MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

September 30, 2008

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on September 30, 2008 at 9:03 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Truman Scarborough, Commissioners Mary Bolin, Chuck Nelson, Helen Voltz, and Jackie Colon, County Manager Peggy Busacca, and County Attorney Scott Knox.

 

 

The Invocation was given by Commissioner Helen Voltz, District 3.

 

Commissioner Bolin led the assembly in the Pledge of Allegiance. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve the August 7, 2008 Zoning Minutes, and July 29, 2008 Regular Minutes.

 

 

 

Commissioner Colon stated she would like to recognize all the fire fighters who worked to put out the Mother’s Day fires in Palm Bay and Cocoa; and they will all be receiving a certificate of appreciation.

 

 

 

Leslie Jones, Employee Relations Manager, stated he would like to thank the Board for the opportunity to recognize and present the Professional Development Certificates to those employees who voluntarily attended the Employee Development Program and successfully completed and passed all three phases of the Program.  He advised the Office of Human Resources annually presents a series of 18 classes organized into three phases representing 60 workshops to employees seeking to improve their knowledge of interpersonal and communication skills, the continuous improvement process, and organizational philosophies and objectives. 

 

The Board recognized and presented Professional Development Certificates to those employees who voluntarily attended the Employee Development Program and successfully completed and passed all three phases of the program during the last half of 2008 as follows:  Tricia Aynes, Lois Boisseau, Leslie Brey, Kathryn Conner, Melissa Dingman, Cynthia Fox, Shannon Maginnis, Darcie McGee,  Katrina Morrell, Ryan Rincones,  Andrea Chestnut,  Annette

 

Devlin, Larry Leffingwell, Lee Lowerre, Joanna Perez-Ostrom, Rebecca Ragain, and Gustavo Vergara. 

 

 

 

Commissioner Bolin read aloud a Resolution recognizing Sean Ford McGee on his accomplishments as an Eagle Scout.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to adopt Resolution recognizing Sean Ford McGee for his accomplishments as an Eagle Scout.  Motion carried and ordered unanimously. 

 

 

Sean Ford McGee expressed appreciation to the Board for the Resolution.

 

Commissioner Colon stated she was reappointed to U.S. Senator Mel Martinez’s selection committee for the Military Academy for the State of Florida; one of the things the committee looks closely at is how involved young people are; and many applications include Eagle Scouts.

 

 

 

Commissioner Bolin read aloud a resolution commending Emmett Ferrell, SCAT’s Vehicle Operator III, upon his retirement, for his 33 years of service to Brevard County.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to adopt Resolution commending Emmett Ferrell for his 33 years of dedication and diligence to Space Coast Area Transit, its customers, the Board of County Commissioners, and the citizens of Brevard County, and wishes him good health and happiness during his retirement.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Voltz read aloud a resolution proclaiming October 12 – 18, 2008 as National Wildlife Refuge Week in Brevard County.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution proclaiming October 12 – 18, 2008 as National Wildlife Refuge Week in Brevard County.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Voltz read aloud a resolution recognizing Puerto Rican Heritage Month in Brevard County.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution recognizing October 19 – November 19, 2008, as Puerto Rican Heritage Month in Brevard County.  Motion carried and ordered unanimously. 

 

 

 

Neta Harris stated she has good news for the Board, which is the Economic Impact Report from 2008 Festival held in January 2008; almost 4,000 attended the Festival in January; and they came from all over the United States and several foreign countries.  She stated during the five days of the Festival there was an economic impact of $1.5 million just in Brevard County; that is the equivalent of 14 full or part-time jobs; and there was over $100,000 that was returned in sales tax.  She noted the 12^th Annual Festival will be held January 21 – 26, 2009; and she will be before the Board in January with her birds and animals to show the Board a preview of what will be at the Festival.  She stated the Outdoor Adventure Guide is a publication that is co-produced with Brevard Nature Alliance and the Space Coast Office of Tourism; the Guide has information on anything anyone would want to do in Brevard County, such as outdoor activities, museums, and attractions; and the Guide will be produced every year. 

 

Commissioner Colon stated the Festival has put Brevard County on the map throughout the entire world; people are coming to the Festival from South Africa, the United Kingdom, Canada, Panama, Ecuador, and Chile; and a large amount of the dollars that come to Central Florida come from Latin American countries. 

 

Commissioner Voltz expressed appreciation to Ms. Harris and Laurilee Thompson, and they have done a great job with the Festival. 

 

 

 

Chairman Scarborough read aloud a resolution proclaiming Passionately Pink Day for the Cure. 

 

Motion by Commissioner Colon, seconded by Commissioner Voltz, to adopt Resolution proclaiming October 3, 2008 as Passionately Pink Day for the Cure for breast cancer awareness.  Motion carried and ordered unanimously. 

 

 

Julie Bicheck stated she is the volunteer president of the Board of Directors for the Central Florida affiliate; the Susan G. Komen for the Cure is the largest breast cancer charity in the world; in the first 25 years of the Foundation’s history, over $1 billion was donated to research, education, and services, to fight breast cancer; and in the next 10 years, the Foundation has pledged $10 million more.  She noted the Central Florida affiliate serves nine counties, including Brevard County;  75 percent of the  funds raised stay within the local affiliate area to be used for community grants; and 25 percent of the funds raised goes to the national office for national research grants.  She advised this year the Central Florida affiliate granted over $520,000 to community agencies for education and direct services to men and women who have no insurance.  She stated Komen of Central Florida thanks the Commission for recognizing the importance of breast health awareness by declaring Friday, October 3 2008, as Passionately Pink for the Cure Day; and she hopes everyone will wear pink in showing support for beating the disease, and honoring all survivors.

 

 

 

Chairman Scarborough invited Dr. Heshmati to come before the Board; and advised he received a letter from Senator Bill Posey that said it would be a good idea to name the new Health Department Facility after Dr. Heshmati.

 

Motion by Commissioner Colon, seconded by Commissioner Bolin, to waive BCC Policy BCC-58, Naming of Public Building; and approved naming the new Brevard County Health Department after Dr. Heidar Heshmati.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough stated many wonderful things have come to Brevard County because of Dr. Heshmati’s efforts; and thanked Dr. Heshmati for making things happen in Brevard County.

 

Dr. Heshmati stated he is shocked and honored; and expressed appreciation to the Board for the honor.  He stated he has worked for the County for 25 years; much has been achieved with the great staff and the support of the County Commissioners; and he is very proud of what everyone has done by working together.  He stated Brevard County is the only county in the United States with nine programs in the County with the best modern practice; and it is all because of teamwork, good staff, and support of the County Commissioners.

 

Commissioner Colon noted Dr. Heshmati is respected throughout the State and the Nation; and the Board is proud to have him in the community.

 

Commissioner Nelson stated he has worked on the staff side with mosquito issues; as a Parks and Recreation Director it is miserable to deal with that because once there is a case there is no conclusion to it because it never goes away; and Dr. Heshmati and his staff always comes up with ways of getting through it and keeping the public safe.

 

Commissioner Bolin stated because of Dr. Heshmati’s leadership she can relate to having many nights in the Emergency Operations Center during hurricanes and his staff was excellent and always had a teamwork attitude.

 

Commissioner Voltz stated there are nine programs in Brevard County that are model programs; it is because of what Dr. Heshmati has done; and all of Brevard County needs to know the importance of what Dr. Heshmati has done in the community. 

 

 

 

Commissioner Nelson read aloud a resolution proclaiming National 4-H Week in Brevard County. 

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution proclaiming October 5 – 11, 2008 as National 4-H Week in Brevard County.  Motion carried and ordered unanimously. 

 

 

Brennan Beteen expressed appreciation to the Board for the Resolution; stated he is the President of the Brevard County Council; and 2008 is a big year for 4-H because it is the 100^th birthday.  He stated there is 4-H Legislature in which members go to Tallahassee and take up roles and senators, representatives, and lobbyists, and work on bills; this year he was a representative; and unfortunately the bill he sponsored did not make it to the House floor, but it was a great experience.  He noted everyone involved in 4-H appreciates the financial assistance from the County Commission; the funding gives 4-H members wonderful opportunities for growth and friendship; and helps prepare the members to be called upon as public leaders in the community. 

 

 

 

Commissioner Nelson requested everyone present for the resolution introduce themselves. 

 

Roger Bonnett, Flotilla Commander for Central Brevard County.

Gill Stienford, Vice Flotilla Commander for Central Brevard.

Michael Canis, Former Flotilla Commander.

 

Commissioner Nelson read aloud a resolution recognizing the 50^th anniversary of The Coast Guard Auxiliary Flotilla 46.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution recognizing and commending the 50^th Anniversary of the Coast Guard Auxiliary Flotilla 46 in Brevard County, on fifty years of service to the citizens of Brevard County, the State of Florida, and the United States.  Motion carried and ordered unanimously. 

 

 

Barbara Corolis, Division Captain, stated the Auxiliary is composed of all volunteer civilians supporting the active duty Coast Guard; the Auxiliary is the civilian component of the Coast Guard; and the organization itself is only 60 years old, with Flotilla 46 being the second oldest flotilla.  She stated Flotilla 46 is vital to the Coast Guard because of its close proximity to Port Canaveral; the rest of the division supports station pumps inland; and that is direct support in the Coast Guard offices as well as on the water and teaching boating safety.

 

Gill Stienford expressed appreciation to the Board for the Resolution; the training civilians go through for Flotilla 46 is the same training the regular Cost Guard members go through, except law enforcement; and in the past few years Flotilla 46 has been involved in many search and rescue operations, and navigation aids.  He stated he would also like to thank the Brevard County Parks and Recreation Department for hosting the celebration that will be held on Saturday.

 

Chairman Scarborough stated there are many people in the community who give unselfishly of their time; and Flotilla 46 exemplifies what is wonderful about Brevard County.

 

 

 

Commissioner Bolin read aloud a resolution recognizing Florida Institute of Technology.

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to adopt Resolution recognizing Florida Institute of Technology’s 50^th anniversary.  Motion carried and ordered unanimously. 

 

 

Dr. Anthony Catonese expressed appreciation to the Board for the Resolution.  He stated the Florida Institute of Technology opened 50 years ago this week in the Eau Gallie Junior High School; it began with 144 students, including eight women and four African Americans, which at the time was quite amazing; and it has grown to one of the Nations leading research universities, with over $40 million in sponsored research and 6,500 students. 

 

Commissioner Colon stated she would like to thank Dr. Catonese for his leadership on the research building for autism.

 

*Commissioner Colon’s absence was noted.

 

 

 

Commissioner Nelson read aloud a resolution recognizing The 2008 Triad Senior Fest.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution recognizing The 2008 Triad Senior Fest and expressed appreciation to all the volunteers and sponsors who have made the event a great success.  Motion carried and ordered unanimously. 

 

 

Norm Hayes stated he is the second Vice President and he and his wife are the Co-chairs of South SALT, which is Seniors and Lawmen Together; the concept of the Senior Fest when it began was to have a way for one-stop shopping for all the citizens, and especially the senior citizens, to have their questions answered.    He stated Ron Morgan is going to arrange for Flow Mobile so that people can get drivers licenses and a State validated I.D. card for people who need it; and he thanks the Board for its support.

 

Ron Morgan stated the Flow Mobile also provides children’s I.D.’s; and parents need to bring their child’s birth certificate. 

 

 

 

County Manager Peggy Busacca stated she has a letter the Board had asked staff to prepare to Senator Haridopolous and the Brevard Legislative Delegation regarding the Consumer Choice Act, which has changed the way that some people can view stations on cable television; she has provided the letter to the Board in its packages; and she would like approval of the letter from the Board to move forward.

 

Chairman Scarborough stated the Board has previously made a motion on the letter, so Ms. Busacca may proceed with it.

 

 

 

County Manager Peggy Busacca advised staff would like to pull from the Consent Agenda, and schedule for a future date, Item III.A.12, Approval, Re:  Sidewalk Easement – Virginia T. Schenck/Brevard County; and advised Item III.C.12, Approval of Vested Rights, Re:  Recommended Order for Robin Goldberg Johnson, Case # 08-02, is in District 1, not District 2.

