MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

September 1, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on September 1, 2009 at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Interim County Manager Stockton Whitten, and County Attorney Scott Knox. 

 

 

The Invocation was given by Reverend John Denmark, First United Methodist Church of Melbourne.

 

Commissioner Robin Fisher led the assembly in the Pledge of Allegiance. 

 

 

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to approve the February 24, 2009 Special Meeting Minutes; April 14, 2009 Regular Meeting Minutes; and July 31, 2009 Special Meeting Minutes.  Motion carried and ordered unanimously.

 

 

Interim County Manager Stockton Whitten advised there are employees who have achieved 25, 30, and 35 years of service with Brevard County; and the Board presented plaques to the following: Ronald Baxter and Scott Wallace, Parks and Recreation Department, Charlie Burton, Public Works Department, and David Hancock, Central Services Office, for 35 years of service; Laverne P. Wimberly, Animal Services and Enforcement, William Banks, Central Services Office, Dennis Neterer, Fire Rescue Department, Kathryn Patterson, Office of Human Resources, Patricia Portnowitz, Library Services, and Nathaniel Knight, Solid Waste Management, for 30 years of service; and William McDaniel, Library Services, and Rick Stump, Parks and Recreation Department, for 25 years of service.

 

 

George Lovett, Director of Transportation Development for Florida Department of Transportation (FDOT) District Five, stated he wanted to talk a little bit about the State Program, where there are several projects it is awarding this month; also the status of the County Program; and Assistant County Manager Mel Scott has inserted in the
Board’s package a memorandum with status on the County Projects as well.  He stated FDOT has awarded a contract for the widening of I-95 from Palm Bay Road to Malabar Road; it is a six-lane project, which FDOT has been working on for some time; the bids were exceptionally good; the estimate was $38 million for the Project; and the low bidder was $21 million.  He advised a groundbreaking will be scheduled sometime towards the end of this month, if not the first week of October; all of the Commissioners will be invited to attend; they will work through the County Manager’s Office in getting the Board some information; and FDOT’s Public Information Officer is looking for places on the project sight that is appropriate and accommodates a large crowd.  He noted the I-95 Project is a project that the State of Florida picked as one of its showcase projects; Federal Highway Administration asked each of the States to identify a project that could go early in the economic stimulus, a large project that had a lot of regional benefit; and certainly the FDOT feels like widening I-95 is a critical project for economic development, not just in Brevard County but along the entire East Coast.  He stated there are a series of projects; and many people have been driving through them on I-95, so he is sure people are very aware of some of those projects.  He advised the other four projects in the State of Florida, the total about $170 million, will all be awarded during the month of September; there is a nine-county district, there are five projects in five different counties, and those jobs will be awarded later this month.  He stated he wanted to brag on Brevard County’s staff; different approaches were taken by the different counties; when FDOT allocated funds to each of the counties and asked the MPO’s to identify some projects, by comparison Osceola County got about the same amount of money as Brevard County, they elected to do three major jobs all to be produced and led by the County staff; in Brevard County there are 29 projects, and 13 different local governments working on these projects; staff has picked up the work for several of the local governments; and staff is producing 13 of those 29 jobs.  He advised that is quite a challenge to produce that many jobs; it is an awful lot of work going through the Federal process and State process; and Mr. Scott’s memo reflects that 12 of the 13 projects that County staff is working on is ahead of schedule.  He noted it is very difficult with estimates and this number of projects; these were all shovel-ready projects; they had to work quickly in putting construction cost estimates and engineering cost estimates together trying to match it up with the available funds to try to allocate the funds equitably amongst the local governments; they have worked with staff on ways to make sure that if there are low or high bids on some projects, that money can be moved from one project to the other; unfortunately, it is fairly bureaucratic and requires work program amendments to the FDOT work program that involves the Governor and Legislature; and it takes about 30 days to do that.  He stated the State is making sure it works with staff to make sure there is language in the bids that allow it to make sure all of those projects are covered; and hopefully, beginning the process of identifying some additional projects in case there are low bids.  He stated FDOT had two local government projects that were bid this week, and both of them, much like the FDOT Project, were almost 50 percent below the cost estimate.  He advised he appreciated the work of Public Works Director John Denninghoff and his staff in working with FDOT; the relationship that has
been developed through the years between the FDOT staff and County staff really pays
dividends; but there is a lot of work yet to do; Brevard County has taken a greater role than any of the other nine counties that FDOT works with; and it is very pleased with the progress being made.  He explained FDOT is very excited about the job creation that will come from the Program; that has really been the emphasis for Congress passing the Program to begin with was to create jobs; by dividing the projects up and sharing them fairly broadly within the County, the County is doing the right thing in terms of job creation by doing a bunch of smaller projects; but it is a significant burden to staff.  He stated there has been some things in the press about how the State of Florida was a little bit slow out of the box in spending some of the economic stimulus dollars; some of that is due to the fact that Florida’s Legislature requires it to do work program amendments to add projects; it is about a two-month process after the projects were selected using the MPO’s before they can actually begin to go through the Federal process; and it was the Statutory requirements on the work program.  He advised the State of Florida at this point has 80 percent of its projects that are obligated and ready to go to bid; and now Florida is leading the Nation in terms of putting those projects out on the street. 

 

Chairman Nelson stated beyond the stimulus work, the relationship with FDOT is just terrific; the County is able to talk to it on any of the issues; there are more partnerships where there are cost-sharing projects during difficult times; and the Board appreciates FDOT working with the County on a variety of different issues.  

Chairman Nelson read aloud a resolution commending Jan C. McLarty for her 35 years of service with Brevard County.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to adopt Resolution commending Jan C. McLarty for 35 years of services to Brevard County.  Motion carried and ordered unanimously.

 

 

Jan C. McLarty stated she wanted to thank everyone that she worked with; she never would have guessed that she would have worked with people who work as a team; the County is a different environment; in a lot of cases a person cannot think ahead because things just come at he or she; and she appreciates working with staff and Human Resources in preparing for her retirement.  She stated she appreciates the Board for the job that it has; it is not an easy job as it is a big challenge; all of the Commissioners are in her prayers; and she will not forget her career. 

 

 

Commissioner Bolin read aloud a resolution recognizing Commodore John Barry Day.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution proclaiming September 13, 2009 as Commodore John Barry Day in Brevard County, in honor of his memory and in recognition of the sentiments of the Navy veterans, Irish-Americans, and the patriotic population that our history be properly told.  Motion carried and ordered unanimously. 

 

 

Colonial Pat King stated he is the Chairperson of the Commodore John Barry Day celebration, which is held on September 12, 2009 at Jetty Park; the last battle of the War of Independence was fought just 12 miles off the coast of Jetty Park; with that in mind, he has a special invitation for Chairman Nelson; and he hopes he can be the special guest.

Commissioner Bolin read aloud a resolution recognizing Rockledge Little League’s Major Division All-Star Baseball Team.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution congratulating and commending the Rockledge Little League’s Majors Division All-Stars, and commending Manager Dan Dennis and Coach Mike Spinneweber and all those who have devoted time and effort toward their success.  Motion carried and ordered unanimously. 

 

 

Coach Dan Dennis introduced his son Austin Dennis, Anthony McPartland, and Sam Hill; stated he thanked the Board for recognizing the team for its efforts; and they are very proud to be representing Brevard County and the City of Rockledge.

 

Chairman Nelson stated on a Saturday he was listening to Marshall radio because they were live-streaming the broadcast and he listened to the game; and the team did a great job.

