoker responded when the County purchased the property in 1997 or 1998, it paid just under $700.00 an acre. Mr. Hunt noted he misspoke and the 2,900 is a total number of impoundment acres outside KSC; and there are 1,700 or 1,800 impoundments that are privately owned. Mr. Linkenhoker stated there are some conservation lands within the property in question; staff is not sure where they are; the Water Management District is working to locate some of them; and that is why the acreage varies so much. Commissioner Pritchard stated if the County was able to purchase the properties at $1,000 per acre the cost would be approximately $1.8 million; and inquired if Mr. DiChristopher was asking $5,000 per acre. Mr. Linkenhoker responded it has not been determined yet, but it is somewhere around that area. Commissioner Pritchard noted if everyone were to fall in line with this, the County would be looking at $5 million; it does not have $5 million, but has about $2 million in EEL money that could start the process if the County wanted to take that position; 330 acres is private property; and one of the options Mr. DiChristopher talked about was building several homes along Sykes Creek and leaving the marsh between the eastern side of Sykes Creek to the back side of the houses that are currently there. Mr. Linkenhoker stated that is the plan as staff saw it; and that could change as it depends on the property owner.

Commissioner Pritchard stated he is looking for a good argument of why he does not want to go back to be known as mosquito county; he does not want to have a mosquito beater, which is a palmetto frond, hanging outside his door so he can take care of the mosquitoes, which are going to come in droves if the County does not continue with its salt water marsh impoundment; the mosquito is about the size of a hummingbird; and the County has to do all it can to make sure it controls them. He noted the property owner has 330 acres and five acres along the strip on Sykes Creek might be developable, depending on whether the County allows access to come from the neighborhood to the east off of North Banana River Drive, so there are about 325 acres that there is little if any market value to because no one can do anything on it; the property cannot be built on; and one might be able to use it for mitigation. He stated mitigation acreage can sell for a large amount of money; it depends on whether the acreage that is being mitigated to would fall into the same category as the acreage mitigated from; and he is trying to figure out what a reasonable price would be as one of the alternatives versus having to spend an extra $100,000 a year with over-flight mosquito control spraying. Mr. Linkenhoker noted $100,000 is a conservative estimate.

Commissioner Carlson inquired what are the County’s chances for option 6, which is the inverse condemnation issue; and stated it sounds like such a huge issue that is going to affect a whole lot of folks and the courts might need to be getting involved. Attorney Knox stated the courts are involved in the Blasky case, but this is a different set of circumstances than the Blasky case; it was 27 acres, which was an insignificant part of the overall impound; this is 330 acres that splits the impound in half and basically keeps the County from using the impound the way it was designed; it also is different in the sense there is a meander line in this area, which there was not in the Blasky area; and there is the presumption there are navigable waters there, which would not have to be paid for. He noted there are a lot of different circumstances; with the County’s impound being split, there is a nuisance defense that it did not have available in the Blasky case; and that is primarily where the County would be going this time. Commissioner Carlson inquired what about the longevity of the agreement and the County’s use of the impoundment for many years. Attorney Knox responded it is a legitimate issue to bring up in court again, but the Fifth District did not seem to buy off on it the first time around; and staff is trying to get it to review it again. Commissioner Carlson stated at least in a court of law maybe the actual value of the property or its intended value could be fair to that; it would be something that the courts ought to be looking at versus the County trying to make a determination since the cost of giving the owner what he wants is going to be astronomical; and the overall impact of taking this piece out is going to be a huge nuisance and cost. Chair Higgs inquired could the County pursue options 6 and 7 simultaneously; with Attorney Knox responding yes. Attorney Knox stated if Mr. DiChristopher wants to do something to try and protect his interest, he can take the County out of it and do that; but at the same time, the County could try to get the Water Management District to set up a mitigation bank; and to the extent Mr. DiChristopher’s property is qualified as a mitigation bank, he can probably sell it off.

Commissioner Scarborough stated one cannot do certain things with his property that negatively impacts his neighbors; the County had discussion concerning the power plants; and inquired is there any ability to look at somebody who is taking action to create a nuisance.

Commissioner Scarborough noted mosquitoes are a nuisance in a sense they are health hazards; one is taking action which is going to drive a health hazard for adjoining property owners; and inquired is there something there the County can look to. He stated it appears the County is mean; however, there is a responsibility from one individual to another. Attorney Knox noted there is a legal responsibility; since 1959 every property owner that has property that creates a mosquito nuisance is required to take care of that nuisance themselves; the County has taken that responsibility over for people who own the impound properties privately; and it has been operating the system for over 40 years. He stated Mr. DiChristopher is trying to put the County in the position where it may have to create a nuisance, which it has been trying to protect everyone against for 40 years; the case law on inverse condemnation seems to indicate if one is trying to prevent a nuisance under State law, that is one of the things that is exempt from the takings claims; and that is the issue the County would raise this time. Commissioner Scarborough inquired if the County has to do the fly over, could it bill someone for it. Attorney Knox responded there is an interesting issue based on what the Blasky case said, which is whether or not the County even has a right to do that; and spraying people’s property is not any different than flooding it when it comes to mosquito control. Commissioner Scarborough noted if someone does not want the County to do it, then the Board will have to have an action to require them to do it. Attorney Knox stated that is correct.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Option 6, to allow Mike DiChristopher to sue for inverse condemnation regarding mosquito control activities in Sykes Creek Impoundment property C-2S located north of S.R. 520 in Merritt Island, and Option 7, to work with the St. Johns River Water Management District and/or Department of Environmental Protection to establish private property located within this and other mosquito impounds as mitigation banks to be used to offset the wetland impacts of developments elsewhere in the County. Motion carried and ordered unanimously.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adjourn as the Governing Board of the Brevard County Mosquito Control District and reconvene as the Board of County Commissioners. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE ESTABLISHING
COURT FEE ON THOSE WHO PLEAD GUILTY OR NOLO CONTENDRE TO, OR ARE
FOUND GUILTY OF A FELONY, MISDEMEANOR, OR CRIMINAL TRAFFIC OFFENSE

County Manager Tom Jenkins stated this opportunity was established by the Florida Legislature as part of the Article V implementation legislation; it allows the County to fund innovative court programs, such as Joyce Grant’s program; pay for legal aid, which it is required to do; pay for the Law Library, which it is required to do; and to support the Juvenile Assessment Center, Teen Court; and other juvenile programs.

Thelma Roper stated she understands most of the background behind this; she assumes this is establishing an additional fee to what the normal fees are; and inquired is the County creating an incentive to find people guilty. She noted that is her only concern; she is not objecting to what the County is wanting to use the fee for; it is a good thing; but she wants the County to be careful when it does these types of things as she does not want to see it creating a situation where it is encouraging people to be found guilty where they normally would not be.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant permission to advertise a public hearing to consider an ordinance establishing a $65.00 court fee on those persons who plead guilty or nolo contendre to, or are found guilty of a felony, misdemeanor, or criminal traffic offense. Motion carried and ordered unanimously.

DISCUSSION, RE: 250-BED JAIL DORMITORY

County Manager Tom Jenkins stated the Board had two actions going concurrently; one was the Carter Goble study where it is coming in to do a review of the Criminal Justice System as it relates to jail population and identify future jail needs in the County; the Board authorized proceeding with a 250-bed dormitory; and based on some of the input he received in recent days, he put the item on the Agenda in order for the Board to see if it would concur with delaying the dormitory until such time as the Carter Goble study is completed as the County does not know for certain what the study is going to recommend. He noted the conclusion was that the study will be available in such a short period of time that it might be prudent to wait as the County may need 250 or 500 beds in a dormitory or Carter Goble may recommend no additional dormitories at this time and something else in lieu of that; and he did not want to delay the issue without asking the Board.

Commander Greg Futch advised he agrees with Mr. Jenkins’ comments.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to confirm delaying the 250-bed Jail Dormitory project until the Carter Goble jail study is completed in several months.

Chair Higgs inquired since the RFP is currently in protest, will it move forward so the County is ready. Mr. Jenkins responded staff will not go back out to bid until the Board decides; and staff will get it ready to go to bid.

Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

RESOLUTION, RE: AMENDING RESOLUTION NO. 03-306 APPROVING ISSUANCE OF
NOT EXCEEDING $7,600,000 MULTIFAMILY HOUSING REVENUE BONDS FOR
WICKHAM CLUB PROJECT

Attorney Angela Abbott, representing Brevard County Housing Finance Authority, requested the Board adopt a resolution amending Resolution No. 03-30, which approved the issuance of the Wickham Club Apartments bond issue that is ready to close; stated it relates to the rating on the bonds and verification by the financial advisor for the County; the amendment has been reviewed by Financial Advisor David Moore; and he is agreeable to it. She noted the County Attorney was provided a copy of the amended resolution; and requested approval of the item by the Board, subject to County Attorney and Financial Advisor approvals.

Chair Higgs inquired what will the amended resolution do. Attorney Abbott responded the Resolution as originally stated required that the Financial Advisor verify a AA rating or better on the bonds; during the construction phase of the project, the bonds will have a short-term rating of A1/VMIG1, VMIG1 being the highest short-term rating available; the bonds will eventually be converted to Fannie Mae credit enhancement and will have a AAA rating; so the long-term impact is that the bonds will have a rating that is even higher than required by the Resolution, but in the short-run it meets the Authority’s guidelines.

Chair Higgs inquired if Mr. Moore and Finance Director Steve Burdett are agreeable.

Economic and Financial Programs Director Greg Lugar stated he talked to Mr. Moore and he approves the item.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution amending Resolution No. 03-306 approving the issuance of not exceeding $7,600,000 Multifamily Housing Revenue Bonds of the Brevard County Housing Finance Authority for the Wickham Club Project; and providing an effective date. Motion carried and ordered unanimously. (See page for Resolution No. 04-132.)

RESOLUTION, RE: APPROVING ISSUANCE OF MULTIFAMILY HOUSING REVENUE
BONDS (MANATEE COVE APARTMENTS PROJECT)

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution approving the issuance of not exceeding $12,655,000 Multifamily Housing Revenue Bonds of the Brevard County Housing Finance Authority for Manatee Cove Apartments Project; authorizing execution of related documents; and providing an effective date. Motion carried and ordered unanimously. (See page for Resolution No. 04-133.)

RESOLUTION, RE: APPROVING ISSUANCE OF SINGLE-FAMILY MORTGAGE REVENUE
NOTES, SERIES 2004

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution approving the issuance by the Brevard County Housing Finance Authority, individually, or jointly with another Florida Housing Finance Authority or solely by such other Florida Housing Finance Authority or not to exceed $100,000,000 Single-family Mortgage Revenue Notes, Series 2004, to be issued for the principal purpose of financing the purchase of single-family, owner-occupied homes for persons of moderate, middle, or lesser income within the authority’s area of operation;
and providing an effective date. Motion carried and ordered unanimously. (See page
for Resolution No. 04-134.)