 

 

 

County Attorney Scott Knox stated he would like to withdraw Item VIII.E.2., Permission to Advertise Notice of Public Hearing, Re:  Proposed Anti-Terrorism Ordinance, in order to send it to the Sheriff’s Office for review before moving forward.

 

Commissioner Colon stated there will be a meeting in her office with everyone involved with the Item; and she spoke to Kathy Scheetz, who is fine with the decision.

 

 

 

Commissioner Nelson stated he would like to pull Item III.A.7., Site Plan Extension, Re:  The Villages – Vistar, Item III.A.9., Continuation/Modification of Board Policy BCC-53, Re:  Municipal Service Benefit Unit (MSBU), Item III.C.12, Approval of Vested Rights, Re:  Recommended Order for Robin Goldberg Johnson, Case # 08-02, and Item III.C.13, Approval of Vested Rights, Re:  Recommended Order for Andrew and Abby Barclay, for discussion.

 

 

 

Commissioner Bolin advised she would like to pull Item III.C.15., Approval, Re:  Space Coast Stadium Capital Improvements, for discussion.

 

 

 

Commissioner Bolin stated she attended the Water Congress in Orlando; it was very enlightening; and the issue of water supply will be coming to the Board in the very near future.  She stated she will prepare an executive summary for the Board on what she learned at the Water Congress.

 

 

 

Commissioner Voltz stated one of her constituents brought her pictures from the back of their house; and she would like to pass the pictures along to the Board.  She stated the beaches are horrifically eroded; she received an email from the homeowner that said they fared okay with Tropical Storm Fay, but there was a storm after that which did the most damage; FEMA basically has said there is nothing it can do; she does not think that is a good enough answer for the residents in the beach area; and she finds it hard to believe that government would say there is nothing that can be done.

 

Ernie Brown, Natural Resources Management Office, stated Virginia Barker of Natural Resources did an excellent job of trying to encapsulate on September 26^th where the County stood as it relates to the erosion event that came from the nor’easter after Tropical Storm Fay.  He stated the emergency dune project that was conducted and completed six months ago is still doing its job; there are no structures that have fallen into the ocean; what the Board did last year by finishing the reconstruction has kept the homes from falling; and now the County is back to a critical point again.  He stated what has been lost is not eligible for FEMA reimbursement; there is not a long-term strategy set up for the South Beaches; and there is a strategy for the Mid Reach that will be brought back to the Board at a future meeting.  He stated at the Board meeting after Tropical Storm Fay, the Board asked for the long-term strategy option document; a lot of the draft data has been put together; and one of the big questions is how to fund a long-term beach management strategy in the South Beaches.  He stated Natural Resources has been told very clearly that it is not eligible for federal assistance under the Army Corps of Engineers shore protection programs, which falls back to the State or local government; the State does not have the resources to step in; and the bottom line is it comes back to the local governments to decide how to address that portion of beaches.  He noted the Board asked staff to look at several options, including the shore protection district, a legislative taxing district, a redevelopment district, an MSTU, and an MSBU; in particular, the Board asked staff how they are created, what are the tax implications to the ad valorem tax cap, and the revenue types; and the only one that does not affect the ad valorem is an MSBU associated with beach work in the South Beaches.  He advised an MSBU would not have an impact on the tax cap, but it does require a majority vote by the Board and it requires a two-thirds approval by the property owners who will be assessed.  He stated the options that were available when presented several months ago ranged full spectrum from Managed Retreat, which is to buy out those homes as they  become  vulnerable   and  turn  the  land  over  to  public  access  areas;  that  is  the  least expensive option; the most expensive option is a full renourishment project in the entire South Beaches; and both options have pros and cons associated with them, but it equates to rough numbers over a 20-year window.  He stated if the Board went with the cheapest option it would be between $2.2 million to $5 million per year for 20 years; and the most expensive option would be $13 million per year for 20 years.  He stated the bottom line is the question of where the money will come from.

 

Commissioner Voltz stated she suggested the MSBU; the residents think the amount of taxes they pay is horrific; and knowing that the residents pay a lot in taxes, it is hard to tell them they need to pay more taxes.  She stated she does not know what the answer is; and inquired of the cost of a sand pumper; with Mr. Brown responding the Board can buy an in-shore pump that can dredge off-shore for $300,000 to $500,000; but the kind of dredging that is needed for the County’s beaches is a $50 million investment; that does not include the annual operations associated with that; and it breaks down to $90 per minute.  Commissioner Voltz stated there is a big difference between $3 million to $5 million and $50 million; and inquired what is the difference between the two machines.  Mr. Brown replied the machines that are necessary to perform effective beach nourishment for the County’s beaches, which means where the machines have to go to get the sand and how it has to be moved between the source areas and the beach areas and distribute it on the beach and where the work actually has to be done, whether it is North Reach, Mid Reach, or South Reach, it is a large span of beaches that has to be worked; and there has to be a larger system to do that.  He stated there is a large upfront investment in the equipment to do that; there are large areas to cover both in distance as well as the size of the beach. 

 

Commissioner Voltz stated she does not know if there is something that can be done, but for the Board to just say sorry to those residents, it does not sit well with her; and inquired if the South Beaches are considered a donor beach, because sand is being washed away from it and carried to other beaches to the south; with Mr. Brown responding an oceanographer would be better to look at shore transport, but a lot of the sand from the South Beaches goes one or two miles north of Sebastian; and it is a natural process that the sand will move.  He stated there are critically eroded beaches in Brevard County with the exception of those beaches just north of Sebastian; a portion of them have been accredited to the creation of the Port Inlet, but beyond that, there are no signs that the Port support has contributed to the erosion on the South Beaches; and basically, everything south of Patrick Air Force Base is not attributed to the Port Inlet. 

 

Chairman Scarborough stated the issue really needs to come back to the Board and be something more than under Commissioner Voltz’s report; it is a tremendous and complex problem; and Commissioner Voltz can meet with Mr. Brown and schedule it as an Agenda item.  Commissioner Voltz stated she will try to bring it back to the Board on November 17, 2008.

 

*Commissioner Colon’s presence was noted.

 

 

 

Motion by Commissioner Colon, seconded by Commissioner Voltz, to reappoint Dr. Patricia Manning to the North Brevard Hospital District Board, with term expiring December 31, 2012; and appointed Louis Lee Moore to the North Brevard Hospital District Board, subject to confirmation by the City Council of Titusville, with term expiring December 31, 2012.  Motion carried and ordered unanimously.

 

 

Commissioner Voltz noted walking into Parrish Medical Center is like walking into a hotel; it is truly a community hospital; and Chairman Scarborough should be very proud of the hospital because Parrish Medical Center President George Mikitarian does a great job and everything seems very cohesive. 

 

Commissioner Colon stated she would like to thank Mr. Mikitarian for his leadership and the partnership between Parrish Medical Center and the Board of County Commissioners.

 

The Board recessed at 10:30 a.m. and reconvened at 10:43 a.m.

 

 

 

Commissioner Voltz notes she would like to pull Items III.A.1., Grant Funding Acceptance, Re:  Brevard County Comprehensive Maritime Management Master Plan and III.B.4., Approval of Coastal and Estuarine Land Conservation Program Grant Proposal Submitted on behalf of the Environmentally Endangered Lands Program, Re:  Land Acquisitions in the Blueway Project Area, from the Agenda for discussion.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution amendment moving two organizations, International Game Fish Association and Florida Aquaculture Association/Shellfish Farmer’s Association, that are currently approved as members of the Stakeholder Working Group that is currently evaluating Chapter 62, Article X, Division 3, entitled Surface Water Protection.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Interlocal Agreement with the School Board and City of Satellite Beach to fund a local match amount of $108,600 each  (1/3 of the total local match amount of $325,800) for a  FEMA Hazard Mitigation Grant of $977,399 to complete the North Drainage Line Improvement Project.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution releasing Contract dated July 29, 2008 with Rockledge Fiske Apartments, LLC for Tuckaway Drive roadway improvements.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve waiving Section 62-2883(d), which requires a 15-foot buffer tract around the perimeter of a subdivision, for Houston Estates, as requested by Brevard County Housing and Human Services.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Contract with Bonita Beach, LLC guaranteeing performance for infrastructure improvements according to Section 62-2844 of the Code for Bonita Beach Condominium.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, approved continuation and modifications to Board Policy BCC-80 – Traffic Control Regulation.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to accept Sidewalk Easement from Bryant and Charlotte Seigler and Joinder in Dedication of Easement from Midland Mortgage Company.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute County Deed for the transfer of property, located at 4145 Harrell Road, Rockledge, to G. Leland Harrell.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolutions and execute Agreements for Railroad Reimbursement with Florida Department of Transportation (FDOT) and Florida East Coast Railway Company, LLC (FEC) for grade crossing traffic control devices at Canaveral Boulevard and Suntree Boulevard.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to accept Sidewalk Easement, located on the southeast corner of Myrtle Avenue and Carver Street in Mims, from Joan A. Hines.  Motion carried and ordered unanimously.

  

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution and execute Joint Participation Agreement with Florida Department of Transportation (FDOT) to provide construction funding reimbursement for the construction of a right turn land and associated drainage improvements on Ocean Boulevard at SR 513 (S. Patrick Drive); and approve Budget Change Requests necessary to expedite the Agreement.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt revised Resolution establishing fines and fees charged by Brevard County Library Services Department.  Motion carried and ordered unanimously. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution and execute Easement to Florida Power and Light Company (FPL) for electrical services to existing facilities at Hog Point Cove.  Motion carried and ordered unanimously.  