 

 

Interim County Manager Stockton Whitten stated he would like to move Item III.D.3, Permission to Advertise, Re:  Economic Development Recovery Zone Designation Ordinance, and Item III.D.5, Approval, Re:  Employee Innovations Program, to New Business on the Agenda for discussion.    

 

 

Commissioner Bolin stated yesterday was the grand opening of the Wickham Senior Center; Dr. Beech came down for the ribbon cutting; there was a great crowd; and it is a beautiful facility, which will be well used.

 

 

Commissioner Anderson stated he believes all of the Commissioners have been contacted by representatives from NEMA who are trying to do an economic development boost in South Brevard County by building another facility; their request was to ask staff to go back and revisit the Impact Fee Moratorium issue regarding the 25,000 versus the 20,000 square footage; it is 25,000 square footage in the Ordinance now, and they requested the Board revisit that; the 25,000 square foot was suggested by staff; and he does not even remember how the Board got there.  He stated he does not know if it is something the Board wants staff to go back and look at and reevaluate or not, but he told the representatives of NEMA, since they are a good community partner, that he would bring it up to the Board.

Commissioner Bolin stated the 25,000 square footage was just a compromise that the Board was jumping around with a lot of different sizes of a building; and so she has no problem if the Board revisits to consider going to 20,000 square foot versus 25,000 square foot.

 

Chairman Nelson inquired what the process is to amend the Ordinance; with County Attorney Scott Knox responding there is a pending amendment today; stated the Board could continue that and re-advertise with the new additional amendment, or it can just go through with today’s amendment and do a second amendment to it later; and it is one public hearing.  Chairman Nelson stated it would be his preference to deal with the amendment today and deal with the other amendment separately.

 

Commissioner Fisher stated he thought they had an issue on the timing as well.  Chairman Nelson advised the square footage drives the timing; in other words, they cannot be complete before the one-year period is up; they were looking for the timeline that was granted for the 25,000 square feet; and if the Board changes that, then they should be able to be finished.   He stated he would like sort of a staff report to see if the Board could maybe detail some kind of rationale between the 25,000 and 20,000 square footage that gives the Board at least an understanding of how many buildings it may be looking at; his biggest fear that it is 20,000 square footage today, and the next one comes in at 18,000; and he would almost be inclined to look at keeping the 25,000 square footage, and then on a case-by-case basis determining if the Board will waive that for a specific project.

 

Commissioner Anderson stated he thinks that is a good compromise; and inquired if there will be an issue with putting a waiver provision for a case-by-case basis.  Attorney
Knox advised there are ways that could be done to obviously set some standards as to who qualifies and who does not.

 

Chairman Nelson stated if the Building Department looks at it and says the difficulty and complexity of a building for the square footage takes more time, it can then be evaluated. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to direct staff to advertise a public hearing to consider a proposed Amendment to the Impact Fee Moratorium Ordinance, allowing the Board to consider construction projects at 20,000 square feet, as opposed to 25,000 square feet; and direct staff to prepare a report on the rationale between the square footages.  Motion carried and ordered unanimously.

 

 

Chairman Nelson inquired if there are any items to be pulled from the Consent Agenda.

 

Commissioner Bolin stated she would like to pull for discussion Item III.D.1, Approval, Re:  County Commissioners Schedule.

 

Commissioner Infantini stated she would like to pull Item III.A.3, Approval, Re:  Surface Water Working Group Extension; Item III.B.2, Approval of Revisions, Re:  Procedure BCC-74, Unsolicited Materials; and Item III.C.4, Appointment, Re:  Educational Facilities Authority from the Consent Agenda for discussion.

 

Chairman Nelson advised he has a speaker card from the public on Item III.C.2, Award of Bid #B-3-09-99, Re:  Hollywood Boulevard and Henry Avenue Intersection Improvements.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to approve an Interlocal Agreement with the City Titusville for cost-share funding for the Area One Watershed Stormwater Improvements Project; authorize the Chairman to execute the proposed Agreement on behalf of Brevard County; authorize conveyance of titles or quite-claim deeds to the City for the Coleman Ditch and other drainage systems that the City will assume maintenance of as shown in Attachment A, Exhibit A; and authorize budget change requests as necessary.  Motion carried and ordered unanimously. 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to continue Option Agreement for Sale and Purchase between Brevard County and Pulte Homes, Inc. for Fortenberry Regional Stormwater Treatment Project, until September 15, 2009.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize Public Works Director John Denninghoff to issue a letter accepting transfer, subject to the limitations and conditions outlines in the Agenda Report, of the St. Johns River Water Management District permit from the Sawgrass Land Development Company for the constructed portion of Brisbane Boulevard Extension from the intersection of Pineda Extension and Estuary Boulevard to Brisbane Point Subdivision.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to execute Joint Facilitation of Public Infrastructure Agreement with The Viera Company to provide for the County’s acquisition of various small parcels of land, on a fee simple and easement (both temporary and permanent) basis, to provide sufficient public right-of-way for the Wickham Road Widening Project, and to otherwise facilitate the construction of the Wickham Road Widening Project by the Developer at the Developer’s sole cost and expense.  Motion carried an ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to accept the Right-of-way Deed from A. Duda & Sons, Inc., and waive the title insurance and the Phase I Environmental Assessment for the Pineda Causeway Extension, located in Section 26, Township 26 South, Range 36 East.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to accept two Perpetual Easements from Indian River Colony Club, located in Section 3, township 26 South, Range 36 East.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to approve Procedure BCC-73, Library Materials Selection, which establishes guidelines and selection criteria for Library materials added to the collections.  Motion carried and ordered unanimously.   

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to approve the use of $160,000 fines and fee monies from the Merritt Island Public Library for part of the Library’s building renovation project that is presently underway.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to adopt Resolution amending the Brevard County Library System schedule of fees and charges for overdue, damaged, or lost library media and other library services.  Motion carried and ordered unanimously. 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize the Chairman to execute the previously approved contract for services with no-cost changes requested by the investment advisor, PFM Asset Management LLC.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to exercise an option for extending the existing Agreement for Debt Collection Services with NRA Group, LLC, d/b/a National Recovery Agency, with term beginning November 1, 2009 and expiring on October 31, 2010; and authorize the Chairman to execute the Amendment to Agreement. 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize staff permission to use its previously Board approved Continuing Construction Management (At Risk) Contract for construction of a new storage building for the Road and Bridge Department, Valkaria; and authorize the Chairman to sign said Contract. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize the Financial Advisor and Board Counsel to prepare Loan Authorization Resolutions and related documents, and solicit proposals from local banks to finance the repair and renovation of utility improvements for the Barefoot Bay Wastewater Treatment Plant and potentially refinance other existing County obligations for debt service savings.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to appoint Alan Bergman to Community Action Board, with a term expiring December 31, 2009; and Dr. Wasim Niazi to Titusville-Cocoa Airport Authority, with term expiring July 14, 2012.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to approve bills and budget changes, as submitted.  Motion carried and ordered unanimously.

 

 

John D’Amico, Deputy Mayor with the City of West Melbourne, stated this is something the Board knows that has been plaguing the Cities of Melbourne, West Melbourne, and Palm Bay, because of the safety problems at the corner of Hollywood Boulevard and Henry Avenue; it was a delight to see that the Board is about to approve, hopefully, the money to correct this problem; and he is present to thank the Board and everyone involved for all of the work done on this project.  He advised this is a great present to the City of West Melbourne as it is its 50^th Anniversary.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to award Bid #B-3-09-99 for Hollywood Boulevard and Henry Avenue intersection improvements to the lowest, most responsive, qualified bidder; and authorize the Chairman to execute the Contract, subject to review by the County Attorney’s Office and Risk Management.  Motion carried and ordered unanimously.  