CITIZEN REQUEST - KEVIN APLIN, RE: REFORM AT BREVARD COUNTY JAIL

Kevin Aplin, Vice President of ACLU of Brevard County, stated he is present to begin to lay the groundwork for a proposal to have a citizen review board of the County jail; in the past there have been jail advisory boards and some citizen oversight of the jail; and inquired if the County can get an opinion on what authority the Board has to impose such a review board on the Sheriff and Commander of the jail, and if it has the authority, how far and how much power can the review board be granted. He stated the Miami Police Department has a citizen review board made up of some attorneys, community organizations, members of the NAACP, civil liberties groups, etc. to investigate police brutality complaints, police misconduct, and corruption allegations made by citizens; it is independent of law enforcement, but has the power of subpoena to subpoena witnesses and look at documents; and if an opinion can be obtained, then his organization would like to begin working with the County on a proposal for such a board. He noted before the organization knows what powers and authority the board has, it is fruitless to go forward with a proposal; years ago before he moved to Brevard County there was litigation regarding the overcrowding situation of the jail; there was the Prison Litigation Reform Act, which took the teeth out of litigation on behalf of prisoners and class actions for overcrowding conditions; and very little has changed as there is still an overcrowding problem and a problem of conditions. Mr. Aplin stated the ACLU in the last couple of months has received eight written complaints from family members of inmates and inmates with varying degrees of complaints; the ACLU cannot verify whether 100% of those allegations are true or if any of them are true without any citizen oversight or a way to talk to inmates on their grievances, or a way to talk to corrections officers about a particular grievance; this is the sort of power and authority the ACLU would like to see a group of citizens have so it can get to the truth of what is going on; and it is hard for the public to have faith often in investigations that are conducted primarily by law enforcement. He noted the perception is it is the fox guarding the hen house; sometimes there needs to be independence to get at the truth of the matter; he applauds the Board on the Carter Goble study and the whole criminal justice system as there is not just one solution; and there are many problems that result in overcrowding and lead to pressure on the whole system. He stated of particular interest to him when he read the Contract from Carter Goble was that it is willing to look into alternatives to arrest for incarceration of non-violent minor offenders and alternative solutions to dealing with the mentally ill; probably 20% to 25% of inmates in Florida jails suffer from mental illness; he reviewed the Commission on Mental Health Study the Board received in February; and there were a lot of great recommendations in it, particularly a drop-in center, but it requires money and an investment in looking at alternatives to incarceration, such as treatment centers and more money into social services and programs for the mentally ill. Mr. Aplin noted all law enforcement officers in Florida have the discretion in most misdemeanor offenses to issue notices to appear rather than make an arrest; he hopes the study will reveal which police departments are exercising this discretion for which kind of offenses to see if there are ways to reduce custodial arrests; the ACLU would like to be involved in the citizen review board, including having some licensed physicians to review medical services, mental illness, and if people’s physical health is at risk from conditions in a jail and to evaluate those standards and standards of nutrition and care. He stated most people in the County jail are still innocent; they are presumed innocent at that time; it is important their rights and rights of their family members be respected; and some complaints received by the ACLU are from family members that they are not getting good information from the staff at the jail about the condition of their loved ones. He noted the cost of a phone call at the jail is an exorbitant amount for an inmate who is presumed innocent to call someone; many people on limited incomes cannot afford the huge collect calls; it is a gouging for people who have not been convicted of any crime at that time; and even if people have been convicted or are serving time in the County jail, their civil and human rights should be respected. Mr. Aplin stated the ACLU Board is meeting tomorrow to craft a letter to Commander Futch, Sheriff Williams, and all of the candidates for Sheriff to get their opinion on forming such a board; and requested an opinion from the County Attorney on what power and authority such a board could be granted.

Commissioner Colon inquired how long has the citizen review board been in place at Miami Police Department; with Mr. Aplin responding several years. Mr. Aplin stated there is one review board in Orange County for the Sheriff, but it does not have quite the power; there are only three review boards in existence in Florida; Pensacola recently formed a board; and he can provide the information to the Board. He noted he sent Chair Higgs a study from Colorado where there were suicides at the El Paso County Jail; it formed an independent panel to review conditions of the Jail; and he will provide the report to the Board.

Chair Higgs requested County Attorney Scott Knox provide the information to the Board and copy Mr. Aplin.

Lori LeBlanc-Hawkins stated she is present on behalf of her children, William and Patrick; their father, William LeBlanc refused a breathalyzer test on May 15, 1999; he was arrested and approximately 90 minutes later he was found hanged in his cell while in the custody of the Sheriff’s Office; this may not seem so shocking because of the many problems lately at the jail with overcrowding and suicide issues; but what is shocking is that William never made it to the jail and hanged himself in Viera in the small holding facility. She noted there was an investigation done by the Sheriff’s Office that was given to her; there were no overcrowding issues at that point according to the investigation that the ratio to inmate and officer seemed correct; her children’s father cried out for help by telling the deputy he was depressed, having marital problems, and had caught his new wife in an affair that evening; and William was put on Prozac and two other medications for depression and anxiety prior to the suicide. She stated he asked for arrangements to be made for his care that night because he was depressed; according to the investigation, the officers spoke with each other about the fact that William was depressed, not acting right, and looked like he was ready to go off. Ms. LeBlanc-Hawkins noted William was 6’7” and weighed 240 pounds; she does not know if it was fear on the deputies’ part; William was observed walking into a cell holding his socks in his hands after being told twice to put the socks on and refusing twice; and William used the socks to hang himself from a metal partition inside the Viera holding cell. She stated the Sheriff’s Office conducted its own investigation into the suicide; it was one she has never been satisfied with; there were many conflicting reports, etc.; and if her child dies in her custody, everybody and every agency would come to see why that occurs. She noted she does not understand why the Sheriff’s Office is allowed to investigate something that happens in its custody; it is not right; the County needs to put an independent panel of some sort in place to oversee the conditions and open the jail up to public scrutiny, along with proper training for the officers to spot a suicide threat and any other issues; and it would go a long way to help minimize the troubles and deliberate indifferences that are being encountered in the County. Ms. LeBlanc-Hawkins stated if an officer breaks the rules and does not adhere to proper training and guidelines, they should be held accountable; she would like her ex-husband’s death investigation reopened if possible; his death is proof that overcrowding is not the only problem that needs to be fixed; and she visited with many attorneys on behalf of her children after this occurred and was told there was not anything she could do to hold the Sheriff’s Office accountable because of a foreseeability issue, which means if it could not foresee that William was going to hurt or commit suicide, it could not be held accountable. She noted her children were 11 and 13 at the time; when they read the investigation they could not understand how they could not foresee that their father was suicidal; William said he was depressed, having issues, and was on medication; and the Sheriff’s Office should have been held accountable. She stated if somebody held one person accountable for what occurred on that shift, maybe today the jail would not be going through as much as it is; if one person is held accountable, it sets an example for the rest of the Sheriff’s Office; she was basically told there was sovereign immunity and it was over when William decided to take his own life; and she has often said since then if something was not done to correct the situation that the jail would be heading for a crisis, and it is in the midst of that crisis at this time. Ms. LeBlanc-Hawkins requested the Board put a panel in place to help alleviate the problems; and stated if her time can help with anything she would be more than happy to help.

Commissioner Colon expressed sympathy to Ms. LeBlanc-Hawkins and her family; stated she wants to head in the right direction and make sure that Mr. LeBlanc’s death and everyone else’s death in the jail would not be in vain; and the Board needs to look into it and find out what kind of powers it has to make sure it does not happen again.

Glenn Pinfield, President of Brevard Chapter of ACLU, stated he is present to speak about the jail and criminal justice system; he agrees with everything Mr. Aplin has said; the first time he was here speaking about the jail issue was in 1995; and at that time he indicated that the jail should be turned over to Animal Control because it would run the jail more efficiently and treat the people there more humanely. He noted there should be a citizens review board of the jail that has subpoena power and the power to randomly inspect the jail, not inspections in which somebody notifies the Sheriff two weeks ahead of time and the Sheriff’s Office cleans up everything, tells everybody what to do, and makes sure newspaper reporters only talk to jail trustees or certain trusted employees; and newspaper reporters should have the ability to talk to anybody there and show up whenever they want. He stated as far as the study the Board approved, it is a good thing if the people who are conducting the study take the time to talk to somebody other than law enforcement officials, such as somebody in the ACLU, NAACP, or some other civil rights organizations that might have a slightly different slant than all of the law enforcement that they usually spend their time talking to; the County could have saved $90,000 if it had spoken to him; and the problem with the system is a systemic problem and it is not just in the jail. Mr. Pinfield noted it starts at the very top and goes to the very bottom; there are a number of corrupt judges, State Attorney, and police in the County; there are judges like John Moxley who apparently have never read that there is such a thing as a First Amendment; and they believe it is within their right to send corrupt deputies like Deputy Craig Reynolds to steal things from people and violate people’s rights on a regular basis. He stated there are State Attorneys like Wayne Holmes and Norman Wolfinger who believe that their job is not to prosecute criminals, but to persecute people for political reasons; they do that on a regular basis and it is not anything unusual; the Sheriff runs the jail like it is an ethnic cleansing center; and about 50% of the jail inmates are black and black people are not the majority of law breakers. He noted probably white people break the law just as often; it is just that white people do not have an occupying army in their neighborhoods; a way to eliminate a lot of people from the system is to look at charges for breach of peace; and that means the police had nothing to arrest the people on so they may as well let them go. He stated the police did not like those persons and that is what they use that charge for; resisting arrest is another charge; inquired why the people were arrested in the first place; and noted it means it was political. Mr. Pinfield requested the Board look at the court system to see how many cases are conducted in which people have imposed non-jury trials; stated what it means is a rigged trial; retired Judge John Adkins was famous for doing it and loved such trials in which he would impose non-jury trials on people; and even though he retired in order to avoid having to be kicked out in disgrace, he still comes back to Melbourne to take cases. Mr. Pinfield advised in 1997 he presented the Board with a petition of about 40 or 50 inmates from the jail that included things like the jail continually underfeeding people; he knows somebody in there right now who lost 10 pounds within the first month of being in there; the inmates are dehydrated and have no way to get a drink; and they are denied medical care and access to any lawyer. He stated a lot of police officers do not wear name tags; if they do not like an inmate, the inmate is denied calls; inmates are denied exercise, the ability to file grievances, and have their clothes regularly cleaned; and the deputies at the jail falsify documents on a regular basis that have to do with whether or not inmates want a lawyer or if they have seen any kind of medical person. He requested the Commissioners review the jail themselves rather than voting to build more jail beds.

Harold Koenig, President of H.E.A.R.T., stated he is the father of a young mentally ill daughter who experienced within the past year two horrific experiences at the Detention Center; there are a number of reports of unbelievable horror from family members of inmates; H.E.A.R.T. supports the proposal for a citizen oversight group; and it believes the proposal is in the public interest and can help save lives of young people, but only after basic remedial actions have been taken. He noted H.E.A.R.T. advocates the total cleaning out of the Detention Center senior management and replacing the failed punitive, terror-ridden penal philosophy with one that promotes recovery, rehabilitation, and reentry into society for first-time, non-violent addicts and mentally ill offenders; H.E.A.R.T. views the Detention Center as morally bankrupt; corrective actions are needed, not continuing investigations, and certainly not investigations by those responsible for the disaster; and FDLE, on behalf of the Governor in response to H.E.A.R.T.’s request, is doing just that. Mr. Koenig stated H.E.A.R.T., in conducting 28 public community forums, is searching for leadership with a moral compass to stop the terror, tragic deaths, and continuing suicide attempts at Sharpes; inmate families can attest to the massive depression-oriented terror disaster at Sharpes; his daughter survived two horrific experiences within the last 12 months at Sharpes, but others have not; and some are dead and others bring home deadly diseases, such as Hepatitis C, from violent assaults at the jail. He noted twice within four months his mentally-ill daughter was denied evaluation and taken off of critically-needed medication; the first time she was booked was February 14, 2003; she reported her mental illness and medication, but was ridiculed and denied medication; and she was thrown into the general population. He stated his repeated appeals to jail officials failed even after offering to pay for medication; he sought outside help; after five days of deliberate denial of critically-needed medication, his daughter finally received it; and mental health experts advise one of the worst life-threatening things that can happen to a mentally ill person is to deny them medication that has stabilized their situation. He noted on June 11, 2003, there was an exact repeat of what happened previously; there was no evaluation and no medication for two days; he again went outside for help; and in giving the medication, the jail psychiatrist refused to provide continuity of medication and prescribed different mediation. Mr. Koenig stated such changing of medication could have resulted in tragic consequences; the last time his daughter was incarcerated she asked for a Bible; it took five days of pressure from himself and outside help before his daughter could receive a Bible; inquired what does it take to convince the Board that the Detention Center is out of control; and why not address the root cause of jail overcrowding and the increasing demand for evil substances. He noted not only does substance abuse destroy the youth and decimate families, it is the cause of other major Brevard societal problems; and inquired where is the moral compass leadership.