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution and execute Utility Easement to Florida Gas Transmission Company to construct, maintain, operate, inspect, repair, replace or remove a pipeline, and appurtenances for the transportation of natural gas and appurtenances for Viera Regional Park.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution amending rules and a schedule of fees for The Savannahs, The Habitat, and Spessard Holland Golf Courses.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to reappoint David Breininger to the Environmentally Endangered Lands Selection Committee, with term expiring December 31, 2010.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve awarding to lowest responsive bidder the Contract for renovation of Sam’s House Phase II, which is located at Pine Island Conservation Area; and authorize the Chairman to execute the associated Contracts for additional funding.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution approving revisions to Resolution No. 08-065, establishing rules and use policy and schedule of fees for Parks and Recreation Department.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Agreement with Brevard Community College for the purpose of reimbursement of fares for eligible college students on all fixed routes for a period of 12 months, retroactive from August 1, 2008 through July 31, 2009.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve the projected cost of $218,373, as submitted by the Tax Collector, of administration and collection of County Business Tax Receipts for July 1, 2008 through July 31, 2009.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve rejection of all proposals received for Request for Proposals #P-5-02-22 for Tissue Bank services for the Medical Examiner’s Office; release a new RFP under a set of revised specifications and scope of services; approve a Selection Committee consisting of Dr. Sajid S. Qaiser, 18^th District Medical Examiner, or designee; Lt. Bruce Barnett, Brevard County Sheriff’s Office, or designee; Orlando J. Dominguez, Chief of EMS/PIO, Fire Rescue Department, or designee; Ian Golden, Community Planning and Resource Manager, Housing and Human Services, or designee; and Robert Griswold, Quality Assurance Officer, Criminal Justice Services Department, or designee; approve a Negation Committee consisting of Heidi Denis, Assistant County Manager, or designee; Shaunna Heffernan, Criminal Justice Services Director, or designee; and Scott Knox, County Attorney, or designee; and authorize the County Manager, or her designee, to execute a negotiated agreement and any subsequent amendments to the agreement, contingent upon prior review and approval by the County Attorney and Risk Management offices.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to accept the Protect Committee’s decision to uphold the Contractor Pre-Qualification Committee’s determination that Corporate Building Management, Inc.’s qualifications, experience, and financial capacity are insufficient to perform the referenced project; and authorized awarding the bid for Cuyler Park gym floor replacement to the next lowest, responsive, and qualified bidder, Prestige Carpet of Daytona, in the amount of $70,182.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to grant permission to advertise Request for Proposals for real estate brokerage services; appoint a Selection Committee consisting Gay Williams, Housing & Human Services Director, Robin Sobrino, Planning and Zoning Director, John Denninghoff, Public Works Director, and Ed Gardulski, Assistant Road and Bridge Director, or their designees; authorize award to best-ranked broker as determined by the Selection Committee; and authorize the Chairman to execute associated contract with the selected broker upon review and approval by the County Attorney and Risk Management.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to consolidate Case #05-2612 and merge it with Case #98-3100; and direct staff to prepare and execute release of satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to not reduce the accrued fine of $125 for Case #05-0017; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to reduce the accrued fine for Case #98-3100 from $17,938 to the reduced sum of $5,305.63; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to reduce the accrued fine for Case #98-1575 from $17,938 to the reduced sum of $5,305.63; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to reduce they accrued fine for Case #93-3750 from $74,100 to the reduced sum of $24,088.74; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Special Magistrate’s recommendation to not reduce the accrued fine of $2,548 for Case #92-3288; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to grant permission to County staff, the Financial Advisor (PFM), and Bond Counsel (Holland & Knight) to advertise a Request for Proposals to procure a bank loan for not to exceed $3 million to fund the repair and renovation of utility improvements for the Barefoot Bay Wastewater Treatment Plant; authorize staff to accept and select the lowest and best priced eligible loan proposal; authorize the preparation of necessary loan documents; and delegate authority to the County Manager or designee to negotiate a loan agreement and take any necessary action prior to the final approval of loan documents by the Board at a subsequent meeting of the Board of County Commissioners.  Motion carried and ordered unanimously.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to grant permission to bid the landscape and irrigation project for medians on State Road 3 from SR 520 to Skylark Avenue as defined by the plans and technical specifications, and award the bid to the lowest responsible bidder; and authorize the Chairman to execute necessary construction contracts and make necessary budget changes.  Motion carried and ordered unanimously.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Federally Funded Subgrant Agreement with State of Florida, Division of Emergency Management, Providing for funds to upgrade all bay doors and windows at the County fire stations; grant permission to bid, award, and contract with the lowest bidder; and authorize the Chairman to sign all associated documents.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to grant permission to advertise Request for Proposals (RFP) for Medical Direction Services; appoint Selection Committee consisting of you; Orlando Dominguez, Division Chief of EMS; Brad Hall, Assistant Chief of Operations; and Donny Hughes, Space Coast Fire Chiefs Association Representative; appoint Negotiation Committee consisting of you; Brad Hall, Assistant Chief; Stockton Whitten, Assistant County Manager; and Morris Richardson, Assistant County Attorney; and extend the current Medical Direction Contract until such time as a new contract is signed by both the selected vendor and the Board.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Cancellation Agreement with American La France (ALF); grant permission to advertise for a Request for Proposal (RFP) seeking a qualified fire rescue apparatus manufacturer to build and purchase fire engines and aerial apparatus; appoint RFP/Selection Committee consisting of you, Operations Chief Brad Hall, Chairman of Engine/Aerial Spec Committee DC Robert Thirkelson, and Fleet Manager Tom Hare; and appoint Contract Negotiating Committee consisting of you, Operations Chief Brad Hall, and Assistant County Attorney Morris Richardson.  Motion carried and ordered unanimously.

 

  

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Grant Application in the amount of $2,072,275.00 from the State 9-1-1 Board; accepted Grant funding if tendered; and authorize Information Technology Director to execute any necessary Grant Agreements and establish the Grant Project Budget.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Grant Application in the amount of $3,894,449 from the State 9-1-1 Board to fund a 9-1-1 data entry and GIS system; accept the Grant if offered; and authorize Information Technology Director to execute Grant Agreements and establish budget.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to authorize the County Attorney’s Office to intervene in Indian River National Bank v. Indian River No. 1 Developers, LLC, Circuit Case No. 05-2007-CART-072320, in the event that that parties involved are not willing to resolve the existing PDP/PUD zoning violations.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve the continuation and modifications to Board Policy BCC-67 – Advisory Boards.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopted Resolution providing notice of the first and second addenda to the Aquarina PDP/PUD; and authorize recording of the Resolution in the Public Records of Brevard County.  Motion carried and ordered unanimously. 

 

  

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution approving Findings of Fact upholding denial of request for a Conditional Use Permit for alcoholic beverages for on-premises consumption on property owned by David O. Holland.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution approving Findings of Fact upholding denial of request for a Conditional Use Permit for alcoholic beverages for on-premises consumption on property owned by Rishi Real Estate Properties, LLC.  Motion carried and ordered unanimously.  (See page                                                     for Resolution No. 08-247.)

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Thursday, October 30, 2008 at 9:00 a.m. for a Workshop on Homeless Issues and the Legislative Package.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to reappoint Jack Amul, Mark Cherry, Sam Lenck, and John Walter to the Internal Audit Committee, with terms expiring October 31, 2010.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve scheduling a closed Executive Session with County Manager Peggy Busacca, Assistant County Manager Stockton Whitten, Deputy County Attorney Shannon Wilson, Transit Services Director Jim Liesenfelt, and Frank Abbate, Human Resources Director, to discuss ongoing negotiations with the Laborer’s International Union (LIU), Local 678 to be held at the end of the Regular Board meeting on September 30, 2008.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to execute Interlocal Agreement outlining the terms and conditions applicable to all entities that participate in the Brevard County Board of County Commissioners Group Self-Insured Health Plans.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve the renewal of Medicare Advantage Health Plans for the 2009 plan year with Health First Health Plans; authorize  the  Office  of  Human  Resources/Employee  Benefits  to  negotiate  and  execute  all agreements necessary to place the coverage effective January 1, 2009; and restructure premiums for group health plan members electing to participate in these health plan options.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve placement of the County’s Property/Casualty and Workers’ Compensation insurance coverage for Fiscal Year 2008-2009.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to appoint Lisa Stephenson to the South Mainland Library Advisory Board, with term expiring December 31, 2008; and appoint Maureen Rupe to the Surface Water Protection Working Group, with term expiring December 31, 2008.  Motion carried and ordered unanimously.

 

 

James Johnson stated he would like the Board to grant the Vested Rights even though Special Magistrate Stuart Capps has recommended denial; he stated he sent the Board packets that include reasons why his Vested Rights claim should be granted; and those reasons include title insurance policies, and the fact that his two parcels have been deeded together for over 20 years.  He stated another reason is the fact that his property is in State waters and docks have been there before his dock; a dock existed on his property when he bought it; and the dock had all of the appropriate Army Corps of Engineer permits, and environmental permits from Brevard County and the State.  He stated he believes everything was done properly by the previous owner and anybody else involved; and it is only because of a new ordinance that it has been an issue in Brevard County. 

 

Chairman Scarborough inquired if the subject property was the one that he asked for the title policy on; with Jack Kirshenbaum, representing the applicant, responding affirmatively.  Chairman Scarborough advised he asked for the title policy because there was an issue about whether or not Mr. Johnson had knowledge through the title policy.  Mr. Kirshenbaum stated Mr. Johnson’s dock is one of approximately 30 that are in the waterways that were brought before the Special Magistrate as a result of the Special Magistrate taking action against one dock owner on River Road in South Cocoa; that owner was upset about being enforced against, so he went around the County and found every other dock that was in the water on a lot that was considered to be substandard; and approximately 30 Code Enforcement cases came out of that.  He stated the owner was able to negotiate a settlement with the County and be excluded from Code Enforcement proceedings.   He stated that left 30  Code Enforcement  complaints  against property owners who had lots on the river that were substandard with regards to the accessory structures on them; the applicants of Items III.C.12 and III.C.13 had Code Enforcement proceedings abated while they filed and tried before Special Magistrate Capps a Code Enforcement proceeding; Mr. Capps found that the County did not do anything that it should not have done, or did not say anything that was relied upon by the applicants; and therefore, the Vested Rights failed; but he recommended the County consider some kind of ordinance grandfathering the owners in because of the inequity of the situation.  He stated when his clients were before the Board the last time, Chairman Scarborough was concerned about what the title policies were with regards to secondary lots and their docks in the water; and it was his impression that because Mr. Capps found, and his client argued, that they had done everything that a prudent buyer would do before closing, including investigating the records to determine that the Army Corps of Engineers had issued permits for the docks, researching the records to see how long the docks had been present, and whether or not there was an avenue they had not searched, and what the title policy said about it. 

 

Chairman Scarborough inquired if County Attorney Scott Knox looked at the exceptions and if there was anything there that would have put the buyer on notice.  Attorney Knox replied no, he did not see anything.  Mr. Kirshenbaum stated what the ruling of Mr. Capps does, and if the Board accepts it, is add a second layer of requirement of investigation and every owner would have to put their house on the market for sale and if a buyer was interested, it would force each of them to come to the County and ask staff if there is something they should know about the house; from his experience, County staff does not like giving opinions as to the legality of a dock, shed, or anything else; staff would say they are not at liberty to give legal advice; and if staff did give advice, it would add to the Board’s Vested Rights dilemma.  He stated that is an added level he does not think the Board wants; and that is why he would encourage the Board to find that there was Vested Rights and allow the owners to keep their docks.

 

Commissioner Voltz stated the Agenda Report states the applicant never contacted the County’s Zoning Office to determine the status of the property; she thinks it is not the responsibility of someone who buys a house and is told that everything is legal; and why should they have to come before the County and ask if everything is okay.  She stated Mr. Kirshenbaum is correct that staff would be going crazy with the amount of people coming to them; and because staff does not want to make a determination they will be coming to the Board every time a house is being sold to figure out if it is legal.  She stated there is a proposed ordinance in the process right now.  Chairman Scarborough noted the proposed ordinance is not going to affect the people on the river.  Commissioner Voltz stated for those people who bought their land and illegally built a dock, it is not the Board’s responsibility to go forward and say it is going to let them keep the dock; the Board is talking about people who legitimately had a dock on their property and now they are being told to tear it down; and that is not what government should be doing to its citizens.

 

Commissioner Nelson stated he would disagree that the dock was legally there; there are two things that come to mind; one is buyer beware; and the other is due diligence.  He noted the County does not have proactive Code Enforcement; but he has what is more of a solution; and if the Board moves ahead and says there is a Vested Rights even though it cannot prove Vested Rights, he worries about what that sets as a precedent for the future.  He stated he thinks in this case there was not Vested Rights, but that does not mean there may not be a solution; if the time is right he would like to make a motion to deny Vested Rights, abate Code Enforcement while the Board goes through the ordinance process, and look at a different version of how it may be able to permit those things.  He commented on houses in Biscayne Bay that have a time limit of how long they can be there, but at some point in the future they will have to be removed from use; a dock has a life of 15 years or so, and at that point then it is going to need to be replaced; and that may be an avenue the Board wants to pursue.

 

Commissioner Voltz stated she disagrees with Commissioner Nelson in that due diligence was done; a title search was done, and all the things were done that a normal person would do; and for Commissioner Nelson to say the owners have done something wrong is just wrong in itself.  She noted putting a time limit on things is a bad idea; it is fraught with all sorts of problems down the road.  Chairman Scarborough stated he heard Commissioner Nelson say he did not think it was a Vested Rights issue, but that the Board should solve the problem, and that there should be time limits; and he does not think the Board is at an impasse, as it needs to deal with the detail.  Commissioner Voltz stated the Board should not decide whether or not someone has done something wrong; it bothers her that the Agenda Report states the applicant never bothered to contact the County Zoning Office to determine the status of these properties; and she does not think it is the responsibility of the buyer to do that.  

 

Commissioner Bolin stated she would like further discussion on time limits.  Commissioner Nelson stated routine maintenance could be performed on a dock, but there is a point in time where the legitimate life of a dock is exceeded; in a marine environment the pilings are going to be eaten up after a certain amount of time; and at that point in time, when pilings are being replaced, in effect, the dock is being replaced; but up to that point, it can be kept in operating condition.  He stated he disagrees with Commissioner Voltz because she is saying the transfer of a property creates a Vested Rights, and the Board has had nothing to do with it.  Chairman Scarborough stated Commissioner Voltz has not argued the legal point of whether a Vested Rights was created; stated Commissioner Voltz noted it is a fundamental unfairness that needs to be addressed; and Commissioner Nelson agrees with her on that, so the Board needs to figure out where it can move forward.