 

 

Commissioner Infantini stated her only concern with extending the Working Group is the Board is going to be going over the Comprehensive Plan in October; and she wanted to make sure the Group had all of its recommendations in place before going over the Comprehensive Plan.

 

Ernest Brown, Natural Resources Management Director, stated that actually may work out nicely because staff may get further direction from the Board to pursue changes in the Comprehensive Plan should that be the Board’s desire, because this particular Working Group only addresses the Ordinance itself, not the Comprehensive Plan associated with it; and staff needs to receive guidance in October as it relates to any clear direction from the Board relative to the Comprehensive Plan may assist this group in furthering the end game.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to approve extension through March 2010 for the Surface Water Working Group (SWWG).  Motion carried and ordered unanimously.

 

 

Commissioner Infantini inquired if there will be a consistent policy for how to approve unsolicited materials, because she thinks there may be a little bit of inconsistent policy from library to library; and stated she wants to make sure there is a consistent application of what is allowed and not allowed.

Catherine Schweinsberg, Library Services Director, advised they try to do that; they never know what is going to be placed in their hands to approve; but they try to maintain that consistency.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve Procedure BCC-74, Unsolicited Materials, which provides guidelines for the display of unsolicited materials in Brevard County Library System.  Motion carried and ordered unanimously. 

Commissioner Infantini stated she needs to abstain from voting because she has a conflict of interest with the Florida Institute of Technology.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to appoint Barbara Wall to serve on the Education Facilities Authority, with term to expire December 31, 2009.  Motion carried and ordered; Commissioner Infantini abstained.

 

 

Commissioner Bolin stated she pulled this item because she wanted to go over the calendar; looking at the month of November, there is a regular Board meeting on November 10, 2009, the Organizational Meeting is November 17, 2009, which are consecutive Tuesday’s; currently on the schedule that November 24, 2009 there is another regular meeting; and the following Tuesday, December 1, 2009 there is a regular meeting.  She stated she proposed that the Board cancel the meeting of November 24, 2009.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to approve moving the November 24, 2009 Organizational meeting to November 17, 2009 at 9:00 a.m.; and cancelled the November 24, 2009 Regular meeting.  Motion carried and ordered unanimously. 

 

 

James Sondet stated as the Board knows there are laws and they are supposed to be for the citizen’s protection; people are all subject to them; sometimes they feel they are unfair; and often time’s people feel they are unconstitutional.  He stated he, on occasion, has to tend to some business on the second floor of a building; at the end of the business he went down a set of stairs; he tried to get out of the building and the set of stairs lead him to a darkened room; but he could see an exit sign about 80 feet away.  He advised he went towards the exit sign and went through a set of double doors only to come to another set of double doors that were locked; he knows it is a law that an occupied building should not have locked exits; and he proceeded to go back where he
found a door that did take him outside.  He stated this was located at 2725 Judge Fran Jamieson Way, Viera, to be more exact it is Building C; and to be more specific, it is this very room that is out of compliance.  He advised the citizens are held to be compliant; this is a safety issue; he was not the only person there as there were two other people with him; and this shows that a person call cannot be in compliance all of the time.  He stated the Board needs to lay-off on people a little bit.

Jerry Brinegar stated he wanted to talk about abusive Code Enforcement; he understands the Board is going to have a Workshop to discuss this; but this is just a good way to keep the Board reminded of it.  He stated he wanted to quote George Washington, “Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.”  He stated George Washington is relating government to a dangerous fire.  He advised abusive Code Enforcement according to George Washington.  He stated a few examples are a $50,000 fine for not replacing a shed, which was damaged in a hurricane; $25,000 for not getting a permit for a fence; $35,000 for not cutting grass, the boat not properly on a trailer, and plants in pots in the front yard; and inquired where did this come from.  He stated extortion is excessive, and those that apply it are racketeers, because a racketeer is a person who commits extortion; and it reminds him of the gangsters of the 1930’s.  He noted the Board has the authority to stop this; people have been yelling fire for a long time; but there is one person who has not seen one of these victims out of all of the Commissioners; that particular Commissioner will not let the citizens talk to him about this; and he wants to remind that person that he still works for the citizens, and he needs to humble himself.

Joy From stated she wrote a letter after a building inspector came to visit her.  “On July 27^th Paul Haddock, Building Inspector, came unannounced to do a final inspection on my fire escape staircase.  I had not called it in on this reissued new permit that expires in December.  When I questioned him he told me he had been sent by the higher powers, which I presumed was you Commissioners, since he said he was not dispatched by the Building Department.  When he said it was connected with Code Enforcement, she told him the minute this is finalized they will descend on me like kettle of vultures and force me back into their Building C hearing room for another repeat violation, and hit me again for $550.  He assured me they would not be bothering me any longer, and this entire problem is going to go away permanently just as soon as he signed off on my permit.  I finally consented.  He had waited since November 8, 2008 on the original permit that expired November 17^th.  My balance was $135 for extensions on that previous permit, but they now charged me $205 by forcing me to reapply for a second permit.  $70 I was overcharged in addition to the $550 I had to pay Code Enforcement for another Code Enforcement repeat violation while continuing with the same project in the interim.  I called it a $630 robbery.  I have to pause here to sincerely thank Ms. Peggy Busacca for rescuing me from the Code Enforcement siege of 2007, when they held me hostage for months and months after a major flood in my home upstairs and down.  The new roof had failed because of shoddy counter flashing, which consisted of one by six boards nailed to the wall.  When I had to move my belongings outside to dry and salvage, down swooped the Code vultures to ravage me further.  Aside from all the damage, costly
repairs and losses I suffered, they found a way to squeeze me through their meat
grinder and levy costs and fines totaling over $500 for processing me, plus an accumulating fine until I should be in compliance.  After their repeated unannounced invasions right into my home, they insisted in getting my permission to enter the property for their inspection, another double standard.  They rape you at will but insist on your consent to do an inspection.  So does this mean it’s illegal what they’ve been doing and now they’re covering their booty by forcing consent?  After that long, drawn out assault, I regrouped and went ahead with my fire escape staircase and patio project that I told you about in 2008 and 2009.  No sooner had I finished the fire escape staircase and called for inspection when here they were again for their next annual field day.  They could only be setting another trap for me using the fear tactic, which constant fear is very stressful and demoralizing.  The entire County Government is working toward the common good of its people except this Code Department, which under-minds the confidence and morale of taxpayers working to make things better.  You Commissioners are the only recourse left for those of us who seek relief.  It’s absolutely useless to call the Code Enforcement Office.  They pass you back and forth to each other who all natter away in their monotone repeating the same lines over and over.  They pay no attention to what we’re saying.  It’s dehumanizing and insulting.  Mr. Nelson, even one of your aids was very rude and nasty to me when I called your office in 2007 to complain about this Code aggression.  It was a man.  I can’t remember his name.  They take a County paycheck while treating the citizens with contempt.  There’s a little pocket of tyranny hidden in this cloak of democracy.  Any other public servant would be censored for such misconduct, but as civilians they are accountable to no one.  Surveillance cameras on board their trucks would paint a picture.  Comparing themselves with the Fire Department is like Dracula compared to Florence Nightingale.  No one would dial 9-1-1 for Code Enforcement.  I’ve asked everyone I know.  My appeal for help is well-founded.  I have indeed been victimized and abused.  Our Lord said, ‘Wicked men and imposters would advance from bad to worse’ so I don’t expect it to get better at this time of the end, but I do want to be recorded in the history of this County as a witness to the truth of those words.”