Tim Doyle, representing the Green Party of Brevard, read a letter from the Green Party of Brevard, as follows: “The Green Party of Brevard has been following the County jail problems and we are concerned. One of the many problems is overcrowding at the Sharpes jail. Instead of building more jails, a solution is to stop incarcerating people for non-violent trivial offenses. The GPB has a solution based in our platform. The Green Party platform states that criminal justice and law enforcement agencies must be held accountable for the welfare of those in their custody. Our solution is the creation and funding of a civilian review board that has the power of subpoena and would also act as a liaison between the agencies and the public. Therefore, the Green Party of Brevard supports the Brevard ACLU proposal to set up a citizens review board to oversee conditions at the County jail. We hope that you would give serious consideration to this suggestion.”

Walter Pine stated this is a difficult situation; about four years ago he performed an act of civil disobedience with the intent of getting himself into the jail because there were reports that veterans were being denied medication and proper medical treatment; he was put in isolation; and there were feces and blood on the wall. He noted he was not properly treated; he was required to give his medical information in an open public area, in violation of HIPPA requirements; the records did not reflect what he actually told them; and the situation is a bad one. He stated he brought his information back to jail personnel; they made changes quickly and as best they could; he is disappointed to see the jail has deteriorated; and after he had been in the jail, the personnel started taking people into a private room to do their medical evaluations and medical professionals came in. He stated funding is an issue; NAMI has created the Mental Health Diversion Program through the courts where individuals who have gone off of their medication or have problems can be diverted from becoming wards of the State to becoming patients; they are properly treated and put back out; and many of those individuals are veterans. He noted when individuals go into the jails and do not get their medications they have episodes and may have problems with the guards; what may have been a simple jaywalking issue can escalate to an assault on a guard; it is not because the individual wants to do it and he or she is a bad person, but because the continuity of medication was not there; so now there is a person who should have been in and out of the jail, but instead he or she is in jail for two, three, or five years. Mr. Pine stated the Diversion Program is not being fully utilized or fully funded; it is very important; a student study was done at Berkeley many years ago by Professor Zimbardy on the jail situation and it escalated out of control; it was supposed to be a number of weeks long and lasted five days; and college professionals found the one issue that worked was independent accountability that made situations manageable. He noted the citizen review board gives that type of accountability; the guards, etc. at the jail are doing the best they can in a poor situation; they need the support; and it is difficult to get information and real descriptions of what goes on inside the jail to the public in a credible manner. He stated what goes on inside the jail is unknown to most people; the only people who see it in most cases are the people who are arrested; their opinions are discounted because they happen to be criminals; and he went through it and saw it from the inside. He noted he would not suggest anybody else do that; it was not the wisest of ways to do things, but what the people have requested from the Board is realistic and a good way to begin the type of corrections needed; and public support is necessary for improvements needed in the jail.

Dan Vanderberk stated the police cannot tell the good guys from the bad guys; a lot of times the bad guys can get away with things, so the police have a hard job to do; the Sheriff also has to take care of homeland security, etc.; and it is not right to blame the Sheriff, police, etc. He noted there is a lot of bad stuff going on and the Board has heard it, but law enforcement is doing a job he does not want to do.

The Board acknowledged request by Kevin Aplin for an opinion from the County Attorney on what authority the Board has to impose an independent citizen review board of the Sheriff and Commander of the Jail, how far and how much power can the review board be granted, and to authorize a comprehensive study of law enforcement practices and crime statistics in the County in order to identify reforms needed in the criminal justice system.

The meeting recessed at 4:31 p.m. and reconvened at 4:42 p.m.

CITIZEN REQUEST - CURT LORENC, RE: POOR MANAGEMENT PRACTICES AND
MISCONDUCT BY CODE ENFORCEMENT MANAGER

Commissioner Pritchard stated Article III, Executive Branch of the County Manager, Section 3.3, Powers and Duties, reads: “The County Manager shall be head of the executive branch of County government and shall be responsible to the Board of County Commissioners for the proper administration of all affairs of County government, not otherwise entrusted to an elected County official”; and Section 3.4, Non-interference by Board of County Commissioners, reads: Except for the purpose of inquiry and information, the Board of County Commissioners and committees of Commissioners are expressly prohibited from interfering with the performance of the duties of any employee of the County government who’s under the direct or indirect supervision of the County Manager. Such action should be malfeasance within the meeting of Article IV, Section 7.A. of the State Constitution.” He inquired is it appropriate for the Board to be hearing this issue regarding an employee’s alleged behavior.

County Attorney Scott Knox responded it is not inappropriate for the Board to hear about it, but it may be inappropriate to try to do anything about it except to maybe refer it to the County Manager. Commissioner Pritchard inquired has the issue been referred to the County Manager; with Attorney Knox responding he does not know.

County Manager Tom Jenkins stated he is not certain what is going to be said today; he quickly glanced at the packet; the issue dealing with the email that was sent at 7:20 a.m. on a County computer has been dealt with by Bobby Bowen’s appointing authority Ed Washburn and Ms. Busacca; and there was a letter in the packet regarding Julielynn Ulrich.

Assistant County Manager Peggy Busacca stated the issue was investigated; and there is a copy of the investigation report in the agenda item. Mr. Jenkins stated those two issues apparently have been addressed. Commissioner Pritchard inquired why is the item coming before the Board if it has been addressed by the proper management. Attorney Knox responded it is a citizen’s request and the item was placed on the agenda.

Commissioner Colon stated she does not have a problem with a citizen addressing an issue that has happened in a particular department, but she has a problem mentioning any employee’s name; the Board has talked about that in the past; constituents have a right to mention things they are uncomfortable with, including the way a department is being run, etc.; and the Board needs to stick to what it has discussed in the past. Commissioner Pritchard noted this is not the proper venue; the County Manager is responsible for County employee operations and discipline; the County management has reviewed the issue; and bringing it here is not the appropriate venue. He stated the Board can do nothing regarding the employee’s behavior; its only course of action would be against the County Manager; it is not a determination whether the County Manager did or did not take a proper action; and that part has not been reviewed by the Board because it is not an issue.

Chair Higgs stated the Board needs to discuss if it is going to hear the item and then determine if it is going to allow Mr. Lorenc to proceed; under the Board’s rules it allows citizens to come forward to comment; it has a procedure that is listed called citizens requests; and the Board allows that under the First Amendment. She noted it needs to be the Board’s overriding concern in its procedures; and it allows people to make these kinds of comments. Attorney Knox stated Mr. Lorenc has a First Amendment right to present his case since the Board allows others to present their cases about other matters; whether the Board can do anything about it is a different issue; and Mr. Lorenc is entitled to present his grievances to the Board as the elected body if it allows others to do the same thing. Chair Higgs stated if the Board wanted to make some other provisions in its rules it would need to make it as a rule in regard to citizens requests; and it would need to perhaps limit the way in which it allows people to make comments, not on an agenda item but on an item of their choice. Attorney Knox noted that is correct.

Commissioner Colon stated she does not mind citizens bringing issues that they have concerns about and how a department is being run; but when names are being mentioned that is crossing the line; one can say the head of a certain department and things like that; and the Commissioners are elected officials, so if anybody wants to say anything to them that is fine. She noted the Board should not allow the good name of any employee to be put through the process; there is nothing wrong with mentioning a department, a title, and the concerns; employees have families and belong to the community; and that is the part she is uncomfortable about. She stated the Board needs to decide where to draw the line, not just for Mr. Lorenc; this is an issue that was discussed when she was Chairman of the Board; she did not allow that when she was Chairman; and the Board needs to discuss it so Mr. Lorenc is comfortable speaking on the issue and knows the boundaries.

Chair Higgs stated the rules under Section 9.2(a) read, “The County Commission declares it to be the Board policy to promote the maximum participation in County affairs by affected or interested citizens in accordance with the First Amendment protections guaranteed under the United States Constitution; however, it is also the Board policy to the fullest extent possible to protect individuals from comments that assault their character. No person who addresses the County Commission shall make slanderous, profane, or other remarks that are not protected by the First Amendment with full recognition that public figures are not subject to the same degree of protection from critical comments as are other individuals.” She noted she shares Commissioner Colon’s concern; she would like to see the Board deal with the way in which it is handling some of its public comments; but at this point, she needs a motion or some other action by the Board, or it will proceed with Mr. Lorenc’s comment.

Commissioner Pritchard stated this is not the proper venue; the County Manager is the proper venue for this to be heard; it is a personal attack; and he does not agree with this as being the forum in which it should be heard.

Motion by Commissioner Pritchard, to not hear Item VI.F.5., Citizen Request - Curt Lorenc, Re: Poor Management Practices and Misconduct by Code Enforcement Manager. Motion died for lack of a second.

Motion by Commissioner Colon, to allow citizens to speak before the Board on a particular issue or department, but not make it personal or bring the name of the person in the department.

Commissioner Pritchard stated this is not about a department, but a person; and it is a big difference.

Chair Higgs stated the Board has Policies and Mr. Lorenc is aware of them; and it hopes Mr. Lorenc will abide by those Policies in regard to his comments.

Curt Lorenc stated he is in agreement with Commissioner Colon on not mentioning names; it is an easier way of presenting the issue; but in this particular case since he is quoting things that are directly written in a couple of County documents, he is going to have to mention the person’s name; he does not wish to take them out of context; and Mr. Bowen is here to defend himself. He noted it is not like things are being said where Mr. Bowen cannot speak up and present his side of the story. He stated on May 8, 2004, the article in Florida TODAY mentioned a County employee, who is head of Code Enforcement, sending a derogatory email regarding someone running for public office; it was done on County time and from a County computer; because of this action there was a lawsuit filed against Brevard County; and Mr. Bowen received a reprimand and a three-day suspension. He noted the penalty Mr. Bowen received was minimal; over a period of years there were many inappropriate actions by Mr. Bowen; there was a Code Enforcement officer who worked for Mr. Bowen named Julielynn Ulrich; and she submitted a resignation letter, which is included in the package. Mr. Lorenc stated the things Ms. Ulrich mentioned in her resignation letter are only allegations and not proven; she said, “I was ordered by Mr. Bowen to report to his office, where I was verbally accosted, threatened, and assaulted. During the abusive behavior, Mr. Bowen struck me in the chest with his finger.” Mr. Lorenc noted this is inappropriate behavior by a head of a department; to be fair to Mr. Bowen, in the County report regarding this issue, Mr. Bowen claimed that he did not strike Ms. Ulrich with his finger; included in the package is a Management Services report; Item 2 includes where Mr. Bowen left the County facilities and went to Denny’s Restaurant where he verbally threatened several Code Enforcement officers; and it is inappropriate behavior for a department head. He stated Item 6 of the report indicates Mr. Bowen slammed the door during his confrontation with Ms. Ulrich; this is not appropriate either; he has Minutes from the City of Melbourne; and Mr. Bowen is head of Code Enforcement and also sits on the Code Enforcement Board for City of Melbourne. He noted on August 13, 2002 Mr. Bowen was before the Melbourne City Council; he was explaining to the Council that there were several options for prosecution of a particular individual--the City of Melbourne or the County could do it; he was unable to find where the Board authorized Mr. Bowen to go in that capacity and speak to the City; and he has to wonder if it is not a conflict of interest for Mr. Bowen to sit on the Code Enforcement Board and also be head of Code Enforcement for the County. Mr. Lorenc stated the resignation letter of Ms. Ulrich contains additional allegations, which are far more serious; the letter says, “I have been asked or instructed by management to falsify documents. Cases assigned to me have been altered without my knowledge or approval. This type of management is allowed according to Mr. Bowen.” Mr. Lorenc noted these are serious allegations; he has personally witnessed altered documents from Code Enforcement; he witnessed one Code Enforcement officer changing her notes and admitting to changing her notes under oath; and there has been destruction of public records. He stated there is a letter included in the package where Mr. Bowen admits to the digital picture files being destroyed; it is a department policy; these are public records; and he has a cost affidavit where Mr. Bowen is asking for 3/4ths of an hour for hearing time and the hearings only lasted approximately four minutes. He noted this is not an accurate reflection of charges for the costs; Mr. Bowen signed the affidavit and attested to it under the penalty of perjury; Mr. Bowen indicated he had no idea what was in it and what the costs were; and there were no public records to support the document. He noted what needs to be looked into is the fact that Ms. Ulrich is alleging falsification of documents; this issue was brought before the Board about a year and a half ago with permitting; it looked into the permitting issue; and it would be important to review this issue as it is something that can cause the general public a great deal of harm. Mr. Lorenc requested there be an investigation into the allegations and the altering of documents in Code Enforcement.