 

Commissioner Colon stated it is the Board’s job to decide if something has been done wrong or right; that is what a Vested Rights is; stated Commissioner Nelson has a good compromise in acknowledging that the Board needs to help somehow in being able to fix the problem; and she believes the Board is trying to fix the problem. 

 

Commissioner Voltz stated a time limit puts a cloud on the property forever; if the person tries to sell the property and the Board has put a 15-year time limit on the dock, it is going to cause a whole new set of problems.  She noted the Board turned down the ordinance the last time it was before it; she does not have a lot of faith in the future of the dock ordinance; and that is what concerns her.

 

Chairman Scarborough advised Vested Rights is a very legal term; the Board had codified something called “Equitable Estoppel” that basically says a person cannot be encouraged to step on  the rug and then yank the rug out from underneath them; and certain things have to  be occurring for Vested Rights.  He stated it is not that the Board should not help out under certain circumstances; but the problem is the County was not asked; and therefore, there was no act to rely on.  Commissioner Voltz stated she does not think the County should have been asked.  Chairman Scarborough stated certain elements have to occur, otherwise, the Vested Rights Ordinance may as well be abolished; if the words Vested Rights means that anytime the Commission feels that someone has been harmed, that is not a Vested Rights; and he cannot abandon the legal concept.  Commissioner Voltz noted she agrees that the issue is not a Vested Rights; but the problem she has is that the last time the ordinance came up it was turned down; and the Board, in effect, has done nothing at all to help out the situation; it keeps coming back over and over again; and the Board needs to finalize it and do something to help.

 

Commissioner Nelson stated he did not support the ordinance because the Board was legitimizing an error; he is willing accept that there can be some other solution; and he would prefer to find a solution that works for everyone.  Chairman Scarborough stated as the Board laid out the Comprehensive Plan, it found out that from time-to-time there would be anomolies that would be totally non-conforming; and the Board dealt with it in that it is unjust for someone who has been there to have to tear something down.  He advised the Vested Rights is a different concept that says if someone goes to the County and is told the dock is fine, then improvements are made to the dock based on the information given by staff; and then there is Vested Rights.  Chairman Scarborough inquired how the Board can keep the ordinance in a posture that would not be inequitable and unfair to those who are keeping the status quo.  Planning and Zoning Director Robin Sobrino advised that has been a difficult thing to do legislatively in an ordinance, to deal with all of the types of issues; right now, the Board’s direction has been very limited in focus to say this is the scope of circumstance that can be defined in a law that makes good sense; and right now, as staff was directed by the Board last week, the scope and circumstance was that as long as somebody lived in a subdivision and owned a substandard sized parcel of land that is also in the subdivision, and it has a dock on it, staff can create a zoning mechanism to allow that substandard parcel of land to remain connected with that other lot in the subdivision. 

 

Chairman Scarborough inquired what if it were expanded beyond subdivisions; in other words, someone lives in Melbourne and has another parcel on Merritt Island; and that is a type of commercial activity the Board is afraid of creating.  Ms. Sobrino advised staff has not come to a conclusion that would define such a reasonable distance, but it is something staff could work into the Code.  Chairman Scarborough inquired if staff has advertised the ordinance; with Ms. Sobrino responding no, but the proposed ordinance is going to the LPA on October 20, 2008.  Chairman Scarborough inquired when the ordinance would have to be advertised; with Ms. Sobrino responding in a week.  Chairman Scarborough inquired if the Board could discuss some options at the Zoning meeting on Thursday; with Ms. Sobrino replying the Zoning meeting would be an appropriate place for the discussion.  Chairman Scarborough stated the Board would be running into a brick wall if it had just stipulated subdivisions.  Commissioner Voltz stated the river issue was brought up by Natural Resources Management Director Ernie Brown, who suggested the Board add it to the ordinance.

 

Commissioner Nelson stated the Board is talking about reducing the requirements in subdivisions  to  allow  some  things  to  occur;  but if someone lives on the water, they are stuck

with what the rules are; and they are going to get a benefit that someone else cannot get because they live on the water.  Chairman Scarborough noted the Board does not have to do away with setbacks; that was a secondary issue that came up because someone did not conform with setbacks.  He stated Ms. Sobrino can bring the Board the different problems, such as what is required if someone does not meet setback requirements.  Commissioner Nelson stated there is a circumstance that the Board can look at allowing this, but it has to have a point where it is cut off, because then there is also the neighbor who did not illegally build a dock; and that is why if the ultimate goal is to get everyone in compliance, then that is a different discussion than how does the Board approve the docks that have been built illegally. 

 

Chairman Scarborough stated the Board needs to engage in the discussion again on Thursday night and maybe Ms. Sobrino can contact each Commissioner to see which issues each of them see; and that will give staff enough time to advertise broadly enough with discretion.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve the Special Magistrate’s Recommended Order to deny applicant’s Vested Rights petition and record.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve abating Code Enforcement actions on this case and all similar requests until the Board has had an opportunity to deal with the Ordinance related to docks.  Motion carried and ordered unanimously.

 

 

James Johnson noted the reason the stilt houses in Biscayne Bay have a 99-year lease is because they are in the National Park Service; and the people who live there knew what they were getting into when they bought those homes; but himself and the Barclay’s did not know what they were getting into when they purchased their homes.

 

 

Jack Kirschenbaum, representing the applicants, stated the facts in the case with the Barclay’s are exactly the same as Mr. Johnson’s.  He advised the Barclay’s are realtors and did everything they could do to research the property before they bought it.  He stated his argument is the County should have done something to warn the applicants before hand; and he would ask that the Barclay’s be included in the abatement of Code Enforcement.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve the Special Magistrate’s Recommended Order to deny applicant’s Vested Rights petition and record; and approved abating Code Enforcement actions on this case and all similar requests until the Board has had an opportunity to deal with the Ordinance related to docks.  Motion carried and ordered unanimously.

 

 

Mel Scott, Assistant County Manager, stated if anyone wants a verification regarding the legality of a dock, whether it meets the setbacks, or the minimum size requirements, it is a service that is provided by the Planning and Zoning Office, and staff can put the verification in writing if requested.  Commissioner Voltz inquired if it is up to a realtor to inform the buyers of a dock on a property, or is it up to the buyer to determine if a dock is legal; and inquired how the average person would know that they should come to the County Planning and Zoning Office.  Mr. Scott replied if a buyer was going to base a purchase on the assumption that a dock has been on the property for 20 years, then the purchase would be based on that assumption; but if someone is purchasing something of value, like a dock, and it is being purchased assuming it is legal, then it needs to be understood that there is a local government that is going to verify that information; and people do not know that, but they should.  Commissioner Voltz stated the Board needs to contact realtors and tell them they need to inform their buyers that they need to check with County Government on a dock, shed, pool, or things of that nature.  Mr. Scott advised contracts provided by realtors to their clients make those statements; if a realtor is doing any basic contract that points to the legal status of any structure, they are making a false representation if they have not done their due diligence and have not disclosed that to the perspective buyer; and it is the responsibility of that professional to do that. 

 

Andrew Barclay stated as a realtor his duties are strictly defined by a Realtor Code of Ethics; he is explicitly forbidden from acting outside of his area of expertise; it is not clearly stated in the contracts; and he can recommend that people do that, but there is no way he can represent the information as accurate.  Mr. Scott stated in that instance Mr. Barclay would be recommending to his perspective buyer that he cannot represent that information, but the buyer should check with County Government that a dock is legal. 

 

Chairman Scarborough stated if Mr. Barclay tells his client to check with County staff and staff says there is no problem, the buyer purchases the property based upon that; but it still does not give Vested Rights because with Vested Rights, funds have to be extended beyond the purchase; and the purchase itself does not grant Vested Rights.  Mr. Barclay noted when he purchased his house, the Code Enforcement violation had not been cited; and this issue came up after he purchased his house.   

 

Ms. Sobrino stated it is typical that the Planning and Zoning Office receives inquires from lenders asking staff to advise whether there are issues on a property; and that is a mechanism that is routinely put in place.  Mr. Scott stated on the contract that was signed by Mr. Barclay, there is a line that says, “Seller shall convey marketable title subject to Comprehensive Land Use Plan, Zoning, Restrictions,” and at the bottom of the sentence it says, “Provided there exists, at closing, no violation of the foregoing and none to prevent use of the property for residential.”  He noted it is in the contract that the seller is put on notice that it has to be conveyed and that there are no problems.

 

Commissioner Voltz inquired how staff knows if a property has a dock when a lender contacts the Zoning Office; with Ms. Sobrino responding in order for staff to respond, it asks for a letter in writing along with information and a survey so staff can give the best possible information when the  research  is done.   Commissioner  Voltz  inquired if staff sees the survey;  with Ms. Sobrino responding if the survey is unable to be submitted, staff has to give a generic response; but those who are diligent and want the best answer will give the best possible tools to do so. 

 

 

Chairman Scarborough called for a public hearing to consider resolution vacating public utility and drainage easement in Cove Loop Drive, Villa De Palmas Sykes Cove, as petitioned by Danice C. Barrett.

 

Robert Beals, Representing the applicant, stated there was a survey error at the time the pool was installed; the surveyor showed the pool to be within the proposed screen enclosure; and when looking at the current survey, the Board can see that there is approximately three feet at one end, and 2.67 feet at the other end that encroach.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution vacating Public Utility and Drainage Easements in Cove Loop Drive, Villa De Palmas Sykes Cove, as petitioned by Danice C. Barrett.  Motion carried and ordered unanimously. 

 

 

Chairman Scarborough called for the public hearing to consider resolution vacating right-of-way in Spring Street East Extension of Scottsmoor, as petitioned by Bruce and Karon Nunes.

 

John Denninghoff, Public Works Director, advised there is an objection through the Land Development Office regarding the petition; the objection is the possibility of a restriction of accessibility to nearby properties to existing County-maintained roadways.

 

Karon Nunes stated she understands the objection from Land Development, but she is here for two reasons; when she purchased the lot, she was aware that a small piece of her property was on the north side of the proposed Spring Street; she was also made aware that the Board had vacated parts of Summer Street at the request of one or more of the property owners; and she is asking that Spring Street be vacated between Seminole Street and Hammock Street in order to have one contiguous lot, and full use of her property.  She stated she understands she will have to pay property taxes on that land if it is vacated and deeded to her; Pearl Street is also a 50-foot access; however, she understands that Hammock Street, Magnolia Street, and the others are not 50-foot streets.  She stated she has printed an aerial off of Map Quest showing the development in the area; there are no streets in the area except for Palm Street on the west side, Seminole Street on the east side, Pearl Street on the south side, and the access on the north side; and Hammock Street and Magnolia Street are in for a little ways; and they are still dirt roads; but Pine Street is a dirt trail.   She stated it seems the history of the subdivision is that not a lot has been happening in it for several years; and she would like the issue resolved one way or another so that she can start plotting her property.  She stated she is making the request because she knows a precedent was set in 2006; and she hopes the Board will consider that.

 

Mr. Denninghoff stated the basic premise behind the objection is that there is relatively limited access for the parcels to the west of the subject property; the Pearl Street right-of-way, for example, has a ditch in it and may not be able to be constructed to meet County standards for purposes of pulling a building permit; and he suspects that might be the case.  He noted in addition, there have been a few other vacatings that have taken place in the area, which could, taken together, result in a restricted access condition, which could result in someone not being able to either pull a building permit or maybe build a much longer road to get to a County-maintained road and therefore their cost to build that road and access would then go up rather dramatically.  He stated he does not know why the lot configuration is the way it is with the six and a half-foot strip separated from the main body of the lot; and he is sure there is a history there, but he does not know what it is.

 

Chairman Scarborough stated he would like to visit the property and he would suggest tabling the item to the next meeting.