County Attorney Scott Knox stated this is an amendment to the Transportation Impact Fee Ordinance that the Board requested to take into account the fact that the original Ordinance did not really contemplate situations where building permits were issued at the time the Impact Fee rebate was being considered; and what staff tried to do, since they collect impact fees for a couple of cities that have had impact fee collections at the time building permits were issued, is to go forward with this amendment to include those types of situations.

 

City Manager of West Melbourne Scott Morgan stated it is the City’s recommendation that the Board not adopt the amendment to the Ordinance; as it was adopted on a prospected basis to have a waiver of transportation fees moratorium, good public policy
for trying to encourage economic development, the concern became with some cities, including the City of West Melbourne, had collected those fees at issuance of building permit rather than later in the process at the Certificate of Occupancy; and there is a risk of $1.3 million that could otherwise be used for important transportation improvement projects, including the Parkway Project that is so important to the south part of the County.

 

Chairman Nelson inquired what happens if the Board does not adopt the amendment; with Attorney Knox responding if the Board does not adopt the amendment the impact fees the County has collected on behalf of the cities, the way staff has interpreted the Ordinance, would be refunded to the persons who paid it; and he thinks what this Ordinance does is affect an opportunity of the cities to opt out of the Impact Fee Moratorium and keep those fees. 

 

Chairman Nelson stated what he hears is that if the Board does not adopt it, the Board would actually give the check back; and staff is trying to create a mechanism so the City makes that decision, and not the County.

Jim Wilson, Attorney for City of West Melbourne, stated what the City is trying to do is to find a way to let the Board live up to the intent of the original Ordinance without going back and creating the unintended consequence, which was kind of the refund of these fees; what he would suggest is kind of adopt a glitch bill; this glitch bill allows the City to adopt its own impact fee ordinance; but it presumes it will be able to reach back and recapture the funds that have already been paid under the present Ordinance; and he is not sure that the City could adopt an ordinance after-the-fact that could reach back and gets these funds that were paid previously.  He noted there may be an easier and simpler way to do that, and it would still live up to the intent the Board had when it passed the ordinance, but it would not create an unintended bonus for developers that have paid their impact fees already.  He advised the incentive behind doing this was to try to stimulate development, to try to get people who were holding back on development to come in and apply for a building permit and get going by waiving those impact fees; the people who already applied for permits and paid the impact fees, they did their development project anticipating doing that, and financed and funded it based on that expectation; and what this ordinance has done now, gives them as a prospect of receiving an unexpected bonus they were not anticipating, and the Board may not have anticipated either by doing this.  He suggested the Board do a kind of revised glitch bill where the Board essentially goes back and adopts an amendment to the Ordinance, which allows any impact fees that were collected due to City Ordinances through the normal City procedures that had already been collected at the date this Ordinance was adopted in March, and allow those fees to be kept; if the County adopts a glitch bill that essentially says its intent was to allow fees already collected to be retained by the County and paid out pursuant to the Ordinance in effect prior to the glitch bill being passed, he thinks the Board has the ability to do that; however, if the Board leaves it in the City’s hands to adopt another law in the future, it kind of becomes an ex post facto
law that he is now sure could be applied back to funds collected; and it is sort of legal technicality that he is sure that Attorney Knox and he could figure out by getting together and working on it. 

 

Stephany Eley stated in the newspaper, in the article where they quoted Chairman Nelson about what is going on with the economy, he made the statement that this is the right time in a bad economy to be doing infrastructure improvements; and the City of West Melbourne agrees.  She stated there is $1 million worth of impact fees sitting in limbo that could be used for major projects within the County at a time when those improvements can be made very cheaply; to refund those impact fees is an equity issue, because the City has so many different developers who have already come in, such as Hammock Landings and Coastal Commerce, who have made improvements to the infrastructure as part of a waiver of their impact fee; and it is not fair to those developers who have already paid that.  He stated to refund that to the Havens, which is also on Palm Bay Road and is absolutely going to impact that road, is not equitable; and she believes the only fair situation to both the residents, the County, and other business entities who have already paid their impact fees is to empower that glitch bill so that those impact fees will not be refunded.  She advised with most ordinances the intent is to go forward not to go backwards.

 

Christy Fischer, Planning Director for City of West Melbourne, stated she does not know what briefing the Board has gotten regarding Senate Bill 360, but one of the important changes that happened to the Florida Statutes is that the burden of proof for impact fees is now placed on local government; that is a huge ramification; but basically impact fees all throughout Florida, since the 1980’s when the impact fees were allowed to come into effect, has said that local governments are sort of protected and that the developer has the burden of proof.  She stated the City of West Melbourne passed a resolution saying it may have this intent of creating its own impact fee district, but the more the City started looking at the ramifications legally from the City having its own impact fee program and having to do a study that is bullet-proof is an unfair burden because the City has happily been with the County since 1989 as part of the Interlocal Agreement with the impact fee program.  She stated if the Board passes the revision as it is today, it is having the City go down that road.  She advised she is very worried about Senate Bill 360, and how other cities from now on are going to be able to sort of defend what they have; the County has had this in place for many years, and a revision on 2000; and the County probably has a better chance of legally defending if there are challenges than if the City of West Melbourne would be starting brand new.

 

Jack Spira, Attorney Representing Heather Joyner, stated Ms. Joyner opened a daycare center in West Melbourne; and this deals with the impact fees on that.  He noted the Agenda Report issued by Mr. Swanke states, “The intent of the Ordinance was to refund fees.  It was readily evident from the provisions of the original Emergency Ordinance extending the Moratorium for transportation impact fees to any property owner who had submitted a complete building permit application prior to March 1, 2009 but had not yet received a temporary certificate of occupancy as of that date.”  He advised his client fell
into that category.  He advised it goes on as follows, “Under the Emergency Ordinance as applied, those projects would qualify for a refund if no temporary Certificate of Occupancy had been issued prior to March 1, 2009.”  He stated some of these projects have not received refunds pending Board action on this request.  He noted under the proposed ordinance, as indicated by representatives of the City, his client would not be entitled to a refund; there was an application made for building permit; there was impact fees of $154,163.66 made on November 7, 2008; regarding his client, the City of West Melbourne also required a traffic study to meet concurrency; his client did have that traffic study prepared; there was a pro rata share agreement, pro rate share determined, that his clients share of concurrency is $43,760; and his clients contention is they are entitled to the refund between the amount of the impact fees of $154,163.66 and their fair share of $43,760, or a total of $110,403.66.  He stated staff of City of West Melbourne has clearly set out what the problem is; the problem that Mr. Wilson sets out is by the County enacting the ordinance now it is an ex post facto ordinance; in fact, what it does it affects a right that an individual has; his contention is, based upon the intent of the ordinance as originally drafted and based upon refunds granted by the County, his client has the right to request a refund of $110,000.  He stated for the County to come back now and say this ordinance does not apply, it is not appropriate.  He advised he saw a letter from Ms. Fisher to Commissioner Bolin and she said it is the City’s position that the ordinance applies only to owners or applicants who applied for and received a building permit from Brevard County; he submits that is incorrect; the last sentence of that moratorium says, “This moratorium shall also apply to any owner or applicant who submitted a complete application for building permit prior to March 1, 2009, but is not as of the effective date of this Ordinance received a building permit or a temporary Certificate of Occupancy; and that applies to his client.  He stated it is a question of fairness; his client played by the rules; he understands the concern by the City saying a person should not be able to go back, these people had a building permit, but in many instances individuals applied for a building permit, paid impact fees, but because of financial considerations of that time they did not proceed with the project; he believes it was the intent of the Board at that time to cover those situations where people had submitted for a building permit wanted to give these people some additional incentive to go forward with the project; and he thinks that was the purpose of it.  He stated to glitch that $110,000 back from this individual, who runs a daycare center, he thinks is inappropriate and is subject to legal challenge.