Janis Walters stated she is present today to bear witness to what she saw and heard for herself with regard to Code Enforcement records tampering, a false affidavit, and inappropriate behavior on the part of the Director of Code Enforcement; she has provided the Board with packets of multi-page documents numbered in the upper right corner from one to five; it was she who discovered the first of several alterations of documents in Curt Lorenc’s Code Enforcement case; and two separate public records’ requests produced two different versions of a handwritten case document that has obviously been altered with whiteout to change certain facts. She requested the Board notice in document one the difference between the two pages and the facts presented on the highlighted lines. She stated in another instance, a public records request for copies of the case file resulted in documents that had been annotated after copying so that their purpose in import became misleading; on document two those handwritten annotations are not on the documents in the case file or those introduced as exhibits in the hearing; public records are being destroyed; Code Enforcement officers use digital cameras to document violations; and the digital picture files containing the complete source information, including the time and date of the original photo image and any subsequent digital alterations of the image, are routinely destroyed after a single printout has been made and placed in the Code Enforcement file. Ms. Walters noted this practice is confirmed in document three; digital records are specifically included as public records under Article 119; without the original digital file there is no way to ascertain whether or not the printed image has been manipulated; and inquired would one destroy the negatives taken with a film camera if the photos were to be used in a legal case. She stated document four is the cost affidavit executed by Mr. Bowen in Mr. Lorenc’s case; it contains hours and pay rates per titles, not for persons by name; she accompanied Mr. Lorenc to Mr. Bowen’s office to examine the case records to discover the identities of the persons for whom those costs were claimed; and Mr. Bowen stated in front of her, Mr. Lorenc, and a staff member that there was no supporting documentation for the costs and that he trusted his staff to prepare the affidavits and to provide him with accurate information, yet he signed the affidavit swearing that the information was true to the best of his personal knowledge, not that his staff had prepared the document from sources unknown. She noted she is concerned that Mr. Bowen claims for himself the same 7 ½ hours of hearing time as the Assistant County Attorney and the Special Master, yet to her certain knowledge, as she was present for the entire hearing, Mr. Bowen was not in the hearing room for much of the time; the affidavit bears no date of execution, neither in the text of the affidavit nor in association with the notarial act; and it is a violation of Chapter 117 of the Florida Statutes. Ms. Walters stated she accompanied Mr. Lorenc to Mr. Bowen’s office on another occasion to collect copies of public records; Mr. Bowen said he was aware of Mr. Lorenc making a request for copies of documents in Mr. Bowen’s personnel file; he questioned Mr. Lorenc’s motive and challenged his right to make the request; and Mr. Bowen’s manner was decidedly hostile and intended to intimidate. She noted an Assistant County Attorney who was also present had to point out to Mr. Bowen, supposedly an experienced law enforcement officer and a longtime County employee familiar with public records laws and County policy, that Mr. Lorenc need not justify any public records request; the recent email Mr. Bowen issued concerning a candidate for Sheriff is not the first correspondence he has distributed making derogatory statements about a citizen; document five shows in 2001 that Mr. Bowen wrote and distributed a memo to Commissioner Higgs criticizing and mischaracterizing Mr. Lorenc; and noted that the memo is not initialed and was not routed through proper channels. She stated Mr. Bowen received a written reprimand citing the inappropriate tone of the memo and his mishandling of the situation; current events would indicate that things have apparently not improved much over the years; Mr. Bowen is neither temperamentally nor ethically suited to his current position as Director of Code Enforcement; and requested a FDLE investigation into the allegations, Code Enforcement practices in general and not just a review of policies which she suspects are not being followed, with particular attention to the handling of documents and digital records, and preparation of affidavits; and appropriate action be taken on any irregularities.

Walter Pine stated he has not reviewed the documents on any of this; there is no policy or procedure for filing a complaint against an employee; the Board should direct Mr. Jenkins to properly create such a policy or procedure; and this would create records and provide such that in the future it would be available. He noted in discussing the issues in regard to supervision of County employees with Mr. Jenkins, Mr. Jenkins does not supervise Mr. Bowen; the appointing authority is somebody else who is confirmed by the Board; Mr. Jenkins has a group of appointing authorities that he picks and the Board confirms; so technically, Mr. Jenkins does not supervise anybody except the appointing authority. He stated that is wrong; Mr. Jenkins is the only person the Board can hold accountable should there be a policy practice or procedure intended or unintended that needs to be corrected; it needs to be clarified; concerning the use of names, he is here before the Board and it knows he represents people; and according to the law he does not have the same level of protection from slander as the average citizen on the street because he chooses to come to the podium on behalf of residents and other people. He noted he is the Executive Director of the Center for Civil Rights Advocacy; County employees have a lower level of protection than he does; they are public servants and their names can be released; and it is important that the public be able to bring these issues to the Board, otherwise, it is never going to know anything but what the County Manager brings it in regard to supervision. Mr. Pine stated he is not saying Mr. Jenkins has done anything wrong, but the one way the public has to safeguard that is to bring it before the Board; under the Florida Constitution, the public is entitled to instruct their elected officials in all things; they have the right to use their names; and should they slander somebody, that is a private right of action and the individual may choose to take action. He noted the truth is not slander; that is why it is so difficult to say someone cannot say one thing or another; what someone may perceive as slander may in fact be the truth; and the greatest protection for slander is the truth. He stated he has stood before many commissions and accused people of some awful things, but he had the documents in his hands and he wanted the people to take him to court so he could put things on the record. He noted in order to expose wrongdoing on occasions, people have to have the ability to bring it to the Board; when it limits that, it denies the people the ability to supervise their delegation of the right to govern to the Board and its subsequent delegation of the implementation of its policies to the executive branch; it is important that it be safeguarded; and it is not just a First Amendment right, it is also a right to instruct. Mr. Pine stated the County discussed a zero tolerance policy today; he made comments about how it was going to be applied; if it is zero tolerance, it cuts both ways; and if it is going to be zero tolerance against the public, it should be zero tolerance against the employees. He noted zero tolerance means there is no tolerance; if the policy exists, it should be enforced; and if it does not, it needs to be gotten rid of.

Commissioner Pritchard inquired was the hearing conducted and discipline enacted.

Permitting and Enforcement Director Ed Washburn responded Mr. Bowen’s hearing was conducted according to personnel policies; and Mr. Bowen was given the maximum that was allowable based on those policies. Commissioner Pritchard inquired about the allegations in Ms. Ulrich’s resignation letter. Ms. Busacca responded the allegations were investigated; there was some counseling with Mr. Bowen after that; and the issues have been fully investigated.

Motion by Commissioner Pritchard, to deny request by Mr. Lorenc for an investigation into the allegations and the altering of documents in Code Enforcement.

Commissioner Scarborough stated he has a problem taking any action on the item as Commissioner Pritchard asked if the Board has any jurisdiction; it has been told it does not; and to deny it shows the Board has the ability to approve as well.

Chair Higgs stated the Board has under its procedures the obligation and Mr. Bowen has a right, if he wishes to, to make any comment.