 

Motion by Commissioner Nelson, seconded by Commissioner Colon, to continue the public hearing to consider a resolution vacating right-of-way in Spring Street East Extension of Scottsmoor, as petitioned by Bruce and Karon Nunes, to the October 14, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

 

Joan Wheeler stated on the Board’s referendum projects she is curious to find out if each Commissioner is in charge of the projects in their Districts; at the last meeting she brought quite a bit of information to the Board; after she spoke Commissioner Voltz referred the issue to Chairman Scarborough as it was in his District; and Chairman Scarborough commented that all the Commissioners have meetings in their offices.  She stated that comment brought forth laughter from the dais, but she did not see anything funny about it; nevertheless, Chairman Scarborough shortly after that, passed the gavel, and moved to pass the issue; and she would like to know if the Board appoints each other to be in charge of referendum projects in their Districts, and meet privately with other officials.  She stated she would like the Board to seek an opinion from the Attorney General; if one elected official meets with another elected official and is getting facts, then that is fine; but if a Commissioner is going to come back and make a recommendation to the Board, that is not fine.  

 

Chairman Scarborough stated anyone who wishes can contact his office and get a schedule of all of his meetings; from time-to-time he has other people come into his meetings; he has also had the press and television stations attend meetings; his office is totally open; but his office cannot operate without totally meeting with staff and interested citizens; and Ms. Nunes came to his office for a meeting and he will go to Scottsmoor to look at her property, and other interested citizens will be advised when he is there.

 

Ms. Wheeler stated she would like to be advised when Chairman Scarborough is in Scottsmoor meeting with Ms. Nunes.  Chairman Scarborough advised he will make sure Ms. Wheeler receives notices of all his meetings all the time.  Ms. Wheeler stated she would like Chairman Scarborough to get an opinion from the County Attorney. 

 

Chairman Scarborough inquired if a Sunshine Law violation occurs if Commissioners meet with staff and the public.  County Attorney Scott Knox replied no.  Chairman Scarborough inquired if the Board should get an opinion from the Attorney General.  Attorney Knox advised there are dozens of opinions already; and the Board does not need to get another one.

 

 

Chairman Scarborough called for the public hearing to consider resolution vacating Public Utility Easement in Egret Circle, Barefoot Bay, Unit 2, Part 11, as petitioned by Kelly A. Slater.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution vacating Public Utility Easement in Egret Circle, Barefoot Bay, Unit 2, Part 11, as petitioned by Kelly A. Slater.  Motion carried and ordered unanimously. 

 

 

Chairman Scarborough called for the public hearing to consider resolution vacating Easement in Misty Harbor Place, Embassy Arms Court(s), as petitioned by David W. Milton.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution vacating Easement in Misty Harbor Place Embassy Arms Court(s), as petitioned by David W. Milton.  Motion carried and ordered unanimously. 

 

 

Chairman Scarborough called for the public hearing to consider resolution denying request to vacate Outfall Drainage Ditch west of S. Tropical Trail, Sanders Subdivision, as petitioned by Jerry Vaxmonsky.

 

John Denninghoff, Public Works Director, advised Mr. Vaxmonsky was aware of the wording on the Agenda Item; Mr. Vaxmonsky could not be present today; and staff would advise the Board there is no clear public benefit to approving the vacating request as there are Deed Restrictions on the property indicating the vacating cannot be done.  He noted the Comprehensive Plan states the vacating cannot occur unless there is clear advantage to the public; and on that basis, staff would like to dispose of the vacating request today; Mr. Vaxmonsky still wants to pursue acquiring the property or having a right-of-way use agreement; and staff would like direction from the Board.  He stated there is also a Code Enforcement issue on the property, which is an abatement being held in advance until the vacating request issue has been resolved.

 

Joseph Crescio stated he owns the lot north of the subject property; the property in question is on the west side of South Tropical Trail; it is approximately 20 feet wide, and 120 feet deep; and it is a valuable piece of property.  He noted he first became aware of the request to vacate when Mr. Vamonsky asked him to sign a document; he opposed of the vacating; and his concern is that he received a copy of a right-of-way use agreement.  He stated when Mr. Vaxmonsky bought his house he knew about the existence of the subject property, which he did not own; Mr. Vaxmonsky knew part of his boathouse was on the County property; Mr. Vaxmonsky built a fence on the County property and built a driveway, which enclosed the property; and when he put up his fence he left a portion of land between his property and the County property, so that if he wanted to trim the shrubs, he would have a right-of-way.  He stated Mr. Vaxmonsky built a  fence with columns and wrought iron fencing between the columns; stated Mr. Vaxonsky asked him if he would mind enclosing between the last column and Mr. Vaxmonsky’s column, which is approximately 15 feet; and he agreed and paid for it, not knowing it was County property.  He stated he offered to buy the property, but Mr. Vaxmonsky said it could not be sold.  He stated he has a problem with the Board either selling the property to Mr. Vaxmonsky for very little money, or giving him total control of the property.

 

Chairman Scarborough stated the request is to deny the vacating; but staff is asking direction to prepare a right-of-way use agreement; since the Board is considering denial, that is what basically will occur; and inquired if Mr. Crescio is addressing the right-of-way use agreement.  Mr. Crescio stated the Board is rewarding bad behavior.  Commissioner Bolin noted the County is not selling the land.  Mr. Denninghoff stated a draft version of the resolution has been prepared to see if an agreement could be reached; Mr. Vaxmonsky’s attorney has been given staff comments on the draft resolution. 

 

Chairman Scarborough stated the only thing he has a problem with is the section in the resolution that reads, “If denied, authorize staff to prepare a right-of-way use agreement”; and he does not know if the Board wants to give authorization of a preparation of a use agreement if the two parties agree.  Mr. Crescio stated he does not have a problem with Mr. Vaxmonsky renovating his boathouse; and his concern is that Mr. Vaxmonsky will be able to control the property.  Chairman Scarborough stated when the Board authorizes staff to do something it is implicit that it is brought back to the Board; and he does not want to see anything until Commissioner Bolin looks more into the issue.

 

Motion by Commissioner Bolin, seconded by Commissioner Colon, to deny request to vacate outfall   drainage   ditch   west   of   S. Tropical Trail, Sanders Subdivision, as petitioned by Jerry Vaxmonsky; and strike-through the portion of the resolution authorizing staff to prepare a right-of-way use agreement.  Motion carried and ordered unanimously.

 

Chairman Scarborough called for the public hearing to consider approving Merit System Policy IX, Section II.A.7.

 

There being no objections heard, motion was made by Commissioner Voltz, seconded by Commissioner Bolin, to adopt revisions to Merit System Policy IX, Leave, to mirror the recently agreed upon language relating to sick leave in the collective bargaining agreements; and direct staff to implement this policy change effective October 1, 2008.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough called for the public hearing to consider ordinance allowing imposition of $10.00 surcharge for parking violation in unincorporated areas of Brevard County for purposes of providing funding for school crossing guards during school sessions. 

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Voltz, to adopt Ordinance No. 08-36, allowing imposition for $10.00 surcharge for parking violations in unincorporated areas of Brevard County for the purpose of providing funding for school crossing guards during school sessions.  Motion carried and ordered; Commissioner Nelson and Commissioner Colon voted nay.

 

 

Chairman Scarborough called for the public hearing to consider ordinance repealing Section 18-61, Brevard Code of Ordinances, providing for establishment of the Valkaria Airport Advisory Board (VAAB.)

 

Janis Walters stated before the Board is a proposal to repeal Section 18-61 of the Code of Ordinances; and she would like to suggest that instead of repealing the authority for the VAAB, that the Board just change it to permissive rather than mandatory to have a VAAB.  She noted future Commissions may find a VAAB to be useful and should have the option of creating one by  resolution  instead   of  having  to re-amend  the  ordinance, as well as approve a resolution; there are many ways in which future Commissions may find a VAAB to be useful; and not the least of which are updates and amendments to the Airport Master Plan and Comprehensive Plan changes to the Town of Grant-Valkaria. 

 

Curt Lorenc stated the Board should leave open the option for a VAAB to future Commissions; and there should be a VAAB available to hear such issues as the Airport Master Plan.

 

Dr. Russell Minton stated he would like to request the Board repeal Section 18-61 of the Code of Ordinances. 

 

Commissioner Nelson stated he did not support abolishing the VAAB; but he could support this request if the Board left the ability for a future Commission to be able to create a VAAB without amending the ordinance; and he would suggest that instead of saying it is no longer necessary saying it is not necessary at this time and should be disbanded; and then the Commission may establish a VAAB in the future by resolution.  He stated he does not see the downside for a future Commission to create a VAAB by resolution; if there are three members of a Board that want an advisory board it can change the ordinance; and why should it have to go through an ordinance change just for that purpose.

 

County Attorney Scott Knox advised a future Commission can do that by resolution without the ordinance.  County Manager Peggy Busacca stated the ordinance disbands the VAAB; and inquired if the words “may establish” were to be left in the ordinance, would it have to be re-advertised.  Attorney Knox replied yes, it would.  Commissioner Nelson inquired why the ordinance would have to be re-advertised; with Attorney Knox responding the title is calling for the disbanding of the VAAB; and given the facts in the ordinance, the Board is basically repealing the provision that deals with the VAAB.  Commissioner Nelson stated disbanding the VAAB and creating the option to create one in the future are two different things. 

 

There being no further comments or objections, motion was made by Commissioner Colon, seconded by Commissioner Voltz, to adopt Ordinance amending Section 18-61 of the Code of Ordinances of Brevard County, Florida; disbanding the Valkaria Airport Advisory Board; and providing for an effective date.  Motion carried and ordered; Commissioner Nelson voted nay. 

 

 

Commissioner Colon stated she would like to send a letter of appreciation to the VAAB members for their hard work over the years; and also to the community for being vigilant.

 

 

Chairman Scarborough called for the public hearing to consider granting Economic Development Tax Exemption for HMD Biomedical.

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Nelson, to adopt Ordinance granting an Economic Development Ad Valorem Exemption to HMD Biomedical, LLC, 1400 White Drive, Titusville, Florida; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of F.S. 196.012; providing for proof of eligibility for exemption; providing for an annual report by HMD Biomedical, LLC; providing an effective date.  Motion carried and ordered unanimously. 

 

 

Chairman Scarborough called for a public hearing to consider a resolution denying request to vacate outfall drainage ditch west of S. Tropical Trail Sanders Subdivision, as petitioned by Jerry Vaxmonsky. 

 

John Denninghoff, Public Works Director, advised staff has abated Code Enforcement on the encroachment on public property; and staff would like direction from the Board on whether to continue Code Enforcement Abatement.

 

There being no further comments or objections, motion was made by Commissioner Bolin, seconded by Commissioner Voltz, to approve continuing Code Enforcement abatement.  Motion carried and ordered unanimously.

Chairman Scarborough called for the public hearing to consider ordinance amending to Section 62-102(b)(2)c., Unpaved Road Agreement and Unpaved Road Agreement Checklist. 

 

Kevin Sullivan stated he knows the Homeowners Association in West Canaveral Groves is non-mandatory; when deals are made with the HOA it does not affect everybody like himself because he is not a member; inquired who pays the interest if a homeowner seeks to defer their payment for their share of the paving; and inquired if it is the homeowner, land owner, or the tax paying public.  Assistant County Manager Mel Scott advised the property owner pays the interest.  Mr. Sullivan inquired if it is the person who owns the property, or the homesteader.  Mr. Scott stated the entity that is involved in the unpaved road agreement pays the interest; and that also includes the paving.  He stated there is payment that occurs when the unpaved road is constructed; the property owner can decide to pay it up front in a lump sum, or it can be paid over 10 years; and if it is paid over 10 years there is a two percent interest rate attached to it.  Mr. Sullivan inquired if there is a deferment for homesteaders; with Mr. Scott responding affirmatively.   Mr. Sullivan stated someone has to be paying up front to have the road built; and inquired if he, as a land owner, is putting in the share of the homesteader.  Mr. Scott replied there has to be adequate funds up front to begin the construction. 