 

Maureen Rupe stated she is a supporter of impact fees and public hearings.  She looked at the transportation impact fee waivers and refunds from March through July; she could not believe what she saw; and what has been waived and what has been lost from March to July comes to a grand total, residential and commercial, comes to $2,985,323.72.  She just wanted to make the Board aware of how much money, in these economic times that County has lost through putting that moratorium on the impact fees.

 

Commissioner Anderson stated he met with both sides; he feels a little bit of responsibility since he proposed the moratorium; but he knew there would be
unforeseen things, but that is just what happens when something is done like this.  He inquired in reference to the daycare and their legal standing, what is his response to that; with County Attorney Scott Knox responding the Board enacted the moratorium ordinance on an emergency basis, and the Board can set and draw the line as to who does or does not qualify; the problem in this case, and it applies to the daycare center and some others, is that the Board’s original enactment contemplated the County’s Ordinance what the impact fees are at CO; it did not take into account the County had contracts with cities that allow it to collect when they pay a building permit; so the Ordinance did not initially address that issue; this is an attempt to make it clear that the Board’s intent extended back to that situation as well, unless the City of West Melbourne wants to intervene, pass its own ordinance, and keep those impact fees; and the argument that the County cannot reach back and do something and it can only go forward does not really wash, because the fact of the matter is that is what the Board did when it passed the Ordinance, it went back and retroactively grandfathered those folks in from not having to pay impact fees.  He advised the Board can go back now and correct it to extend its intent to include those who pay the impact fees at the initial building permit stage; the real issue is whether or not the City wants to pass its own ordinance; and he has all the faith in the world that the City could pass an ordinance that will withstand any kind of a legal challenge if it wants to do that as it has very competent lawyers and planners.

 

Commissioner Anderson inquired if the Board knows the collection points for those impact fees; stated the cities were using the County’s Ordinance; however, if a person was in a non-incorporated area were collecting at the time of CO; but the City of West Melbourne is collecting at the time of building permit, although nothing in that Ordinance spelled out when it was to be collected; and inquired how did the Board get to this situation.  Attorney Knox advised he will let Impact Fee Programs and Budget representative Steve Swanke address the issues to when the collection takes place and how the County came to that issue; but the moratorium Ordinance did not address that issue at all.

 

Chairman Nelson inquired if a person has to get their CO; stated so even if the money was collected at building permit stage, a person cannot get a refund until such time as he or she has performed; and he does not know how the County could refund any project dollars that has not gotten a CO.  He stated he does not know how the County can refund the money now because they still have to finish their building.  Attorney Knox stated that was the incentive the Board was trying to give people, to get something done within that two-year period.

 

Commissioner Fisher stated the reason he supported it was because he wanted to stimulate growth; there was projects left on hold where people were not going to finish them; and the Board was trying to motivate people to start the projects back up, plus motivate anyone who was one the fence about whether they start a project or not.  He noted he did not think anyone would get refunded until he or she got a CO in hand.

 

Mr. Swanke stated under the Ordinance a person is required to pay their impact fee before either the County or participating city issues a Certificate of Occupancy; cities participate in the County’s program by adopting an interlocal agreement, although the Ordinance is effective Countywide, each city has the option of collecting at the building permit stage if it feels that is more appropriate because it is also before the Certificate of Occupancy stage; most cities simply follow the County’s practice of not requiring payment until the CO is ready to be issued; but the Cities of West Melbourne, Rockledge, and Satellite Beach are the only cities that require it prior to issuing a building permit.  He stated as far as refunds, in those cities when people paid the impact fees at the building permit stage, the County has not been giving any refunds until he or she presents staff with a CO; and at that point, with the exception of the City of West Melbourne, staff has been refunding those monies.

 

Commissioner Fisher inquired if staff has refunded anyone in the County that does not have a CO yet; with Mr. Swanke responding no, when a person is in the County and he or she comes to get their CO, staff removes the charge for transportation impact fees from their final bill at that time.

 

Commissioner Bolin stated he agrees with Commissioner Fisher, the Board knew what its intent was and now it is shaking down to finance some of the consequences; and inquired by listening to this, it is her understanding that the cities have the option of how they hold on to the money; and if a particular city asks for the impact fee at the time of the building permit, would they need to put that in an escrow holding account to wait until they find out if the people actually qualify to get a refund with the CO; with Attorney Knox responding the way the Ordinance currently reads is the way Mr. Swanke describes it, the County does not issue the refunds until the CO is issued; and stated if the daycare center does not have a CO it will not get a refund anyway.

 

Commissioner Infantini stated she not only enacted the Ordinance, she represents all of Brevard County; she is not trying to override cities and how they run their governments; she did not intend for the Ordinance to apply to city governments; if they have rules in place, and the County is trying to help them enforce the application of their collection of impact fees, and these businesses or establishments are within the confines of the cities, she is not trying to take back their money; and she intended it to impact unincorporated Brevard County.

 

Commissioner Fisher stated the City of Titusville adopted the County’s impact fees; and inquired if the City’s Council decided not to waive impact fees.  Mr. Swanke advised the City of Titusville enacted its own ordinance in 2005 based on the County’s Transportation Impact Fee Rate Schedule; when the Emergency Ordinance establishing the moratorium was adopted by the Board, the City resumed making impact fee collections on its own for transportation impact fees; and it did not need to adopt an ordinance because it had already done so.  Commissioner Fisher inquired why the City of West Melbourne could not do the same; with Mr. Swanke advising the City of West Melbourne has not adopted an ordinance; stated the County Ordinance applies in the
City; and since 1989, there has been an Interlocal Agreement with the City.  He noted the way it works is the City of West Melbourne will not issue a building permit in its jurisdiction until the applicant presents with a receipt saying that the impact fees have been paid.  He stated for new people coming in after March 1^st, staff has allowed them to pay the other impact fees but not transportation, and have stamped their receipt saying if they do not receive a CO by March 1, 2011 that the fees will be due.

 

Chairman Nelson stated he believes Sam’s Club was refunding the fee.  Mr. Swanke advised Sam’s Club was not refunded, they came and paid their other impact fees to get their CO; and stated the charge was removed at that time.  Chairman Nelson stated he thought the intent was to have collected that and deal with the issue of Cocoa opting out because he believes it wants to opt out; and inquired how staff is going to go back and get the money from them.  Mr. Swanke advised he does not believe staff will be able to get the money from them; he only became aware of the Sam’s Club issue after they had already paid their other impact fees and received their CO; and staff never collected any money and never refunded any money.  Chairman Nelson stated the City of Cocoa is going to be one unhappy city.

 

Assistant County Manager Mel Scott stated for clarification that just represented a waiver; staff also has a running tally of the waiver; and that is what, in part, Ms. Rupe has cited.  He advised staff has tracked for Board direction the amount staff has not collected but represents the waiver.  Chairman Nelson stated he does not remember what the timing was, but this Board discussed not injuring the cities until it resolved this issue, which is what lead to this coming back before this Board; and the timing was such that the Board had that discussion before they got their CO.

 

Commissioner Anderson stated the impact fee study that the County conducted could be applied to the City of West Melbourne’s ordinance; it would not have to go out and get a new study; and it could use the County’s existing study.  