Code Enforcement Manager Bobby Bowen stated the Code Enforcement business can get tough at times; with what the County has witnessed today it seems to be getting tougher and tougher; the employees in Code Enforcement know it is a thankless job for the most part, but somebody has to do it; and it is a love/hate relationship among the many customers, depending on which side of the fence they happen to be on. He noted Code Enforcement serves a population of about 200,000 people within 857 square miles of unincorporated area; it does it with a staff of only eight highly-trained Code Enforcement officers; he wishes he did not have to be here today; however, he would not have any respect for himself if he allowed anyone to attack his employees and did nothing about it. He stated some things are worth defending regardless of the price that might have to be paid; the County can be proud of Code Enforcement; it is not perfect; however, it continues to strive to be the best in the field. He noted the County would be most pleased to learn what Code Enforcement has accomplished as a team during the past five years; he earned his dual Masters degree in Public Administration and Human Resources Development; he is a veteran in the United States Air Force; and he has 36 years of distinguished public service, 25 years as a supervisor manager. Mr. Bowen stated he is a decorated retired police lieutenant, having received a life-saving commendation and meritorious service award, the city manager’s performance award, numerous certificates and letters of commendation throughout his law enforcement career, and recently received the County’s Pulling Together award; his annual performance reviews have been outstanding; and he has served as the County’s Code Enforcement Manager longer than any of his predecessors. He noted for the past three years he has served as a member of the Code Enforcement Board for the City of Melbourne appointed by the City Council; he has dedicated his life to public service for his country and his community; he accepted his current position on November 17, 1997; and he knew that changing the face of Code Enforcement would be no small task. Mr. Bowen stated he faced many difficult challenges along the way; however, he is happy to report today that he has the most experienced and trained staff that any manager could possibly hope for; and he is proud of each one of them. He noted in a memorandum to the Board dated May 2, 2002, Mr. Washburn wrote the following: “I filled in as Permitting and Enforcement Director for about four months in 1997 prior to Bobby Bowen being named Code Enforcement Manager. In my opinion, Mr. Bowen has been responsible for bringing Code Enforcement out of the dark ages. More cases are being worked, more revenue is being derived, and the professionalism of the officer is much higher.” Mr. Bowen stated the employees of Code Enforcement are conscientious, hard-working, professional, and honest; they are tasked with a job that is thankless and often involves neighborhood disputes with seldom either party totally satisfied; Code Enforcement is criticized for being too aggressive by some and for not being aggressive enough by others, sometimes by the same individual depending on the circumstances; and Mr. Washburn is a man of high integrity and honesty. He publicly apologized to the Board for exercising poor management and responding to a personal email that was sent to him on his County computer; stated he failed to realize at the time what impact answering the email would cause; although the email was personal in nature and only sent to a single individual, he should have used better judgment; and as a result, he received disciplinary action from his Department Director. He noted he took full responsibility for his actions and accepted his punishment; according to the article he read in Florida TODAY a couple of weeks ago, the individual who is the subject of the email has accepted the outcome of the disciplinary action that he received; and today Curt Lorenc and company come before the Board to question his management practice, and according to Mr. Lorenc, misconduct and an ongoing pattern of inappropriate behavior and disregard for County policies over the past three years. Mr. Bowen stated managers are charged with making tough decisions every day; all do not really accept every decision that is made; what may be right is not always popular and what may be popular is not always right; and Mr. Lorenc or any of these people before the Board today know nothing about his management practices, his accomplishments as a manager during the past 6 ½ years with the County, or him as a human being. He noted the Board is not the audience that Mr. Lorenc and the other nay sayers see here today; it is the cameras mounted on the Chamber walls that they play to; once again Mr. Lorenc is putting forth incorrect information and is misrepresenting factual matters to inflame the viewers; and any dedicated men and women who have chosen the career of enforcing the laws consider having to defend against the occasional false internal affairs complaint as nothing more than an unfortunate and irritating fact of life, the cost of doing business, so to speak. He stated he sees these issues that have been brought before the Board today as nothing more than a willful and wanton attempt to discredit his office and to slander the good people of Code Enforcement; this is not the first time Mr. Lorenc has done this; the last time Mr. Lorenc appeared before the Board he did not have the opportunity to respond publicly; and he hopes by appearing today he can instill some courage in those employees who have been victims of misinformation, innuendoes, and outright lies by misinformed people. Mr. Bowen noted being a public servant does not mean that the people he or she serves can say and do what they will when they do not get their way; false internal affairs complaints made in writing are liable because such writings have a tendency to injure the officer in his or her occupation; false complaints made orally are slanderous because the statements tend to injure the officer in respect to his or her office by inputting to him or her general disqualifications with respect to being a professional Code Enforcement officer; and Mr. Lorenc’s statement that allegations of document tampering and alteration of records were never investigated is simply false. He stated Mr. Lorenc is referring to his own Code violation case and an unrelated matter in which a former employee wrote a letter of resignation; he is not going to speak about that employee because she is not here to defend herself; the incident was fully investigated by County Administration and the State of Florida Unemployment Appeals Commission and is a matter of public record; and Mr. Lorenc obtained the employee’s record through a public records request and the letter was read into the record by a friend of Mr. Lorenc’s at the January 8, 2002 Board meeting. Mr. Bowen noted in a later conversation he had with Mr. Lorenc’s friend, he advised him that Mr. Lorenc asked him to read the letter into the record; what Mr. Lorenc failed to give his friend was the completed internal investigation of that entire incident involving that employee and the State of Florida’s findings even though it was given to him in the same public records request; all of this is old news; the EEO investigator exonerated him of any serious misconduct alleged by the former employee; and the State of Florida Unemployment Appeals Commission referee stated in his report that: “When considering the inconsistencies in the employee’s testimony, the referee has chosen to accept the employer’s testimony as more credible.” He stated Mr. Lorenc brought these same allegations before the Board on January 8, 2002; Ms. Busacca investigated the allegations of document tampering and alteration of records; in Ms. Busacca’s April 10, 2002 investigative report to Mr. Jenkins, she set the record straight; and Ms. Busacca ended her report with: “There is no evidence that a deliberate falsification to mislead has occurred.” He noted this also nullifies Mr. Lorenc’s claims; in other words, Code Enforcement staff did nothing wrong as alleged by Mr. Lorenc; Mr. Lorenc is attempting to further seize an opportunity to retaliate against Code Enforcement because he lost his Code Enforcement violation case before the special master for placing his household trash on his neighbor’s property and continued to do so even after he was cited by Code Enforcement. Mr. Bowen stated Mr. Lorenc attempted to discredit the Code Enforcement officer who investigated the case by going to her former employer, obtaining her personnel records, and then running a negative letter about her to one of the Commissioners; Mr. Lorenc and Ms. Walters attempted to discredit the Assistant County Attorney who prosecuted the case; Mr. Lorenc and Ms. Walters appeared before the Board and attempted to discredit both special masters who ruled against them; and they demanded the Board not renew the special masters’ contracts. He noted Mr. Lorenc and Ms. Walters attempted to discredit the Board-appointed Chairman of the Special Master Rules Committee, Mr. Broome, when the Committee presented its final report to the Board, of which Ms. Walters was appointed as a member; Ms. Walters, not completely satisfied with the Committee’s report, presented her own report to the Board; and Mr. Lorenc obtained his personnel records in an attempt to discredit him. He stated the entire matter began over household garbage; Mr. Lorenc lives in a rural setting with plenty of raccoons and other wild animals; he failed to place his garbage in front of his own home or Harris Sanitation would have picked it up; and he insisted on placing plastic bags in front of his neighbor’s home. He noted since the trash bags were not in a secure garbage can, the wild animals kept getting into it and spreading it about; Mr. Lorenc’s neighbor went to him after several years of picking up his garbage and asked Mr. Lorenc to help him out with removal of the litter; according the neighbor, Mr. Lorenc slammed the door in the neighbor’s face; and as a last resort, the neighbor called Code Enforcement. Mr. Bowen stated this was the longest special master case in the history of Brevard County; all the hearings combined lasted for more than 13 hours; the transcript of that hearing measures nearly three inches thick; and the solution was simple--all Mr. Lorenc had to do was place his trash in front of his own home as required by the Code. He noted it has been more than two years since the special master ruled against Mr. Lorenc in the garbage case; Mr. Lorenc still has not paid the County’s enforcement costs to repay only a portion of what the taxpayers had to expend to entertain his frivolous case; since the special master hearing was held, Mr. Lorenc has filed numerous complaints against the neighbor who testified against him in that case; and his career, the County’s reputation, and the integrity of his Department are on trial here today as if it were in a court of law. He stated if the Board accepts Mr. Lorenc’s misrepresentation of the facts and hyperbole, it will be blinded from the truth; if it accepts the results of the investigations that are a matter of public record, decisions it makes will be based on facts from competent authority; and Proverbs 18:2 reads, “A fool finds no pleasure in understanding the delights in airing his own opinions.”

Chair Higgs stated if there is no motion on behalf of the Board, it will move on to the next item.

The Board took no formal action on request by Curt Lorenc concerning poor management practices and misconduct by the Code Enforcement Manager.

CITIZEN REQUEST - GLEN J. KEMP, RE: SARNO LANDFILL SITE

Glen Kemp provided information to the Board; stated Standard 3 of the Uniform Standards of Professional Appraisal Practice addresses appraisal review, development, and reporting; it is the requirements for doing appraisal reviews; the appraisal review was not properly done; and the email from the Appraisal Foundation indicates that. He noted the Appraisal Foundation promulgates the rule by federal authority; it is enforced on the State level; the Uniform Standards of Professional Appraisal Practice derives from Federal Regulation of the Comptroller of Currency; and Standard Rule 3-1 on the first page says, “In developing an appraisal review, the review must identify the client’s intended use of the opinions and conclusions, and the purpose of the assignment.” He stated the letter from Richard Klusza, the Review Appraiser, was provided as a result of the FDLE investigation; it is important to know who is going to rely on the appraisal review; one has to know who they are communicating to; and Item B includes a whole list of things. He noted Item C identifies the scope of work to be performed; it is important when talking about the scope of the appraisal; it is basically the parameters within which the appraisal reviews intended to apply; and a key item is that Mr. Klusza was instructed by FDLE to address appraisal ethics and standards, according to the FDLE investigative report. Mr. Kemp stated in Mr. Klusza’s reply letter he specifically states that he was instructed just the opposite, to not address professional standards and ethics; he indicated the source of that instruction was the attorney; in contacting the State Attorney’s Office, he found out from the intake investigator that such Office does not interfere with FDLE investigations; and the FDLE investigator confirmed that he was the only source of the instructions. He noted the investigator specifically instructed the review appraiser to address appraisal standards and ethics; and he deliberately chose otherwise, and by doing so exonerated the two appraisers. Mr. Kemp requested the Board ask that a proper appraisal review be done; stated he is not sure how it will go about doing that as FDLE is not now presently involved; he is concerned about the proper selection of that person because there is evidence where a County employee was receiving a fax from one of the two appraisers who were being investigated by the FDLE; and the fax also copied the developer saying, “watch out, Glen Kemp’s going to be addressing the County Commission, watch what he says.” He inquired why would any County employee have that level of involvement with these parties and can the County employees be trusted to do the selection process; stated he is not going to name names; the FDLE investigator made it clear that he wanted to select the review appraiser and did not want the County to have input so a ringer would not be selected, there would be no attempt to manipulate the result, and the County would end up with a review appraiser that was beholden to either the developer or the two appraisers; and the FDLE investigator made every effort to do that. He noted the investigator contacted Department of Business and Professional Regulation in Tallahassee; it recommended a suitably qualified review appraiser who has testimony experience and landfill experience; it would be difficult to find an appropriate review appraiser should the Board decide to do so; and expressed concern if the review appraiser did not do his job and did not include a certification, he violated standards and the review appraisal must follow the standards. Mr. Kemp stated there is no departure provision for that; the only way the review appraiser is not required to follow the standards is with a judicial exception where such appraiser has to be specifically instructed not to follow the standards; and inquired why would he sign something as a State certified real estate appraiser if he is choosing not to follow the standards, why do the review in the first place, and why masquerade it as a review when it was nothing but his personal opinion promulgated as a professional review. He noted he challenges such individual to tell him he is wrong when he has email from the authority; there is no other authority; the individual is not qualified to address criminality; and he was qualified to address the standards and ethics, but chose not to do so. He stated this person puts words into the FDLE investigator’s mouth by saying he was told to specifically avoid addressing the standards of the ethics; somebody is lying and this is a criminal investigation; and requested the Board consider contacting FDLE, asking it to reopen the investigation, and including the review appraiser. He noted he cannot understand why the person would take it upon himself to apparently deliberately exonerate the two appraisers and do the opposite of what he was asked to do; instead of providing the County with a review that addresses standards and ethics, he provided his personal opinion as to whether criminality occurred; he based that on the notion that the two appraisers received inadequate pay to do anything wrong; and that is a naïve and ridiculous statement. Mr. Kemp stated it shows the individual was not qualified to address criminality; and requested the Board look into the issue on behalf of the County that is paying for the landfill acquisition, and the County citizens.

Commissioner Colon expressed appreciation to Mr. Kemp for being involved with the issue; and requested Mr. Kemp reiterate what he is requesting.

Mr. Kemp stated the most important thing he is asking for is a new review appraisal; the problem is the selection process and doing it in a manner to insure it is not tainted and the person who is selected is somebody truly qualified; his second request is for the Board to consider the possibility that the review appraiser engaged in a criminal act; and the act is obstruction of justice. He noted when one deliberately lies in a criminal investigation, it is obstruction of justice; he wondered about it so he contacted the State Attorney’s Office to confirm it; and it would not hurt to have the State Attorney’s Office review the documentation to see if it thinks that dishonesty occurred.

Commissioner Colon inquired is it appropriate for the Board to request a State review; and stated it does not have anything to lose and would have peace of mind knowing it has this new evidence presented to it.

County Attorney Scott Knox responded the Board had this looked into by the FDLE; the State Attorney also looked at it; nobody has come back with any issues as far as criminality is concerned; so he does not know that going to either one of those agencies is going to get the Board any more satisfaction. Commissioner Colon inquired would it be appropriate to say that at that particular time the Board did not know that all these folks were friends and buddies. Attorney Knox responded he did not hear that they are friends and buddies, but the allegation he heard is that the review appraiser lied; whether that is true or not he does not know; if the Board wants to turn it over to the State Attorney and have it investigated, it can do that; and the real issue Mr. Kemp is trying to raise is that the appraisers did not do their job properly. He noted if that is Mr. Kemp’s concern, there is an appraisal board set up in the State of Florida that he can make his complaint to. Commissioner Colon inquired why should Mr. Kemp make his complaint and is it the Board’s job to do it; with Attorney Knox responding the Board can do it too if it desires.

Commissioner Scarborough stated the Board can write a letter saying it has heard allegations that there were some improprieties at the time the FDLE made its investigation that it may not be aware of, and it may want to consider reopening the investigation if it finds any merits.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to authorize the Chair to send a letter to Florida Department of Law Enforcement (FDLE) advising that the Board has heard allegations that there were some improprieties at the time FDLE made its investigation that it may not be aware of and may want to consider reopening the Sarno Landfill site issue if it finds any merits.

Chair Higgs inquired can Mr. Kemp not do the same thing; with Commissioner Scarborough responding the Board asked FDLE to make the investigation and it did it at the Board’s request. Commissioner Scarborough noted it is not inappropriate on the Board’s part since it initiated it to say it received more information; FDLE did the investigation; it is an independent State agency; and the County could take information provided here, including a transcript if it desires. Chair Higgs inquired would the letter be sent to Agent O’Conner; with Attorney Knox responding it could be sent to whoever the head of the department is.

Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

Chair Higgs stated at that point the Board would see if it needs a third appraisal, and inquired should it request another appraisal; stated she is uncomfortable about that part; and inquired should the Board wait until it gets feedback. Commissioner Scarborough noted professional responsibility is not always the simplest thing and who has what responsibility to whom; and requested the County Attorney report back to the Board on options concerning appraisal responsibilities.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to direct the County Attorney to provide a report to the Board on its options concerning appraisal responsibilities, who has what responsibility to whom, and the levels of responsibility.

Commissioner Carlson inquired is the motion in addition to or in replacement of the previous motion. Commissioner Colon responded this is the second motion. Commissioner Scarborough noted the first motion includes any information that FDLE did not know that bears on its findings; the second motion is the appraisal responsibilities; it sometimes can get very complex as to the professional ethics; and it may not be the simplest thing to analyze.

Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

DISCUSSION, RE: ALLOWING BAR ASSOCIATION TO USE VACATED THIRD FLOOR
ALCOVE OFFICE

Commissioner Scarborough stated he spoke to Sam Stanton yesterday; Mr. Stanton indicated the situation is extremely complex and he would like to get the group together to find out who is moving where and how; and there are a lot of different users going in different directions.

Thelma Roper stated she would like to know if the alcove office is going to be used for the Bar Association; she is not sure if Legal Aid is associated with the Bar Association; providing Legal Aid with more space somewhere is a much better use of the facility; and if the Bar Association was going to be doing some kind of program that would benefit others who cannot afford an attorney, that would be a good use there. She noted County office space should be used more to benefit citizens who cannot afford it than by an association.

Bea Polk stated there is no backup information on the item; and inquired does the Bar Association not make enough money to rent its own space. She noted the County always has to build more government space; if the Bar Association has gone broke, then everyone has gone broke; and inquired how many feet the Association is renting and what it would be paying. She stated the Bar Association can afford to pay the rent; and inquired who is next in line for free office space. She noted if the Association cannot afford office space, then Brevard County is in bad shape; she understands things are getting bad; and inquired does the County have room for all its employees or does it have so much space it does not need to build any more facilities.

County Manager Tom Jenkins responded the item did not come from his office and came from the Clerk’s Office; and the space the Clerk was requesting be given to the Bar Association is for two people.

Ms. Polk inquired does the County need its office space; with Mr. Jenkins responding the reason he did not put the item on the Agenda is because he could not personally support it.

The Board reached consensus to direct the Facilities Director to have further discussions with the appropriate groups to find out who is moving where and how in regard to allowing the Bar Association to use the vacated third floor alcove office in the Harry T. and Harriette V. Moore Justice Center; take into consideration the comments made today; and report back to the Board.

STAFF DIRECTION, RE: ANNEXATIONS, LAND USE AMENDMENTS, AND REZONINGS
IN CITIES OF PALM BAY AND TITUSVILLE

Glenda Busick stated this item includes Palm Bay, Titusville, and Rockledge; Rockledge is wanting to annex some property, but the document did not say how much; the agenda report indicates the County filed its objections with DCA and is awaiting DCA review and report back to the City; and Rockledge is violating its own Comprehensive Plan by increasing density. She noted the City has schools over 100% capacity; and inquired why bother having a Comprehensive Plan. She noted the City violates such Plan and nobody does anything about it; she does not understand it; Titusville is the same deal; and there is inconsistency with Titusville’s Comprehensive Plan. She stated the City’s rezonings are inconsistent with its Plan; whoever thought to have planning staff plot out the legal descriptions for City of Palm Bay did great; staff found out Palm Bay’s annexation does not touch and is one mile away; and it is unbelievable. She noted it is bizarre that Palm Bay is trying to annex something that is not contiguous; the agenda report indicates it is totally against the law and the property has to be contiguous; and the Board is going to be deciding what to do about the cities. Ms. Busick stated earlier Commissioner Scarborough talked about joint planning agreements; it appears comprehensive plans do not mean anything; the cities get their annexations; and she does not understand it. She noted Palm Bay does not have a joint planning agreement and does not want one; Titusville had a problem and went away from the table because it had a problem with taking over roads; it wanted the County to bring rural roads to the status of urban roads; so joint planning agreements and comprehensive plans are not working for some of the big cities.

Chair Higgs requested the County Attorney summarize who reviews cities and counties’ comprehensive plans, and how they are enforced, either by the State or legal methods.

County Attorney Scott Knox responded the Board some time ago told the County Attorney’s office and planning staff to get together and file objections to the Comprehensive Plan amendments that were proposed by Palm Bay, Titusville, and Rockledge because of the school capacity issue and transportation issues with the City of Titusville; it was done and the amendments were passed by the Cities and sent to DCA; the County’s objections are recorded with the DCA; and DCA will make a determination as to whether the amendments are in compliance or non-compliance with Chapter 163, Florida Statutes. He advised if there is a determination made that the amendments are not in compliance, there will be a Chapter 120-57 proceeding initiated, which is an administrative proceeding, held before a hearing officer to determine whether that is accurate or not; if there is a determination they are in compliance, the County can petition for a 120-57 hearing; that determination has not been made yet by DCA on the Titusville, Palm Bay, or Rockledge annexations; and the annexations have taken place in Titusville and conform to State law as best staff can tell. Attorney Knox stated the annexation staff was concerned that the annexation in Palm Bay has taken place and it does not comport with the law in the sense it is a mile away from the City limits because of the away it described the property in the Ordinance; so what staff is asking for today is further guidance from the Board on what it wants to do about all of these problems that are pending on annexation issues; staff has direction to go forward on the administrative hearings from prior actions of the Board; and the issues involving Palm Bay at this point will require a filing of a lawsuit. He noted concerning the issue on the annexation itself, in the case of Titusville, there is an inconsistency of the zoning with its Comprehensive Plan as well; it would also require a filing of a lawsuit; in the case of Palm Bay, the County has gone beyond the 30-day annexation challenge time frame; however, the City’s Ordinance was defective because of the way it was noticed; and there is a challenge available to the County on that basis. He noted the 30-day time limit may only apply to involuntary annexations, not voluntary annexations; so the County can challenge Palm Bay’s Ordinance; in the case of Titusville, there is a 30-day time limit to file a challenge to the rezoning as being inconsistent with the Comprehensive Plan; and that time frame runs out on June 11, 2004, so he needs guidance on what the Board wants to do.

Commissioner Scarborough requested Attorney Knox distinguish between what the County already has done in sending its comments to DCA and what this is talking about with legal proceedings. Attorney Knox advised there are three different levels at which one can get involved in terms of the challenges that are available; the first is the annexation level; it requires an action to file a suit; the second is the rezoning level; and if there is inconsistency with the comprehensive plan, it also requires filing of a suit. He stated the third level is challenging the comprehensive plan amendments themselves; it takes the form of an administrative proceeding where one files objections to DCA; and it results in an administrative hearing.

Don Page stated the City of Titusville adopted an Ordinance to allow cluster zoning in RE zoning; when it sent the request to DCA, its Comprehensive Plan land use carried for 15 units per acre for residential; it came back unsatisfactory; so the City changed it to three levels, low, medium, and high; and low is five units per acre, medium is 10 units per acre, and high is 15 units per acre. He noted in its Comprehensive Plan the land use included overlaying an area that indicated low density, medium density, etc.; and expressed concern of the Holloway property being annexed. He stated the City put low density on such property, which is five units per acre; the RE zoning is one unit per acre in a cluster zoning concept; the City can go forward with this in its Comprehensive Plan and present it as what it is going to do in its Plan for that particular zoning as an RE option; and after all the smoke clears and everything is settled, there is no reason why the developer cannot request a zoning change to R1B because the land use is five units per acre, according to the Comprehensive Plan. Mr. Page noted the City Council could consider changing the rezoning back to R1B because of the Plan change; he and the citizens in the area prefer the City have a lower density level of two units per acre; it would be compatible with what the County has presently in the area; and the City’s Comprehensive Plan has five units per acre on the County’s two units per acre area at this time.

Charles Moehle, President of Modern, Inc., stated he is opposed to the addition of this item on the Agenda at the last minute; Items VI.F.7. through VI.F.13. were only available after 4:30 p.m. yesterday afternoon; Chair Higgs was disturbed about an earlier procedure; and as he recalls, it was an accepted procedure several years ago that the latest time the agenda could be changed was Thursday before the meeting. He noted it has been eroded over the years and is now getting to be intolerable; and suggested for items that have to do with the Comprehensive Plan, including land use amendments in the cities, the public is due notice for them. He stated the Board may be taking illegal action by doing this; and suggested the County make the procedure friendly so the public knows what is going on and can respond to the items. He noted the only people who know what is going on about the items are those who are interested in them and generating them on their side; those people are here; but nobody else knows about it. He stated the Florida Statutes and what people abide by now is home rule, which is the best government; the closer the people are to their government the better it is and the better results; the City of Titusville requires an annexation if someone wants water and sewer; so that takes the Holloway piece. He noted the City is abiding by the law and has to annex; by State Statute, it has to do so if it is requested and next to the property; the City has made sure it has held public meetings; and it has delayed the process to this annexation for six months to see that it had public hearings and the public was involved in planning sessions in which a facilitator was hired from University of Central Florida. Mr. Moehle stated what the cities are doing is totally appropriate; they help with solving the concurrency problems; such problems are the main focal point of the Growth Management Act and main concern of DCA; it is not appropriate when the County is not available and cannot provide these services; and the people can annex into a city that will provide them services. He noted the County has a proper procedure in place right now and should follow it; it should not try to encumber the rights of home rule and the cities’ rights to annex property, especially when requested by the landowner; it is out of order and not proper; and it is not good for the County or cities. He stated he does not agree with some statements made today; the joint planning agreements are good and should be pursued; the only stumbling block is the fact that the cities do not want to take the streets that the County has not maintained for years and used the tax money somewhere else; and the cities want the streets brought up to standards, which is reasonable. He noted he does not believe Mr. Page is correct in what he stated about the position, but there is nobody to talk about it because they do not know about it.

*Commissioner Colon’s absence was noted at this time.

Lisa Kolar requested the Board proceed with the challenge to Palm Bay’s annexation of 1,600 acres known as the Capanos property; stated citizens were alerted by a newspaper article and the annexation was brought to the Board’s attention on April 13, 2004; at that time, the citizens thought the property was not contiguous or compact; and according to published maps, it was only contiguous at one point, which does not satisfy Florida Statutes. She noted County staff was asked to do some further research and found that the parcel is actually over one mile away from city limits; maps published with notices to the public did not reflect this; the City of Palm Bay also did not indicate what type of land use would be designated for this property; and a Comprehensive Plan amendment has not been proposed. She stated with I-95 running down the middle of the parcel, it is ripe for heavy commercial development in a predominately rural area; this is of grave concern to citizens living in the surrounding area; the Board needs to uphold the laws that govern annexation in order to insure that affected persons are made aware of actions like this; and it is unfortunate that these challenges are required. Ms. Kolar noted under the current procedures that cities follow for annexations, this is the only recourse the County and citizens have; the citizens look to the Board to protect the interests of the County and its residents by taking action; and requested the Board vote to take either option 1 or option 2. She stated if filing suit first, option 1, is the most expedient and certain method the Board can take to insure the law is followed, it should do so; and citizens stand ready to help the County to proceed with this challenge in any way. She noted she wants to be sure that what the Board is going to decide today has nothing to do with the other parcel, which is the 1,200-acre Wheeler farm parcel. Chair Higgs stated the Wheeler parcel is not on this Agenda. Attorney Knox noted that is correct.

Laura Ward stated the Board is deciding whether to take an action to protect the integrity of its own Comprehensive Plan; there are annexation problems all over the County; residents are being impacted everywhere by the rapid annexation that is taking place in some of the main parts of the County; and when an annexation takes place it does not take place in a vacuum. She noted developers like to talk about how they are annexing their property voluntarily, but their property impacts hundreds of other people who live around that when they are changing land uses and increasing densities; when the rules are not followed and when there are questionable annexations, then the residents’ only recourse is to come to the County for protection; that is what was done on several of these; the residents who live in these areas appreciate the Board’s commitment to try to make sure when things are not proper that it acts; and they hope the Board will take some action.