 

Chairman Scarborough stated if Mr. Sullivan has a lot of questions, it may be best to defer the item and bring it back at the next meeting in order for Mr. Sullivan to have his questions answered by staff; but if Mr. Sullivan feels comfortable, he can continue.

 

Mr. Sullivan stated it is his understanding that when an MSBU comes out, the vacant land owners who are not homesteaded have to pay for the homesteaders’ portion of the paving.  Mr. Scott replied when an unpaved road agreement is entered into, and once 51 percent of the lots receive building permits, the unpaved road agreement kicks in and that is paved; and then the owners have to pay for the paving.  Mr. Sullivan stated he also has to pay for the homesteaders.  Mr. Scott stated that is correct; the only exemption a land owner has is if there is an existing building before the unpaved road agreement is entered into.  Mr. Sullivan stated he should not have to pay for somebody else’s road paving; it creates an undue burden on his property by people who are similarly situated as him; and he is against that part of the change because he would be paying for somebody else.  Mr. Scott stated if Mr. Sullivan has an unbuilt piece of property and he has not conveyed his right-of-way, which is his case, and Mr. Sullivan has not conveyed to the County the rights-of-way in the middle of the road, he does not have to pay; and Mr. Sullivan is not subject to an unpaved road agreement because he would be a break in the chain that would prevent somebody from developing their property through this agreement. 

 

Commissioner Nelson inquired who carries the cost of the interest over the additional time while waiting for someone to sell their house; with Mr. Scott responding the other folks that are part of the unpaved road agreement; and stated they will be reimbursed when the house is sold.  Mr. Scott stated if there are 10 lots that connect to Satellite Boulevard, there would be eight lots paying for 10; when two are sold, then those dollars will be reimbursed to the previous eight; and that is how the unpaved road agreement is set up.  Mr. Sullivan stated the majority of the lots on the beginning of the street are already developed; if paving was done, then only two people are going to be paying for 10 people; and it is unfair because it applies to different lots and it creates a burden on properties that should not be there by County ordinances. 

 

There being no further comments or objections, motion was made by Commissioner Voltz, seconded by Commissioner Nelson, to continue the public hearing to consider an ordinance amending Section 62-102(b)(2)c., Unpaved Road Agreement and Unpaved Road Agreement Checklist to the October 28, 2008 Board of County Commission meeting.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough called for a public hearing to consider ordinance amending Ordinance No. 08-08, County Alcohol and Other Drug Abuse Trust Fund.

 

Gay Williams, Housing and Human Services Director, advised the Board does not have to take action as the item is a public hearing for the purpose of receiving public comments on the proposed amendments to Chapter 38, Section 8, Code of Ordinances of Brevard County.

 

There being no objections, the Board took no action for considering an ordinance amending Ordinance No. 08-08, County Alcohol and Other Drug Abuse Trust Fund.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to adopt Resolution providing notice that any proceeds of a letter of credit issued by Mercantile Bank shall be used solely for the construction of the Aquarina Beach Club.  Motion carried and ordered unanimously.

 

 

Commissioner Bolin stated she understands that by combining the Planning and Zoning Board with the Local Planning Agency, there will be more lengthy meetings; and she is not in favor of combining the two because they should be distinct unto themselves and the Board has to look at what is best for the public. 

 

Commissioner Voltz inquired if the Local Planning Agency can be made up of different members.  Commissioner Bolin advised appointees are people who want to be on the respective boards, and that is totally upon the members’ decision; and she has been getting a lot of phone calls from people who want to serve on the boards. 

 

The Board considered request to amend the Local Planning Agency (LPA) meeting schedule to coincide with the Planning and Zoning (P&Z) Board meeting dates, but took no action. 

 

 

Joan Wheeler inquired if money is being transferred from Parks and Recreation Department to the Public Works Department because the work can be done cheaper.   Chairman Scarborough advised it is a contract to do the work.  Ms. Wheeler inquired if the contractors will sub-contracted; with Chairman Scarborough responding the contractors may sub-contract certain portions.  Chairman Scarborough stated the boat ramps are separate; there were three component  parts;  one  part  is  a  continuing  agreement with Tedder Boat Ramp Systems, and they can do the boat launch; Road and Bridge can do the earth moving and underground work; and there is another group who will move the lights.  Ms. Wheeler stated the North Brevard Commission of Parks and Recreation voted to budget up to $3,249,880 based on an estimate; and inquired if it is still going to cost that much.  Chairman Scarborough stated he does not know if it is going to cost that much, but there are still things that can be done internally. 

 

Don Lusk, Parks and Recreation Director, stated there are some things that can be done internally, like what has been done at other parks in terms of gazebos, benches, and installation of the water fountains; and those things can be done by the department in order to save money.  Ms. Wheeler inquired how much money is being transferred to the Public Works Department.  Chairman Scarborough advised it is $1,644,316.  Ms. Wheeler inquired if the work will be able to  be completed without costing $3 million.  Chairman Scarborough stated $582,000 is being transferred to Tedder Boat Ramp Systems for the boat ramps; and $35,000 is for the lighting contractor.  Ms. Wheeler inquired if the City of Titusville has agreed to everything; with Chairman Scarborough responding the Board has full authority to proceed today to contract for the work.  Mr. Lusk advised the Board is not fully permitted with every aspect.  Mr. Lusk stated he would be happy to meet with Ms. Wheeler and review the costs.  Ms. Wheeler stated it is essential that the park be done in such a way that no one can come in and take it away under any circumstances.  Chairman Scarborough explained when the Board votes to transfer funds it enters into agreement to have work performed; and he is pleased with the cooperation from the Public Works Department. 

 

Bea Polk stated she appreciates the Public Works Department because the County is saving money; the County is getting a good deal; and it is time to get the work done.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to authorize the Public Works Department to perform civil site work services at Marina Park and to enter into Interdepartmental Agreement; approve the use of Tedder Boat Ramp Systems for the boat ramps and docks; approve M. Gay Constructors, Inc., for the softball lighting; and authorize the Chairman to execute Budget Change Request transferring budget from the Parks and Recreation Department to the Public Works Department.  Motion carried and ordered unanimously.

 

 

 

Commissioner Voltz inquired if the Board receives $2 million, does it have to go someplace specific, or is it going to go into the General Fund; with Assistant County Manager Stockton Whitten advising it will go into the General Fund Reserves.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve the request proposed by Northport Health Services of Florida, LLC, to negotiate between Brevard County and Northport Health Services of Florida, LLC for  the  Sale  Purchase  of  the  West  Melbourne Health and Rehabilitation Center facility located at 2125 New Haven Avenue, West Melbourne, Florida.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Colon, to acknowledge the Canaveral Port Authority’s Resolution adopting the FY 2008-2009 Budget and Estimate of Revenues and Expenses.  Motion carried and ordered unanimously.

 

The Board recessed from 12:30 p.m. and reconvened at 1:19 p.m.

 

 

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

 

County Attorney Scott Knox stated the Board is reviewing the recommended order of the Special Magistrate that came forward from a Vested Rights proceeding; under the Board’s Ordinance, the Special Magistrate is required to make a recommended order containing Findings of Fact and Conclusions of Law; the Board reviews the Findings of Fact and Conclusions of Law based upon the record; the Board cannot change anything the Special Magistrate has made in the Findings of Fact; however, the Special Magistrate’s legal conclusions are advisory to the Board; and the Board is determining whether the facts that the Special Magistrate has found are Vested Rights.  He stated in order to determine if there are Vested Rights or not, the Board has to find that there is an act or omission of the County involved, that the property owner, Mr. Zajdel, relied upon that omission in good faith, and if the owner substantially changed his position in reliance of the act or omission by the County; and those are the factors the Board is supposed to look at. 

 

Chairman Scarborough stated one thing that does not account for an act or reliance is the purchase price of the property.  Attorney Knox stated under the Ordinance the purchase price does not qualify as a reliance.  Chairman Scarborough stated the purchase is not something the Board can consider, but other acts of expenditures of funds would be something the Board can consider.  Attorney Knox stated the other thing the Board needs to be aware of is that what the Board hears from the public cannot be taken as any new evidence; there cannot be any new evidence in the case because the record is set; and the Board can hear arguments about whether there should or should not be Vested Rights, but it cannot take any more evidence. 

 

Jack Kirschenbaum stated he supports the recommended order of the Special Magistrate and he is here to answer any questions from the Board or respond to any comments that are made by those speaking against the recommended order.  He stated he would like to request that himself or Mr. Zajdel be allowed to follow up if there are any questions.

 

Jim Flannigan stated he is against building anything on the subject property, and it should remain as wetlands.  He submitted pictures to the Board and to the Clerk.  Commissioner Voltz inquired if the pictures were entered as evidence before the Special Magistrate.  Mr. Flannigan replied no, they were not.  Commissioner Voltz advised the pictures are new evidence and the Board cannot take new evidence. 

 

Richard Stevens stated he is against the Vested Rights recommendation; he is not presenting any new evidence; but what he wants to present is a history lesson.  He commented on the timeline as presented by the Special Magistrate in Attachments 2 and 3.  He advised the three and a half acre property has been presented to the Citizen Resource Group, the Planning and Zoning Board, the Local Planning Agency, and the Board of County Commissioners, and it was denied at each meeting.  He noted he asked County staff how the land to the East of the Small Scale Amendment was designated as Residential 15 on the Future Land Use Map; and at the time, County staff could not answer, so the County Commission gave an action to staff to find an answer to that question.  He stated County staff sent a letter to Mr. Zajdel on December 13, 2006 stating the subject property was not legally designated as Residential 15, and was being reverted back to Private Conservation; and on December 27, 2006 Mr. Zajdel applied for a Large Scale Amendment for 13 acres in accordance with Florida Statute 163.31.84, and it also included a Zoning change request from GU to RR-1.  He on January 12, 2007 the applicant filed a Vested Rights application, which was the last day allowed under Section 62-507 of the County Code, in which the applicant had 30 days to place their Vested Rights claim; and he would assume the 7.83 acres is the only thing subject to the Vested Rights claim.  He noted on July 24, 2007 the Board looked at the Large Scale Plan Amendment and it was denied; he sat through the two days of testimony and never heard or saw any evidence that the property owner received any confirmation that development rights were bestowed.  He advised he is opposed to the Special Magistrate’s recommendation to modify the Comprehensive Plan that would allow any subsequent development East of Ulumay Wildlife Sanctuary, West of Caribbean Isles Subdivision; the area was designated as Conservation Lands in the 1988 Comprehensive Plan and reflects a commitment to the citizens of Brevard County to maintain a balance between development and conservation to the benefit of current and future generations.  He stated re-designation of the subject property would diminish public trust that the Board is acting in the best interest of the community at large; and any re-designation of the property in the Small Scale Amendment of 2006 would appear to reward the applicant at the expense of the public.  He noted Ulumay is a diverse nature preserve supporting fauna and animal populations; Ulumay is a functional buffer between existing development and the fragile waters of the sanctuary; and it has also been subject to an EEL initiative and is the subject of the Indian River Lagoon Blueway Project as a targeted property. 

 

Jack Lembeck stated the subject property cannot be walked without realizing it is a nature preserve; and no one can walk along the pathway and get the idea that it is not preservation land, whether private or public.  He noted Mr. Zajdel’s indication from the start that the County was the cause of him to change his mind on buying the property cannot be justified because the land is obviously conservation land regardless of whether it is considered high dunes or wetlands.  He stated Mr. Zajdel was warned from the very first day he visited the County offices that the maps were possibly inaccurate and they were only estimates and not to be used as a finding of fact in a legal distinction. 

 

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

 

Elizabeth Christianson stated she would like to ask the Board not to accept the Special Magistrate’s recommendation; she believes the original land owner felt the land should never be developed and he believed the land should always stay as it was intended and is currently, which is a buffer to ensure a long-term protection of environmentally sensitive Sykes Creek and Ulumay Wildlife Sanctuary.  She noted a few years ago the neighbors talked to the previous owner who assured them he would not develop the land; Mr. Zajdel went to the County in good faith to see the situation with the property and was presented with conflicting maps; and Mr. Zajdel chose to use the map that was most advantageous to him, and then he closed on the property without any legal resolution or even a boundary survey.  She stated a contract for the land purchase was unconditional; and the neighbors should not be punished for Mr. Zajdel’s poor business habits.  She stated she would like to urge the Board to not accept the Special Magistrate’s recommendations and stand by its prior decisions and rulings that all the land is private conservation; and the Board is being asked to make a decision before the Small Area Plan is presented. 