Mr. Wilson stated if the City of West Melbourne is left out there on its own, it may have to apply its own ordinance, which means the County would have to go ahead and adopt this; and the City will have to see if it can get something that works that is legal.

 

Commissioner Anderson stated he is a big supporter of Home Rule, being a former City Councilman, and that was one of the things that gave him a level of comfort is that Impact Fee Study could be utilized by municipalities that want to adopt their own ordinance. Attorney Knox advised the City of Titusville did the same thing.  Mr. Wilson stated they are probably close enough in the window that they can hopefully make that work; and Ms. Fischer knows more about that study than he does.  Ms. Fischer stated the City of Titusville did that before the change in Senate Bill 360; she respects what Attorney Knox has said; but it is a huge legal challenge.

 

Chairman Nelson stated from a practical perspective, compliance means that it would probably be higher than it currently is, because those were 1999 and 2000; and woe be it with the developer that comes in and challenges it and says he or she wants to pay more.  He stated he does not know if anyone will come in and challenge numbers that favor them in the first place.  Ms. Fischer stated the 59 projects that she listed are 59 active building permits, and actually there are two of them that have gotten CO’s.  She advised the bulk of that is from the Haven Apartment Complex; this might fix what the County is doing; but it is not equitable; and the easier way is what the City of West Melbourne outlined and she hopes that is what the Board considers.

 

Commissioner Anderson stated his concern is that the County has had a different standard with a different municipality; if the City of West Melbourne could get its own ordinance enacted, that would solve a lot of issues, because he thinks the Board is putting itself in a legal bind if it does something different for the City of West Melbourne than it does for Cocoa.  He stated if the City of West Melbourne spent a lot of money and if it can use that setting, get this thing enacted, and protect its interest, that would be where he would like to go. 

 

Commissioner Bolin inquired how the Cities of Rockledge and Satellite Beach are handling this; with Mr. Swanke responding staff has not received any communication from either city; and they have not objected to anything the County has done.

 

Commissioner Fisher inquired if Mr. Spira’s client has opened the daycare; with Mr. Spira responding they have received a CO.  Commissioner Fisher inquired when the daycare received the CO; with Mr. Swanke responding he believes it was in June.  Commissioner Fisher stated when the County passed its Emergency Ordinance the City of Titusville immediately had its Council decide whether it wanted to comply with what the County was doing.  He inquired if the City of West Melbourne has done that; with Mr. Wilson responding the difference was that the City of Titusville had already opted out of the County’s Ordinance, and he thinks what its concerns were, since it had already opted out, was the County’s moratorium going to be effective in the City of Titusville; it would not have been because the County did not have the power to do that; the City of Titusville was independent of the County even though it used the study; what the City of West Melbourne has done already is it has adopted a resolution of intent in anticipation of this change being effective; it says the City will do its own impact fee if it has to; but the impact has not actually been adopted by ordinance yet.

 

Commissioner Bolin inquired if the City of West Melbourne is all set to move forward if the Board adopts this; with Mr. Wilson responding yes, that is correct.

 

Commissioner Fisher stated the County Impact Fee Study is a Countywide study; and inquired how does a local municipality take a Countywide Study and apply it to just its city.  Mr. Swanke advised the County’s Study used the methodology that is not tied to any certain geographic area; it is tied to travel characteristics that are probably very uniform Countywide; and the Study could be valid in the cities as well.

 

Commissioner Anderson inquired if this is time sensitive on this piece; with Attorney Knox responding no.

 

Chairman Nelson stated what the Board needs to do is put a hold on any refunds until the issue is resolved.

 

Commissioner Anderson stated the reason he is asking is he is not feeling a level of comfort from the City of West Melbourne on the County’s Study; and inquired if staff has discussed the County’s Study with the City of West Melbourne at any point.  Mr. Swanke advised not in detail; he provided the City of West Melbourne a copy of the Study; but he really has not discussed it in detail.  Commissioner Anderson stated he wants a way to resolve this and maintain the City’s Home Rule Authority.  He stated he would like to table the item until County staff has a chance to meet with Ms. Fisher and Mr. Wilson with the City of West Melbourne; and to give the Board feedback at a later date.

 

Chairman Nelson stated he would also like to include the Cities of Rockledge and Satellite Beach, even if it is just a statement that neither city is in objection to what it is doing or that they are not intending to do their own.

 

Assistant County Manager Mel Scott stated staff would like a motion from the Board to direct staff to cease waiving transportation impact fees at the CO for those projects within cities. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to direct staff to cease waiving transportation impact fees for the cities at the Certificate of Occupancy (CO) stage.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to continue public hearing to consider an ordinance amending Ordinance 09-08E, which is the Emergency Ordinance that established the moratorium on transportation impact fees, to the October 6, 2009 Board meeting.  Motion carried and ordered unanimously.

 

The Board recessed at 10:53 a.m. and reconvened at 11:11 a.m.

 

 

Howard Novick distributed a brochure from the design group he retained; he had preliminary renderings to give the Board an idea as to what the layout would be in each location; and should the Board approve the lease going forward, Galvin Design Group will do the final drawings he will need in order to provide the fixtures.

 

Paul Novick stated the flow in the snack bar at the Moore Justice Center is not the way it should be when there are several people in the store; that is because the checkout counter is on the wrong side of the store, it is at the back end of the store, rather than at the front end; and people would normally get their food at the back end, come along a line, checkout, and then go out the door.  He stated the renderings would show the traffic flow that would be in the Moore Justice Center.  He explained where the door would be located going out of the store back into the hallway; he demonstrated a customer would come in through the doors to order their food; after he or she ordered their food they would proceed to get their drinks right to the cash register; and advised where they would exit.  He advised across from where people ordered their food would be the drink section, the existing ice cream freezer would be located there, and a new coffee bar would be in that area as well.  He explained that in the Government Center part of the proposed alteration is there is a storeroom with a wall behind where the existing cash register is located presently; part of the improvements would be to push out that wall, giving the store more storage room, and putting the soda machines right outside that wall; they intend to move the cash area down to the other side, because the preparation area is far from the kitchen, which makes it very difficult to work; and the new renovation would have the preparation area next to the kitchen for easier access.  He explained he intends to also put in a new coffee bar that would sit in the middle of the store; on the estimates they intend to put new furniture in that shop as well; and a new salad bar is proposed to be put in the store.  He stated a person would come into the store, order the food first, which would be by the kitchen, to check out and go out the door.  He advised those are the proposed changes in the design; he knows the Board did not ask for this when it asked them to come back with what they intend to spend and the timeframe for doing it is; and he felt of the Board had a visual of what they intended to do it would have a better understanding.

 

Commissioner Bolin inquired if by putting the salad bar in the middle how many chairs and tables will be removed; with Howard Novick advising the coffee bar is in the middle.  Paul Novick advised they will not move any tables, because they are moving the cash register to the other end and there will not be as much traffic flow over there.

 

Commissioner Infantini inquired if there were two estimates; with Paul Novick responding Galvin is the designer, Construction Connection made his proposal based on the information he got from Galvin; and Galvin is only a designer, not a construction person.  Commissioner Infantini stated she is still in favor of offering this up for bid; and she is not a proponent of just re-establishing.