Janis Walters stated Ms. Kolar covered almost everything she was going to say; there is no proposed land use on the Capanos property; there is also no joint planning agreement between the County and Palm Bay for abutting properties; and it has been an ongoing concern. She requested the Board pursue all avenues to challenge the improper annexation of the Capanos property.

Commissioner Scarborough stated when he spoke to the County Attorney on the issue, the reason the County moved rapidly is because that is what the law requires; he knows it sounds terrible and it is terrible for governments to be suing governments; the Board represents not only the people in the unincorporated area, but it is elected by the people in the cities; and it does not have the ability to be arbitrarily capricious in this because it is all set and defined. He noted clearly defined is where the County has comments and where it does not; the question is does the Board walk away from its responsibility; its responsibility is to represent the entire community; and until there are joint participation agreements in effect where the County can start talking to cities in an early timely manner, it is compelled to use those rights, which are very limited. He stated the cities have an absolute right to annex, but the issue is what about everybody else around there; one will find as he or she moves from the more urban incorporated areas to the more rural unincorporated areas these conflicts inherent in the development process; and the County needs to make sure it is done wisely and soundly.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Option 2, file suit first, then mediate relating to annexations, land use amendments, and rezonings in the City of Palm Bay; and Option 1, file suit, then initiate mediation under Chapter 164, Florida Statutes concerning annexations, land use amendments, and rezonings in the City of Titusville. Motion carried and ordered unanimously.

RESCIND BOARD ACTION, GRANT FINAL ENGINEERING APPROVAL, AND PERMISSION
TO INITIATE REQUEST TO MELBOURNE-TILLMAN WATER CONTROL DISTRICT
FOR ADDITIONAL RIGHT-OF-WAY, RE: MADISON AVENUE IMPROVEMENTS

Hugh Evans, Jr., representing Manchester Lakes Development, stated the issue was brought before the Board in the past, but was denied; he is bringing it back for reconsideration; there is more detail and explanation so the Board can understand the bigger picture; and his Company has been working for about one year on the road network in the City of West Melbourne, the County, and Palm Bay. He noted the features are going to be primarily a construction of Madison Avenue to the east and west, making connection between existing Hollywood Boulevard and Dairy Road; it is going to be done under two different development agreements with the City of West Melbourne; and depicted the area on a map. He stated Manchester Lakes Development is in the process of being permitted through the City of West Melbourne; the traffic, which was Riviera Street, was designed to continue down to Palm Bay Road; Madison Avenue currently has a buildable right-of-way and needs an additional 20 feet from Melbourne-Tillman Water Control District in order to gain enough right-of-way way to construct the road; and requested permission to initiate request to the District for such right-of-way for construction of Madison Avenue. Mr. Evans noted there is a FPL transmission line on the north side of the right-of-way; he is proposing to construct Riviera Street to the intersection and out to Dairy Road, with all improvements associated with Dairy Road, including turn lanes, connection on Eber Boulevard, etc.; the group that is developing one parcel has submitted a driveway application as of this morning for continuation of Madison Avenue; and it is going to extend straight along the FPL easement. He stated his Company will pay for construction of Madison Avenue; a portion of the property is in the County currently; the impression is it may be annexed to the City of West Melbourne in the future; and he will come back to the Board, once he gets the Melbourne-Tillman Water Control District right-of-way, with an agreement indicating there will be no cost to the County. He noted either the City of Melbourne, West Melbourne, or some other method will fund the maintenance of Madison Avenue; and reiterated there will be no long- term cost to the County. He stated there is no downside risk to this; it is a positive issue; and his Company has been working with the County’s transportation staff for about one year trying to accomplish this.

Chair Higgs noted the 20 feet is the width of the Melbourne-Tillman right-of-way needed; and inquired how long is it. Mr. Evans responded approximately 600 feet; right now the right-of-way is 40 feet; it goes from 60 feet to 40 feet; it is near the intersection of where Riviera Street will intersect Madison Avenue; and Melbourne-Tillman will not act on it unless the County wants the road. Chair Higgs stated her understanding is that somebody had submitted on the western parcel. Transportation Engineering Director John Denninghoff noted that is correct; staff received the application plans this morning, but has not reviewed them yet; and it would connect the western half of Madison Avenue to Hollywood Boulevard. Chair Higgs inquired does it connect to Riviera Street; with Mr. Denninghoff responding yes. Chair Higgs stated it is up against the FPL easement; and inquired does that mean it is in the FPL easement; with Mr. Denninghoff responding no. Mr. Denninghoff stated it would be parallel to and south of the FPL easement. Chair Higgs inquired if staff has talked to Melbourne-Tillman; with Mr. Denninghoff responding he spoke with Al Pennell and the District’s position has not changed from what was indicated in the letter, which is attached to the agenda item. Mr. Denninghoff stated the District wishes the County or a city would come forward and express an interest in having the right-of-way as part of the Madison Avenue improvements. Chair Higgs stated she did not support the item when it was before the Board last week; she met with Mr. Evans and the development that would be served by Madison Avenue is all in West Melbourne at this point; the extension of Riviera Street would be in some part of the County, but the part Mr. Evans needs, which would be the 600 feet by 20 feet from Melbourne-Tillman, is serving that development in West Melbourne; and she is concerned about the County continuing to maintain Madison Avenue, although Mr. Evans assures her someone will take care of it and he has a method of doing it. She noted the County does not have a written commitment; she does not understand or support at this point, until somebody shows her that the network is going to be in place, and that it is proper for the County to go forward to get that portion of the right-of-way from Melbourne-Tillman in order to serve the development; staff has worked on the intersecting roads; and now there is a proposal, which is different than what is shown on the map. Chair Higgs stated she does not see the County going forward to secure that, but if West Melbourne wants to do the developments, then it would be its proper role.

Commissioner Carlson stated the whole issue with the parcel in question was that they could not get access to Hollywood Boulevard due to traffic issues. Mr. Denninghoff noted that is correct; the City of West Melbourne was concerned about a lot of traffic loading from the project onto Hollywood Boulevard; the City requested the developer provide an alternate plan to deal with such concern; the idea of Madison Avenue was an outcropping of that; and the property owner in the area had a desire to try to make sure that traffic congestion was not a serious issue. He stated one of the concepts that came out of the concerns was to develop a roadway network connecting Eber Boulevard down to Palm Bay Road, and from Dairy Road to Hollywood Boulevard to allow for much shorter trips to make those trips on roads other than Hollywood Boulevard and Palm Bay Road; and it would relieve congestion on those roads, which is already a severe condition. Commissioner Carlson noted with the idea that Madison Avenue goes into place, then the other piece, which is a connection to Hollywood Boulevard, is going to create the traffic pattern staff is talking about; and inquired would it come to pass if the other piece did not because it would be circumventing the road capacity issue for the original parcel.

Transportation Planning Director Bob Kamm stated staff has been working for almost two years to develop a collector level road system in the general area between Eber Boulevard and Palm Bay Road, and Dairy and Minton Roads; most of the property is owned by one group, the Norpak Corporation; it has made a condition of sale to groups, such as Forte Macauley, and a requirement to develop these other roadway facilities that the County and West Melbourne have designated; and the arterial roads on the map, which include Eber and Hollywood Boulevards and Dairy and Palm Bay Roads, are all County roads. He noted the traffic impact is on County facilities, even though the development is regulated and controlled largely by City of West Melbourne; this is a case where there has been a high degree of cooperation between the property owner, developers, County, and the cities involved, to develop alternative ways for traffic from these developments to move around without loading all of it exclusively on County roadways; the alignment will shift a little bit as more refined engineering occurs; and staff has discussed the feasibility of extending Madison Avenue, the east/west roadway, west across I-95 to Minton Road to provide another parallel east/west roadway between Eber Boulevard and Palm Bay Road. Mr. Kamm stated there has been a lot of background planning and thought going on; and what the Board is seeing is a little piece of something that has been larger.

Chair Higgs noted this was not part of the South Brevard Transportation Study; it has never been to the MPO; and the Board has never talked about this system alteration. Mr. Kamm stated the City of West Melbourne City Council has seen this item and heard it; most of the property is in the City; and its desire is to achieve this. Chair Higgs noted then the City needs to do it. Mr. Kamm stated in a way it is; and it is acting according to the plan that has been developed. Chair Higgs noted the Board has never seen this. Mr. Kamm stated the part that is in the County is the easternmost piece of Madison Avenue and the southernmost piece of Riviera Street; and the rest of it is within the City of West Melbourne. Commissioner Carlson inquired if the maintenance of the piece of property will be provided from some other source, and if such piece is not okay, will the western piece go forward; noted she understands where the City is coming from, trying to get a traffic issue; and if the piece on the east goes through, it is no-brainer to connect Hollywood Boulevard to Dairy Road to get the traffic flow. Mr. Kamm stated the property owner has numerous conditions placed on the developer; he is not certain what all those conditions are; and he is not sure he can give the Board a definitive answer if the Madison Avenue piece does not go through on the east, what happens to Madison Avenue on the west. Commissioner Carlson noted the City is going to be doing the western piece. Mr. Kamm stated the developer of the property south of Mr. Evans will be building the western piece of Madison Avenue; and these are all privately funded.

Commissioner Pritchard stated the eastern piece would also be privately funded; and the County would not be liable for maintenance. Chair Higgs noted yes it would. Mr. Kamm stated initially yes, but Mr. Evans today is proposing an alternative way to address the maintenance. Commissioner Pritchard advised he is reading the agenda item, which reads: “With the commitment by the developer to identify a maintenance entity other than the County through a negotiated agreement, which will come back to the Board for approval.” Mr. Kamm stated it is new this time, which was not in last week’s agenda item. Commissioner Pritchard stated when the item came up last time, the problem he had was because of the road issue; the County is losing a tax base and becoming responsible for roads; if the situation has changed, then all Mr. Evans is asking for is the Board to rescind an action and grant final engineering approval, which he voted against, because of the road situation; so that has changed the identity of this project by now taking the road out of County funding maintenance requirements. Chair Higgs stated the County has no formal agreement on the maintenance; other than that 600 feet, which will serve the development that Mr. Evans is representing, the County has no formal agreement in regard to the property owners; and it has no formal approval on the extension of Madison Avenue fully to the west, nor does it have anything on Riviera Street to the south. Commissioner Scarborough stated he agrees with Chair Higgs; the issue may be premature; he does not know who will do the maintenance; and the County has run into horrible problems. He noted the County needs to know what it is doing before it does it; he does not want to do anything until it has something more definitive; and he sees a potential if a municipality is going to step up. Chair Higgs stated if all these things come together with the other developments, then it may make sense for the County to do something; but at this point, it has no agreement from anybody to maintain it and it has no commitment, other than orange lines, to go forward with this grand design; maybe by July 2004, when the Board is back in session, it would have those things and it would make sense to be involved in a major collector project; but at this point, it is not there for her. Commissioner Pritchard stated the issue has not reached the point where he is comfortable with it either because the County has not identified who is going to be providing the maintenance entity; and he agrees the County is moving in the right direction, but it has not quite gotten there yet.

Chair Higgs inquired is there a motion. Commissioner Scarborough responded the comments are heard by Mr. Evans; and he knows the Board is responsive if he can bring forward more information.

The Board acknowledged request by Hugh Evans to rescind the Board’s action of May 18, 2004, grant final engineering approval for Madison Avenue improvements, and authorize staff to initiate request to Melbourne-Tillman Water Control District for additional right-of-way; but took no formal action on Mr. Evans’ request.