 

Vince Lamb stated everything seemed to be going well in the area surrounding the Ulumay Sanctuary; with the Board’s approval, the EEL Program purchased the Boyd-DiChristopher property as public conservation lands; the East Merritt Island Small Area Study was completed and has gained support; and now there is a land owner who wants to develop the adjoining property that was considered private conservation land.  He noted Mr. Zajdel wants to construct six units per acre on 13 acres of supposed non-wetlands on a 60-acre parcel; and his attorney is blaming Planning and Zoning for mis-informing him.  He stated his biggest concern with development of the property is the inevitable pollution of the Indian River Lagoon that will be caused by 78 more residences adjacent to Sykes Creek and Ulumay; the Lagoon is a critically important resource for the County; and the water quality needs to be improved and not reduced.  He noted if Mr. Zajdel purchased the property due to erroneous information provided by a Planning and Zoning employee, perhaps the County should provide compensation to offset the error; and Mr. Zajdel should not be allowed to develop the property in a manner that matches the mis-information.  He advised he would like the see the EEL Program purchase the property; but the EEL Program is a willing-seller program; and to the best of his knowledge, Mr. Zajdel has not attempted to work with the EEL Program. 

 

Ken Klein stated his property backs up to Mr. Zajdel’s property; and he would like to urge the Board to reject the Special Magistrate’s decision.  He stated it does not make any sense to punish the existing homeowners for a possible mistake by one County employee. 

 

Chairman Scarborough stated it is the legal conclusion the Board can reject, not the facts.

 

Arlene Klein stated she would like to urge the Board to not allow any development of the subject property and to not accept the Special Magistrate’s recommendation. 

 

Mary Hillberg stated she is opposed to the Special Magistrate’s recommendation; she is the Chairperson for the North Banana River Drive Small Area Study; and she would like to remind the  Board  that  all  the  conditions  and facts of substantial evidence for denial that  were  there when the Board last denied the request are still in place today.  She noted the biggest concerns are for safety, traffic, and environmental issues; there has been no evidence to suggest an increase in density is justified on any of the property; and there has been no evidence to suggest an increased stormwater load on an already over built area that is in a designated flood zone is a good idea. 

 

Jack Kirschenbaum stated taking Gwen Heller’s and Ryan Rusnak’s advice, Mr. Zajdel met with Todd Corwin on July 19, 2004; Mr. Corwin was the head of the Comprehensive Land Use Development Department; Mr. Corwin not only discussed the property and reviewed the Future Land Use Maps with Mr. Zajdel, but gave him the County Comprehensive Land Use Policy 5.4; and Policy 5.4 is a Brevard County Policy which states in part, “Lands which are privately owned and zoned EA, or so designated by an approved binding development plan, shall be designated as Private Conservation.  Such privately owned land shall permit a maximum residential density of one unit per 10 acres.”  He stated knowing the property was zoned GU and being aware of Policy 5.4, Mr. Corwin represented that the property should not and could not be subject to a private conservation future land use, as it was not zoned EA and was privately owned; and Mr. Corwin therefore concluded and represented to Mr. Zajdel that the conservation future land use on the property was an error and that he and Brevard County would fix the mistake, and that the County would, at its expense, cause any conservation future land use on the property to be removed.  He stated Mr. Zajdel spent thousand of dollars working on the development plans and surveys and wetland delineations the Board requested him to do; in July 2006 Mr. Zajdel filed the Vested Rights application; and two years later, the Special Magistrate rendered a decision.   He noted the Board spent approximately $40,000 on outside counsel; and the Special Magistrate wrote an 18-page Findings of Fact; and Mr. Zajdel would not have bought the property if Mr. Corwin had not said the maps were wrong.  He stated he disagrees with Chairman Scarborough when he earlier said to Attorney Knox that the purchase price cannot be considered. 

 

Chairman Scarborough stated on Page 22 of the Finding of Fact, the Special Magistrate goes into some detail as to how he construed that particular provision as to what can and cannot be considered expenditures in reliance.  Mr. Kirschenbaum stated the Findings of Fact do not go to Page 22, and he was referring to Page 19.  Chairman Scarborough stated it is only the Conclusion of Law that he can look at because he agrees with Mr. Kirshenbaum that the Findings of Fact have to be accepted by the Board.  Mr. Kirshenbaum stated the first 19 pages are Findings of Fact; and after that are Conclusions of Law, and Chairman Scarborough’s statement was that the purchase price cannot be considered, and he disagrees with that.  Chairman Scarborough advised he has the authority under the Board’s Ordinance to disagree on the Special Magistrate’s interpretation of the law as he sets forth on Page 22; and the Special Magistrate clearly sets forth that there could be two alternative interpretations.  Mr. Kirshenbaum stated in his view it can be considered; whether or not it is a cost expense that falls under the Statute is one thing; but it can be considered because it deals with fairness and equity. 

 

Commissioner Voltz inquired why the Board is only just now getting the 22-page report; and she has not had a chance yet to look at it.  Attorney Knox stated what the Board received was a summary in the Agenda packet. 

 

Mr. Kirschenbaum advised the first legal conclusion is that but for Mr. Corwin and others on staff telling Mr. Zajdel what they told him and showing the mistaken maps, there would have been no purchase and no other expenditure; the second conclusion is there is no question Mr. Zajdel relied on the maps in good faith to change his position; and Mr. Zajdel did substantially change his position in reliance on the acts of the Planning and Zoning staff.  He stated the finances have to be considered and there has to be a substantial expenditure; he submits the evidence of $12,000 is that; but his argument is that the entire change of position has to be looked at.  Chairman Scarborough inquired where the $12,000 in expenses occurred. Mr. Kirshenbaum replied in one element it was Bill Kerr and his wetlands study that was requested by the County; it was surveying bills; it was Mr. Rusnak and other development expenses that are incurred; and all those bills are in the record and were exhibits in the trial.   Chairman Scarborough inquired if the expenses occurred after Mr. Zajdel knew there was a problem.  Mr. Kirshenbaum replied no; the Board told Mr. Zajdel that it would fix the mistake and all he had to do was get a leveling survey, which he did.  Chairman Scarborough stated the act of reliance has to be before the problem is identified; after trying to rectify and establishing the rights, that is not a good faith reliance because all of a sudden the problem is identified.  Mr. Kirshenbaum stated Mr. Corwin told Mr. Zajdel the County would fix the problem at no expense to him and Mr. Corwin set in motion a Comprehensive Land Use Plan Amendment; and when it came before the Board it would say it would fix the problem if Mr. Zajdel would show the Board where the wetlands are located.  He noted Mr. Zajdel spent a lot of money on that one element and came back before the Board to fix the problem. 

 

Commissioner Nelson stated Exhibit 46 states, “This is the first time attempted by the County to transfer information on applicant’s Exhibit 46.”  He stated it is his understanding that Exhibit 46 did not occur until Mr. Zajdel got into the Vested Rights discussion; and in other words, how could the Board match that map, which was not even created in 2004.  Mr. Kirshenbaum stated the map in Exhibit 46 did exist in 2004; what it says is that Exhibit 20 was admitted into evidence as the County’s exhibit; and Exhibit 20 is a computerized digital future land use map, which is dated July 18, 2004, and Exhibit 46 was in existence since 1988.  Attorney Knox advised the evidence did not support that conclusion; there is evidence to the contrary that he reviewed and there was much testimony that the subject map is the official map of the County as of 2001; and what happened was Mr. Corwin decided to authorize a change to that map, and it matches Exhibit 46.  Mr. Kirshenbaum stated the discussion is irrelevant because it challenges the Findings of Fact.  Attorney Knox stated that is not true because the Findings of Fact have to be based on substantial competent evidence.  Commissioner Nelson stated the difference is that the line that was on the map did not occur until this meeting; in other words, there was a line on the base map that was from the 1988 map, but the actual line that was drawn on there was drawn by someone for you at the time of the Vested Rights.  Mr. Kirschenbaum stated that is not true because he knows of no one associated with him who drew lines on a map.  Commissioner Nelson stated it is the applicant’s exhibit.  Mr. Kirshenbaum stated Mr. Zajdel did not draw a line on the map.  Commissioner Nelson stated the recommendations say that all property east of the mosquito control berm line, which is upland from the wetlands area, and shown as a green line on the map; and inquired if Mr. Kirshenbaum is aware that the berm and the green line are not the same.  Mr. Kirshenbaum stated the berm is a curved line that follows the ancient shoreline.  Commissioner Nelson stated the two maps do not match.   Mr.  Kirshenbaum  stated  he  cannot  answer that question as  he does not have the documents;  and there were hundreds of documents that were submitted.  Commissioner Nelson stated the map was used for the final recommendation; and the point is the maps do not match. 

 

Commissioner Colon inquired if Planning and Zoning Director Robin Sobrino can share with the Board some of the history of the item.  Ms. Sobrino stated some of the history has already been outlined; one of the points that was not brought up in Mr. Kirshenbaum’s summary of events was that following the meeting that Mr. Zajdel had with the County in August 2004, Mr. Kirshenbaum stated that Todd Corwin had said he would make changes to the map and do whatever was necessary at no charge to the applicant; but typically, staff does not offer to make changes free of charge unless there is Board authorization behind it.  She noted there was a point of conversation that had transpired in an October 2004 Board of County Commissioners meeting; Mr. Kirshenbaum has indicated that after Mr. Zajdel met with Mr. Corwin and allegedly Mr. Corwin said he would fix the map, that a Small Scale Plan Amendment came forward in 2006 that the Board did not accept.  She stated there was a meeting in October 2004, which would have been approximately two months following Mr. Zajdel’s meeting with Todd Corwin; and at that Board meeting, staff brought forward a question to the Board asking for clarification as to the wording in the Comprehensive Plan.  She stated because there was concern regarding the fact that there may have been upland areas that may have been designated as Private Conservation, he brought the item to the Board and said he was seeking direction as to if the Board believed upland areas should be included in Private Conservation, or should only wetland areas be Private Conservation; and at the October 2004 Board meeting, the Board ruled that uplands should not be part of Private Conservation; and at that time the Board directed Mr. Zajdel to get a wetland survey so that the County could ascertain what might be wetlands versus what might be uplands so that the County would have a proper survey so that staff could go forward with a Comprehensive Plan Amendment at the County’s expense in order to make sure the line demarcating Residential from Private Conservation was properly drawn on the map.  She stated that happened in October 2004, which was two months after Mr. Zajdel purchased the property; in 2006 Mr. Zajdel came back with a wetland survey; and at that time staff brought forward a Small Scale Plan Amendment to add in approximately three acres of land that by way of the survey, indicated it was primarily upland; and at that time the Board turned down the Small Scale Plan Amendment.  She stated she wanted to make sure the facts were clear in that regard.  She stated if the Board looks at Exhibit 46 that the Special Magistrate has basically used as the line of delineation in the recommended order, it does include a hand drawn green line that was overlaid on top of an enlarged Future Land Use Map that the applicant had submitted as part of his exhibits; and during the testimony at the hearing one of the applicant’s witnesses did place the green line on the map, and that was part of the proceedings at that time.