 

Commissioner Bolin stated that she knows they made the proposal that if they wanted to all of the changes that they wanted to do it during the month of December while there is light load as far as business; and inquired if the County goes out for an RFP on this what does it do to the timeline to complete that if they do win the bid.  Interim Assistant County Manager Frank Abbate advised the current Lease is valid as is through 2012, so the County would not go out on RFP now unless Howard and Paul Novick want to shorten the Lease and take a chance with the opportunity that they would be the
successful bidder.  He stated they have the ability, under the current Lease, to continue under their current terms and conditions, including the renewals that have been previously approved through 2012; and the Board would not be in a position to unilaterally move forward with an RFP process, unless they said that where they are today they would be willing to release the Board out of the current Lease arrangement they have.

 

Paul Novick stated from a time standpoint, the only way to do this by December is, assuming the Board approves it now, from a legal standpoint there must be an extension made to the Lease, they would have to review it, sign off on it, and then they would have to contract with the construction people.  He advised there is plumbing and electrical work they did not get estimates on because it would not change the Board’s opinion one way or the other.  He stated in order to complete it in the December timeline, they would have to get busy because a lot of it is custom cabinetry that has to be fabricated prior to ripping our the floors and existing equipment; but certainly they are not going to give up the four years that they have left.  He stated if the Board decides it does not want to go forward at this time, possibly four years from now it can be revisited.

 

Commissioner Bolin stated Mr. Novick hit on what she was eluding to, they have until 2012 currently, and that would be going out for bid; her concern is if the Board does not move forward with pre-empting all of the Board’s normal procedures in giving them a lease; and inquired what is the Novick’s situation from 2012, are there improvements they would want to do at this point.  Paul Novick advised if the Board decides to retain the status quo, they will retain the status quo; they will operate the way they are; and inquired if it is 2012 or 2013.  Mr. Quickel advised it is September of 2013, a full four years from today.

 

Commissioner Fisher inquired if there is a CPI increase in the current Lease; and what is the proposal from the year of 2013 to a 10-year amortization.  Mr. Quickel responded the Contract allows the Board to adjust their rent every year for the real estate that they are renting, as well as it has the opportunity to increase the utility costs if it is warranted.  Mr. Quickel advised every year the County can reassess the fair market value if it desires and readdress that.  Commissioner Fisher inquired what has the County done in the last few years, has it made adjustments for CPI, kept the rent flat, or what has it done; with Mr. Quickel advising it has not raised the rent since the current tenants have been in there; and he is not sure if it was ever raised prior to them with Logan being in there.  Commissioner Fisher inquired if the Board extends the 10 years, is it to stay on the same rent structure or do they want adjustments in rent; Paul Novick advised the CPI and utility structure is all well and good except for the fact that their business is based on the census within the Government Center and the Courthouse; stated it is no secret that there have been a substantial amount of layoffs in both buildings; the business is unfortunately negatively impacted by those; if the business was at the airport or a high traffic location, those clauses might work; but unfortunately for them, they are hard pressed to pay what they are paying now, because the County has probably reduced 20 percent of the workforce, which consequently reduces the traffic from the outside coming in.

 

Howard Novick stated one of the reasons they are looking to make the investment now is they believe eventually things will come back, it will not last forever; but in the position they are in right now, they have to increase their business from the outside, because of the harder time the employees are having it is making it more difficult for them.  He stated they are hoping by making these renovations, the people who visit the Government Center and Courthouse, part of it is they are looking to make it more attractive to them, and hopefully have them come into their store.

 

Chairman Nelson stated the real question to the Board is, is it willing to talk about negotiating improvements at this location; and he is not sure that 10 years is correct based on the numbers.  He inquired if the Board is willing to say that prior to the end of
the four-year extension it is willing to have that discussion to nail it down as to what is the best deal for everyone.  He noted that Commissioner Infantini said she was uncomfortable with it; the difficulty is even if they were willing to go back out to bid is that the Board would have to draw is what it expects to have in there or it becomes an extremely difficult process of whole different group of people trying to determine what that needs, what it looks like, and it is a much more lengthy, difficult process.  He advised the reality is it is a service to this campus; it will never be a huge money maker; but the reality is it is just the employees in the business that is conducted here.  He stated he is willing to have a negotiation occur, which drills down into this to say is it that cost, is it a different cost, how many years, what are the terms and conditions, because he thinks a person builds a business and it is not fair to take that away from them over some shortened period of time; but he thinks it is worth the discussion from his perspective to have staff negotiate the improvement value, amortization and see if that’s the right amount, because he thought ten years was a little be long; and he also thinks there may be better pricing. 

 

Commissioner Infantini inquired if they have a cost allocation for costs per square foot for occupancy for current County facilities, how it allocates the costs for utilities and general occupancy.  Interim County Manager Stockton Whitten advised it is in the space or cost allocation plan; and staff can get that to her.  Commissioner Infantini stated she is just trying to find out if that is consistent with how the County allocates cost, because it is part of the whole structure.  Mr. Whitten advised he does not know what they would pay, the County as a business would be comparable of how it allocates charges through the Departments; but staff will give her the cost allocation, which includes the County Departments, but does not include any allocation of their space, because theirs is a market-driven Contract.

 

Commissioner Bolin stated she thanked them for being with the County and having the Café; it is a benefit to the people who work on the campus; she knows the Board should go by Policy, but this is an emotional situation, because if the County does not have it, it will be an inconvenience that is not necessary if they are willing to work with the Board; and she is willing to have them work with staff, because she wants to do everything possible to keep the Complex Café alive and active in the complexes.

 

Paul Novick stated the last time there was an RFP on this there was one bidder, and that was Logan; that was under much better economic times; and there was not a line-up of people who were willing to submit bids for this operation.    

 

Commissioner Fisher stated he is fine with extending the Contract if they are making an investment; and he is not fine with extending it another 10 years beyond the existing Contract, because it is 14 years.  Chairman Nelson inquired if it is 10 years beyond four or a 10-year total; with Mr. Quickel responding it is 10 years beyond the four so that would put it into the year of 2023.  Commissioner Fisher stated that is tying the Board’s hands a really long time.  Chairman Nelson stated he is willing to have the discussion, but the time for amortization of that was just too great.  Commissioner Fisher stated the Board does not have any way of making sure their investment is going to be a certain dollar figure; he is fine with extension if they are going to make a sizable investment in the business; but he hopes this helps produce quality of food, coffee, and those other issues that make it a successful business for them.

 

Commissioner Anderson stated he had the opportunity to go to the School Board’s facility, and he talked with School Board Member Andy Ziegler and found out it is not a contracted-type situation but it makes money on it; he would like staff to look at the School Board’s model; and that is the type of quality he would like to see with the facility is like what is at the School Board facility.  Mr. Quickel stated they bid the rent to get this Contract; the highest bidder is the one who ends up with the Contract; the Board needs to look at this from the standpoint that it is the Novick’s money and it is the County’s interest to get the highest rent possible; and what is being proposed are costs for work, which they would be paying for. 

 

Chairman Nelson stated some of these items become additions to the Government Center, and that is what needs to be detailed in the process of discussion; he would be willing to work with staff and see if there is a deal that they can get before the Board for it to say yes or no; to bring back what they think can be the best circumstance; and to let the Board decide.

 

Commissioner Fisher stated the one thing a longer term lease does is to give them an opportunity if there is a desire to sell; and he hopes during negotiations that there is some conversation about the Board being able to revisit and approve any sale or anything like that. 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize Chairman Nelson to negotiate with staff on behalf of the County concerning the bid proposal from the contractor for renovations to the Complex Café regarding the previous request for a 10-year lease extension, and report back to the Board.  Motion carried and ordered unanimously. 