CITIZEN REQUEST - J. J. PARRISH III, RE: BINDING DEVELOPMENT PLAN FOR
GROVES AND SANDY PARK

J. J. Parrish III stated this matter came before the Board on May 6, 2004; the binding development plan was provided and reviewed concurrently with the zoning application; a number of changes were requested by County staff and agreed to by the developer at that meeting; and the Board unanimously approved the zoning and binding development plan, contingent on the changes being made that were agreed to. He advised the changes were made to the binding development plan and have been resubmitted; staff has reviewed the changes and found them in conformity with the Board’s recommendations at the May 6, 2004 meeting; Attorney Hank Evans and Rodney Honeycutt worked closely with staff in developing the binding development plan; and to his knowledge, they have met all the requirements and respectfully request the Board approve the content of the plan before it, and authorize the Chair to sign when the proper parties have signed on behalf of the developer. Mr. Parrish stated the process started a long time ago; at the May 6, 2004 meeting there was thorough discussion and presentation by Mr. Evans; and he was at the meeting and under the belief everything was finished with the zoning request and binding development plan, only to find it called for a final action on behalf of the Board of the plan.

Chair Higgs inquired if the County Attorney has reviewed the binding development plan; with Attorney Scott Knox responding yes, but there is some issue concerning whether it is properly titled in the proper parties’ names. Attorney Knox stated if the Board approves the binding development plan subject to his Office’s approval of it, it will be okay.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to acknowledge request by J. J. Parrish III for approval of a Binding Development Plan (BDP) for Groves and Sandy Park; and approve the BDP, subject to review by the County Attorney. Motion carried and ordered unanimously. (See page for Binding Development Plan Agreement.)

APPROVE DETERMINATION, RE: JURY TRIAL IN MARCUM V. BREVARD COUNTY CASE

The Board took no formal action regarding a jury trial in the Terri Marcum, as Personal Representative of the Estates of Kimberly Ann Marcum and Oliver J. Marcum v. Brevard County case.

CONSIDER SPECIAL MASTER’S RECOMMENDATION, RE: REDUCTION OF FINES AND
RELEASE OF CODE ENFORCEMENT LIENS FOR BARRY COHEN (CONTINUED)

Attorney Karl Bohne requested reconsideration of the item; stated he has additional information that may assist the Board in making a determination on what to do with Mr. Cohen’s situation; Mr. Cohen purchased the property for $240,000; and the current assessed value is $200,000. He noted Mr. Cohen has a mortgage of $221,000 that will balloon June 1, 2004; the mortgage rate is 17%; Mr. Cohen is trying to refinance; and unfortunately, the $60,000 lien and the debt to equity ratio basically kills his ability to refinance. He stated Mr. Cohen can pull out about $15,000 in equity; he has the authority to offer the Board $15,000 to satisfy the Code Board lien; it will enable Mr. Cohen to refinance and get a severely reduced rate; and Mr. Cohen can pull some equity out and try to make a go at this motel.

Chair Higgs inquired what happens if Mr. Cohen is not able to refinance; with Attorney Bohne responding the property will go through foreclosure. Attorney Bohne stated Mr. Cohen has a private lender right now who has a 17% mortgage who would probably like to see nothing more than to take back that property; and if it forecloses, at least the lien pertaining to the property will be wiped out by the first mortgage holder.

Commissioner Pritchard stated the Board discussed the issue this morning and realizes the personal aspect of it; and suggested the Board accept the $15,000. He noted there is no way Mr. Cohen could ever pay $60,900; Attorney Bohne has come back with a legitimate offer for $15,000; and the Board should accept it and let Mr. Cohen get on with his life. Chair Higgs inquired when would it be payable by. Attorney Bohne requested 60 days. Commissioner Pritchard inquired when does Mr. Cohen have to refinance; with Attorney Bohne responding June 1, 2004. Attorney Bohne stated he is trying to build in a cushion in case something happens; and it will have to be paid as part of any title insurance commitment. Commissioner Pritchard inquired what about 30 days; with Attorney Bohne responding he will take it.

Motion by Commissioner Pritchard, to consider the Special Master’s recommendation to reduce the accrued fines/liens for Cases 00-0854, 00-0942, and 00-2349 for Barry Cohen in the amount of $60,900; and approve reduction of fines and release of Code Enforcement liens in the amount of $15,000 to be paid in 30 days.

Commissioner Scarborough stated he does not have a good feeling.

County Manager Tom Jenkins stated in the foreclosure all of it would be lost; and the lien would have no standing. Attorney Knox noted that is correct, unless the County is prior in time. Commissioner Carlson stated there are no other liens that can be had on other properties Mr. Cohen may own.

Assistant County Attorney Terri Jones stated Mr. Cohen has his homestead and a home that is in Trust; the lien does not go on the property that is in Trust; and the lien does not affect a homestead; so this is it.

Chair Higgs stated she does not have a good feeling, but it is because it is nine hours after the Board started its meeting this morning; and she will second the motion.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Scarborough voted nay.

PUBLIC COMMENT - PENNY FARRAR, RE: TRUTH IN PROPERTY TAX ASSESSMENTS

Penny Farrar stated she presented before the Charter Review Commission (CRC) a proposal called Truth in Property Tax Assessments; the proposal would have required that each year a comparison of the current and prior year’s just value removed from the assessment roll and broken down into categories be published in a local newspaper; there is already much attention given to the relationship of the taxing authorities and the millage rate, like the TRIM notice; but very little emphasis is placed on the relationship of the Property Appraiser’s responsibilities in the millage rate. She noted the current Property Appraiser has said that he has nothing to do with property taxes nor does he believe that he has anything to do with the millage rate, when this is simply not true; the taxpayers of Brevard County deserve the real truth about factors that affect the amount of property taxes they must pay, not just the amount of new construction added to the roll as the Property Appraiser proposes, but the flip side of that, which is value removed from the tax roll, which is a greater amount; John Sternagel, who is a member of the CRC and an employee of the Property Appraiser’s Office, said that this information is available on the DOR website; but in the same breath also said that it would be costly to implement. She stated she is not quite sure what Mr. Sternagel wanted her to believe; the information is on the website, but it is spread out in a 270-page data book of all counties that is not taxpayer friendly; the costly information is already supplied to the DOR on Form 489 by the Property Appraiser’s Office; and she cannot understand why the Property Appraiser is fighting this or why anyone would be against citizens and taxpayers having this information unless they have something to hide. Ms. Farrar provided the proposal to the Board, but not the Clerk; and requested the Board review the proposal and bring it back for discussion at a later date to be added to the November 2004 ballot as a Charter amendment. She stated citizens and taxpayers of Brevard County deserve not only information about property value added through new construction, but more importantly, truth in property assessment, which discloses property value removed from the roll, which greatly affects the amount an individual pays in property tax.

PUBLIC COMMENT - WALTER PINE, RE: POLICY FOR CODE ENFORCEMENT
COMPLAINT PROCESS, SPEAKER CARD PROCESS, AND IMPOSITION OF
$65.00 CHARGE FOR COURTS

Walter Pine stated earlier he spoke to the Board about the Code Enforcement issue and creating a policy for the complaint process for the public to make complaints; there is currently a personnel policy that governs this; but it is imperative that the County have a complaint process that includes a reporting process as well; and the only way the Board is going to know what is going on is if there is a standard complaint and a requirement to report to it. He encouraged the Board to make the complaint process; stated people are not aware of the great protections public servants receive under personnel policies; they get a lot of deference and protection under that, more so than the public is aware of; it is important that not only is the public made aware of it through the policy, but there are a lot of things the County Manager and the other managers cannot do that the public would expect them to do; and it needs to be put in a written policy so the public is informed when they wish to make complaints. He noted he is disappointed there is now a requirement to put cards in before an issue begins; he has not seen any discussion of this; and for as long as he has been around that has not been a requirement, but today it is.

Chair Higgs stated the Board discussed it earlier in the meeting and it was agreed to by the Board.

Mr. Pine noted he did not see any vote by the Board or any public comment on it; he did not see the opportunity to change the historical behavior of the Board and allow the public to comment on it; few people put cards in after the beginning of an issue; and it is a moot point. He stated it occasionally occurs, but it is not significant; if the Board feels it is significant, he would request it keep records of it and not make these unilateral decisions without proper votes, proper public comment, and proper notice to the public. He expressed concern on imposition of the $65.00 charge for the courts and charging the maximum right upfront; stated that leaves no leeway for the future; there needs to be some belt-tightening here and consideration of efficiencies; and inquired is that the maximum that can be charged, is it what is needed now, and what happens next year or the year after. He stated the County needs to look carefully at the processes and look for some efficiencies so there is room for future growth; since the issue involves tickets, violations, etc., hopefully people will not violate as much; but he doubts that is going to be the case.

PUBLIC COMMENT - DAN VANDERBERG, RE: JAIL ISSUES AND TERRORISTS
ATTACKS

Dan Vanderberg stated he did not vote for the jail tax, but he made a mistake and feels responsible for why people are dying in the jail; the people who are in charge did not give the County the money it needs to do the job; people need to take responsibility for issues and tell the facts; and the whole thing with the Sheriff not taking responsibility and the arguing back and forth is undermining people’s confidence. He noted it is obvious the County does not have enough money to take care of the problems; all of these things people are complaining about are symptoms of the same thing, the County does not have enough money; a little bit of the population is not doing what they are supposed to; and in general people are just making mistakes. He stated he understands people in office make mistakes; suggested they take responsibility for it and move on as soon as possible; and noted a lot of people do not understand there is no money or time for taking care of some issues. He noted in the early days, Al-Qaeda was trained and funded by the United States; his paranoid mind is that it is still happening today; and inquired does it explain why terrorists got into the United States and took its planes, and why the U.S. has not caught Bin Laden and Mr. Berg was beheaded. He inquired is it the emperor is not wearing any clothes and are good men dying because bad men are fighting, or is he just paranoid.

PUBLIC COMMENT - THELMA ROPER, RE: ACCOUNTABILITY ISSUES AND OPEN
PUBLIC RECORDS

Thelma Roper stated she has heard a lot of requests and a lot of different ways for accountability; she does not see it coming; the proposal she made at the CRC would have been a good one concerning the Code Enforcement issue; and her proposal was about misuse of government computers. She noted she heard about accountability with the jail; there is a diversion program in Savannah, Georgia that starts from the minute a person is arrested; it works with NAMI also; and there are things that might solve some accountability issues before they become accountability issues. She stated the County needs to have a policy where there is a blatant ongoing history of different infractions to put accountability in; it is needed; open records are also needed in the County for the public; and she wonders if the non-interference clause in the Charter is as good as it seems to be and perhaps it should not be that way.

PUBLIC COMMENT - JANIS WALTERS, RE: CODE ENFORCEMENT MANAGER

Janis Walters stated in his lengthy rebuttal, the Code Enforcement Manager misstated the nature of the violation alleged against Curt Lorenc and conveyed to the Board as fact a great deal of hearsay, which was nothing more than repeating unsubstantiated allegations made by the complainants; the rebuttal merely reinforced her opinion about temperament and suitability; Mr. Lorenc’s Code Enforcement case was characterized as frivolous; and reminded the Board that Code Enforcement initiated it and as a result of that case, part of the County’s Solid Waste Ordinance was rewritten and clarified. She stated specific procedural rules for conduct of the special master hearings were created; she served on the committee; and her experience with the Lorenc case showed her many of the problems that needed to be solved. She noted it was implied to her that her additional comments to the Board beyond what the committee report contained were somehow inappropriate; but in serving on the rules committee, she did not relinquish her individual citizenship or her right to her personal opinion; and even the Supreme Court publishes a minority opinion. Ms. Walters stated she takes an interest in public issues, she participates, and speaks from her own experience because she knows it to be true; and she intends to continue doing so.

RECOGNITION, RE: COUNTY MANAGER

Commissioner Scarborough expressed appreciation to County Manager Tom Jenkins; stated if Mr. Jenkins had not requested scheduling today’s meeting, the May 18, 2004 meeting would have been a 20-hour meeting; and it would have started at 9:00 a.m. and finished at 5:00 a.m. on May 19, 2004.

WARRANT LIST

Upon motion and vote, the meeting adjourned at 6:55 p.m.

ATTEST:
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NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

(S E A L)