 

Commissioner Voltz stated earlier in the meeting the Board indicated that citizens should go to staff to ask for direction; now here is someone who did go to staff and was told the wrong thing; and the bottom line is staff made an error and when it came back to the Board it was decided there was an error made and it wanted to make sure the wetlands were clearly delineated; and when it came back to the Board it was turned down.  She inquired if the Board reverses the Recommended Order, where does Mr. Zajdel go from here.  Attorney Knox stated if the Board decides not to grant the Vested Rights, the next step is to  have  its  own  order  presented  to  it within 30 days; and the Board would have to direct him to go back and draft an order supporting its decision.  Commissioner Voltz inquired if it would be another Findings of Fact; with Attorney Knox responding no, the Findings of Fact will not change.  Attorney Knox advised there are some issues about whether the Findings of Fact are supported by competent substantial evidence; there have been three County employees testifying that there were official maps in 2001 that were GIS maps that were reflected as Exhibit 20 in the record; Exhibit 20 showed Public Conservation, and that was a mistake; but Mr. Corwin cannot tell the Board it is going to correct a mistake; and Mr. Corwin cannot tell someone else that the Board is going to correct a mistake.  Commissioner Voltz noted the Board agreed with Mr. Corwin.  Attorney Knox stated he has no doubt the Board would change the map from Public Conservation to something else if that was presented to it; but that is not what was presented to the Board; and what was presented to the Board was a change that Mr. Corwin made to the map. 

 

Chairman Scarborough stated if the Board approves the Recommended Order, it would destroy the Vested Rights process in the County because there are certain things that give rise to vested rights and there are certain things that do not; and the Board has been told that the only thing it can consider is an alternative view of the law.  He stated the Special Magistrate states, “The County may well decide to deny the Vested Rights”; and what leads him to that is if the land acquisition costs are not to be considered.  He stated he will not support the item.  Chairman Scarborough passed the gavel to Commissioner Bolin.

 

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve reversal of the Special Magistrate’s recommendation granting the applicant’s Vested Rights petition and record.  Motion carried and ordered; Commissioner Voltz voted nay.

 

 

 

Commissioner Voltz stated she supports the $1.00; but she received a notice last week to register her pet and the $1.00 is already in effect; and the Board has not yet approved of the increase; and inquired what would happen if the Board decided not to increase the fee.

 

Animal Enforcement Director Craig Engelson stated basically, the Board previously approved the fee increase; and what the Board is doing today is authorizing the Chairman to sign the Fee Resolution.  Commissioner Voltz stated she does not think there should be fee increases before the Board finalizes everything. 

 

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt Resolution amending the Animal Services and Enforcement Tag Fees effective October 1, 2008 as follows:  1.) Increase Animal License Tag fees for dogs and cats less than one year old, or more than one year old and altered, from $9.00 to $10.00; and 2.) Increase Animal License Tag fees for dogs and cats more than one year old and unaltered from $15.00 to $16.00.  Motion carried and ordered; Commissioner Nelson and Commissioner Bolin voted nay. 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to accept grant funding provided by the St. Johns River Water Management District and the Indian River Lagoon National Estuary Program to support facilitation and goal development for the Brevard County Comprehensive Maritime Management Master Plan; authorize the Natural Resources Management Director to execute a Standard Grant Agreement subject to review and approval of County Attorney and Risk Management; and authorize budget change requests as necessary.  Motion carried and ordered unanimously.

 

 

 

Commissioner Nelson stated his concern is that the site plan has been extended several times; it has been over three and a half years; a lot of things happen in the Code in that period of time; and he thinks it is a bad precedent to continue to consider it.  He noted it is a financial issue, which is not one of the considerations the Board should be making; it should be based on other factors; and he does not support it. 

 

Motion by Commissioner Nelson to deny the Site Plan Extension for The Villages.  Motion died for a lack of a second.

 

 

Permitting and Enforcement Director Ed Lyon stated the project has received approval; the Code outlines that once it is approved, it is good for three years; building permits must be obtained in that three year period; and if building permits are not obtained, the developer can request an administrative extension at the staff level once, and then anything else beyond that one, six-month extension has to come back before the Board.  He noted if the Board were not to approve the request, the developer would have to start from scratch and resubmit; but one advantage to that is it would be good for another three years.  Commissioner Colon inquired what would be the cost; with Mr. Lyon responding approximately $5,000, but he does not have the exact amount.  Commissioner Colon inquired if the reason for the extension is for financial reasons.  Mr. Lyon replied according to the letter from the project owner, there are financial issues, such as trying to get clientele for the businesses; and a building permit has not been submitted for anything. 

 

Commissioner Bolin inquired if there would be any major changes if the developer had to start from scratch tomorrow; with Mr. Lyon responding the only Code he is aware of that had any large scale changes would be the Natural Resources Landscaping Code.  Mr. Lyon noted the Site Plan Ordinance has changed slightly, but he does not think it would be anything that would cause the developer to do a large re-design. 

 

Commissioner Nelson stated the developer has had three years to submit a building permit; it is extremely optimistic for the developer to think it is going to the mortgage funding lined up and get a building permit in place; and there a changes in the Building Code as well that the developer is going to need to deal with.  He advised his concern is that the developer is going to be back before the Board in six months; three years is a long time, and he does not see any progress.

 

Commissioner Voltz stated with the times the way they are, the Board should give its citizens every opportunity to do as much as they can.  Commissioner Colon inquired how long the extension would be good for; with Mr. Lyon responding the extension would be good for six months.  Commissioner Colon stated at that point the Board would not approve another extension if there has not been good faith on the part of the developer.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant a waiver of Section 62-3204(h)(3) to allow a third, and final, six-month extension for the expiration date of an approved site plan for The Villages to allow the applicant additional time to begin construction of the project, from September 23, 2008 to March 23, 2009.  Motion carried and ordered unanimously.

 

 

Commissioner Nelson stated there are different versions of MSBU’s; some are for road paving, and in those circumstances everyone is in agreement at the beginning of a project; and if someone does not pay, it could force the sale of a home.  He advised in an MSBU for roads, water lines, or other types of MSBU’s, it is 66 percent and someone could be forced to pay for a water line they do not want and they could lose their home; and he has a problem with a methodology that could lead to the loss of a home of a senior who did not want an MSBU in the first place and did not vote for it. 

 

Commissioner Voltz stated the County will get in the same situation that the City of Palm Bay is in right now because it does not enforce any of its MSBU’s.  Commissioner Nelson stated the difference is that it is a lien on a property; and at the point a property is sold, it gets cleaned up; but someone will be taxed out of their house, and that is the difference.  He advised he is comfortable with a lien because people need to be responsible, but he does not know that he would want to see someone who did not want the improvement in the first place end up potentially losing their property. 

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve the continuation and modifications to Board Policy BCC-53, Municipal Service Benefit Unit (MSBU).  Motion failed with Chairman Scarborough, Commissioner Colon, and Commissioner Nelson voting nay.

 

 

Commissioner Nelson stated he would like to direct staff to go back and look at the policy again; if there is a mechanism where everyone in advance of paying for an MSBU is in agreement, then that is fine because they knew what they were getting into up front; but when there is a circumstance where an MSBU was created after the fact, he is comfortable with the lien process that has been used previously; and in other words there could be a two-step process where certain types of MSBU’s could be identified versus other types of MSBU’s. 

 

Assistant County Manager Mel Scott inquired if Commissioner Nelson is saying that if there is a 100-percent agreement, the County will use the uniform method of collection; and if there is not 100-percent agreement, then the County will use the lien methodology.  Commissioner Nelson advised that may be what the Board has to do; with unpaved road agreements, those folks are getting permits, which is a benefit for them; but with other types of MSBU’s he does not think the Board should place the burden of loss of property. 

 

County Manager Peggy Busacca stated if that is the Board’s desire, then staff can add that language and have the Board approve it, without it having to come back to the Board. 

 

Ms. Busacca stated staff will reschedule the item for a future agenda.

 

The Board took no action on the continuation and modifications to Board Policy BCC-53, Municipal Service Benefit Unit (MSBU). 

 

 

 

Commissioner Nelson inquired if there is a way to allow the contractors to begin moving forward on certain items. 

 

Assistant County Manager Stockton Whitten stated staff would prioritize three items, which are the dugout drain, the replacement of damaged sidewalks, and the pedestrian bridge repair; and those are staff’s top three items.  He noted the most time sensitive items would be dugout drainage and the bridge repair; and the other items can wait two to four weeks.  Commissioner Bolin stated in regards to the dugout drainage, the County had historic rainfall; and inquired if the dugout was flooded at that time.  Mr. Whitten advised the stadium fared very well during Tropical Storm Fay.

 

Steve Quickel, Facilities Director, stated there was some flooding in the dugouts throughout the year, but with previous rains there has been extensive flooding; and it has to do with the drain lines being inadequate to carry the water away.  He stated there is an issue with flooding that needs a permanent solution and the only way to solve that is to do some serious work to the drains; and the floor in the dugout also gets damaged when it is flooded.  He stated the repairs are things that take time to be completed; in the past, staff has gone beyond the 11^th hour and found itself short on getting things done; and this year, staff is trying to get a head start.

 

Mr. Whitten stated if the Board gave permission for staff to proceed with the top three repairs, then the others could be at the Board’s discretion. 

 

Commissioner Bolin stated she is trying to be careful on any more expenditures.

 

Motion by Commissioner Bolin, seconded by Commissioner Colon, to table Item III.C.15., Space Coast Stadium Capital Improvements, to the October 14, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

Commissioner Voltz stated she understands the State approves of the project, but spending any money in the current financial situation is not a good idea; and she is not going to support it.

 

Commissioner Bolin stated it is her understanding that it is a grant and just approval to be able to submit the grant; and there is no guarantee the Board is going to be awarded the grant. 

 

Mike Knight, EEL Program Manager, stated there is no guarantee the Board will be awarded the grant; if the Board was awarded the grant, staff was very clear in its documentation that before the Board could permit to providing the match, those lands that were being considered have to go through the same process that any other property would go through within the structure; and they would have to go through appraisals, through the Selection Management Committee process, and would have to come to the Board; and if the Board decided it was not the right time to move forward on an acquisition, then staff would not move forward.

 

Chairman Scarborough stated if the Board does not support the item it will not get the grant money; but if it does support the item the next Commission will be making the decisions; and the current Board would be taking an option away from the future Board if it does not allow it to have it.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Coastal and Estuarine Land Conservation Program (CELCP) Grant proposal allowing the EEL Program to partner with Florida Department of Environmental Protection (FDEP), through the National Oceanic and Atmospheric Administration (NOAA) to acquire lands in the Indian River Lagoon Blueway Project area; and authorize the County Manager to execute any other standard documents and amendments required by the CELCP grant for the acceptance of grant funds contingent upon County Attorney and Risk Management approval.  Motion carried and ordered; Commissioner Voltz voted nay.

 

 

County Attorney Scott Knox advised it is important that the Board look at the issue as to whether it can have a staff member commit the Board of County Commissioners to amend the Land Use Plan, because that is, in effect, what Todd Corwin did; and the Board needs to address the issue, as well as the other issues.

 

Commissioner Voltz stated the citizens do not know that; and it is irrelevant because the Board is talking about him or anybody else that could come along. 

 

Chairman Scarborough stated sometimes the Board asks the County Attorney’s Office to come back with a Finding of Fact; and inquired if the motion to reject the Special Magistrate’s recommendation was sufficient.  Attorney Knox stated if the Board wants to direct him to come back with a specific basis, then he can do that.  Chairman Scarborough stated it might be wise; and in reading the last two pages of Mr. Capps’ opinion, he gave the Board the option; and the Board can go the other way.  Commissioner Voltz stated the Board can go the other way on all of them.  Chairman Scarborough stated the Board cannot because sometimes the legal options are not set out in that clear a format where surely the County could go one way and not another.  He stated the nature of the opinion clearly set out that if the Board read the Vested Rights Ordinance a particular way, it should deny the Vested Rights.

 

Attorney Knox stated there is a difference between a County staff member looking at a map in 1988 and saying a line could be moved somewhere else, and then coming back in 2001 when there is a site specific that says it is public conservation and can committing to the individual that the staff member will go to the Board and the Board will change it.  The only way that can be done is through a plan amendment and that is a statutory procedure, and no one can commit the Board to do that.  Commissioner Voltz stated she agrees, but she does not think the Board should assume the general public knows that staff does not have that ability.  Attorney Knox stated if the Board wants to make that case, then it should put it in the Ordinance.

 

 

 

Upon motion and vote, the meeting adjourned at 2:51 p.m.

 

 

 

ATTEST:                                                                     ___________________________________

                                                                                    TRUMAN SCARBOROUGH, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)