 

 

County Attorney Scott Knox asked the Board to continue the item for another two weeks as they still have language in the contract that needs to be finalized.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to table request for approval of Settlement Agreement of Palm Bay v. Brevard County, Case No. 05-2005-CA-024646-XXXX-XX, to a future Board meeting.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to adopt Resolution No. 09-002 adopting Fiscal Year 2009-2010 Budget for Barefoot Bay Water and Sewer District.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson stated the last EAR reports that came before the Board, it moved them along understanding it is going to have a workshop on the details; and these were the technical type of changes.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to accept the draft Comprehensive Plan amendments that are necessary to implement the recommendations for the Evaluation and Appraisal Report (EAR).  Motion carried and ordered; Commissioner Anderson voted nay.

 

 

Planning and Development Director Robin Sobrino advised that staff is coming back on September 15, 2009 with the transmittal package, which embodies all of these elements the Board has seen in the past few weeks. 

 

Commissioner Infantini inquired if the Board will be able to make changes to this at that point and time; with Ms. Sobrino responding during the transmittal hearing, the Board can make changes; stated the idea was to bring them to the Board in advance so when staff brings forward the entire package for the transmittal hearing that it would have resolved any questions or concerns; but the philosophy of the transmittal is to stay the course with mostly everything that is in the current Comprehensive Plan; then to proceed in October to have the workshops what is the new direction of the Comprehensive Plan; and then staff can initiate Comp Plan amendments that would address those new directions of the Board.

 

 

 

Planning and Development Director Robin Sobrino stated this is an application to allow a fourth easement over a flag stem; the situation is that this property was the subject of a Zoning hearing several years ago, and as part of the Binding Development Plan it said that any residential use on this property must have access of the easement leading out to Fleming Grant Road; and consequently since they are now coming into develop this property, they are forced to use this flag stem as their access easement.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to approve a waiver of Section 62-102(B)(2)(b) to allow a fourth easement across a flag where the Code stipulates that only one access easement is permitted over any flag stem.  Motion carried and ordered unanimously.

 

 

Assistant County Manager Mel Scott stated the intention behind the Agenda item is to provide staff with a green light to do an RFP to bring on board an Airport Engineering Consultant; the selection committee would appoint that Consultant through the RFP process; the big picture goal is to, once the Consultant is on board, seek to secure the identified safety related improvements to the airport that is in the bulk of the Agenda item’s main paragraph, Items 1 through 8; Items 1-7, which are the specific safety improvements are identified on page 9.6 of the Valkaria Airport Master Plan, under the term Capital Improvements Program, Table 9.2; they are all listed there; but the one aspect of this request that is not in the Valkaria Airport Master Plan is the Exhibit A Property Map; and the need for that is contained in the attachment the Board has as part of securing the AIP funding.  He advised staff also recommends attachment 1 second paragraph, “All airport requesting federal funding are obligated to provide a property map of the Airport, so that is just housekeeping to put the County in position to ensure the grant funds; it is staffs plan, once the grant is secure, to bring them back for the actual execution for the grant specifics, so this is a two-step process, the first of which would be this Agenda Item to move to secure those grants for safety-related projects.

Janis Walters stated she knows the Board is probably tired of hearing from them about Valkaria Airport; and she is tired of hearing how stupid they were to get a house near an airport; but the County has only itself to blame.  She stated she would like to refresh the Board’s memory on the Airport’s history as evidenced on FDOT inspection records, County minutes, property records, and newspaper articles.  She advised in 1943 the property was taken over eminent domain to build a Naval air training station; after the war the Airport turned into disuse; the community of Valkaria Heights began to grow in the 1950’s and early 1960’s; and at that time the Airport was for all purposes inactive.  She stated for example, according to the 1951 inspection report the Airport was closed and leased out for cattle grazing; in 1958 the Airport transferred from the GSA to Brevard County by quit-claim deed; and according to the 1959 inspection, the first one
after the County took position, four of the eight runways were blocked, utter traffic crosses the runways at the intersection of three runways at the top of the Airport, and Runway 927 is actually used as a road.  She noted by 1962 all of the runways are closed except for 1432 and its usable length is reduced to 2,900 feet to accommodate the auto traffic; the Airport is also being used for drag races, which continue until they are banned in 1967; in 1969 the usable length of 1432 is further reduced to 2,025 feet to better accommodate the auto traffic; by 1970 tennis courts have been built on the surface of Runway 927; in December 1973 a Florida TODAY article announces that County Commissioner Val Steele intends Valkaria Airport be a recreational facility; and in 1976 finally Valkaria Road has been routed around the Airport so auto traffic on the runways finally ceases.  She stated in 1979 the tennis courts were removed; in 1980 Runway 422 was reopened; this effected the community of Rocky Pointe, so operation restrictions were put into place on both runways; in 1984 the County adopts the first Valkaria Airport Master Plan, one of several possible future configurations is proposed for the Airport that involves enclosing 422 and reopening 927; now all this while the County has been issuing building permits for houses all around the Airport and has been telling everyone who ask, and people did ask, that the Airport will never be built up and Runway 927 will never be reopened; in 1987 surprise, Runway 422 is closed and 927 is reopened; and no notice was given to the affected homeowners, and no public hearing beyond the Master Plan adoption three years earlier.  She advised runway 927 affects Valkaria Heights directly to the east of the Airport, much closer than Rocky Pointe, but the runway restrictions are gone; in 1990 surprise again, an update of the Master Plan proposing a mini Melbourne International is adopted to spite community objections, so much for County promises about a small recreational airport; in July 1996 the County Commission abandons the 1990 Master Plan and renews its promises of a small rural, recreational-use airport; people continue to build their homes in Valkaria based on those promises; the most recent Master Plan was adopted with a promise that there would be no night lighting at the Airport; and now here the Board is just a couple of years later being asked by staff to approve projects that involve lighting that facilitates night operations and that functions primarily to benefit and expand the hours of flight training activities, which are the main source of the communities problems with Airport operations.  She explained the County has made a mess of this over a long period of time and the Board is being asked to make a bad situation even worse; the County has an obligation to keep its promises and to protect the neighboring residential community from adverse affects of Airport improvements; Brevard County has made many improvements to the Airport over-the-years without taking FAA Development Grant funding; ownership responsibility includes the responsibility to balance the needs of all; read the FAA Airport Compliance Advisory Circular; read the FAA Letter in the next Airport Agenda Item for illustration of the loss of local control with an obligated airport; and it loses the ability to say no to aviation airport development.  She inquired if the Board remembers Dr. McClure’s request to build a hangar on Valkaria Airport; stated the
Board would not have been able to say no to him had Valkaria been an obligated airport; now Dr. McClure has just declined a hangar in a new building, and the Board is about to obligate the Airport through the FAA Grant; and inquired to the Board what it supposes is coming next.  She stated the community of Valkaria Heights was already well-established by 1958 when the Airport was deeded to Brevard County in derelict condition; improvements on that condition should not work to the detriment of the Airport’s neighbors, nor should the County relinquish any degree of local control over the Airport’s direction and development by taking FAA Development Grant money.  She stated she hopes this gives the Board some perspective on the situation, and she requests that the Board say no to any projects that facilitate night operations or take FAA Grant money.

 

Curt Lorenc stated today he has heard one speaker after another complaining how their tax dollars are being spent; he is sure the Board hears this each meeting; there are a lot of people out there losing their homes; there are real tough economic times; and he had a neighbors property being auctioned off and another that is in foreclosure.  He stated people out there want the Board to be careful with their tax dollars; and they do not want needless spending on projects that are not needed.  He stated what they have had with Valkaria Airport is 25 years of steady decline in pilots; every year the number of pilots in Brevard County goes down and that is with the population increase; and there is decrease in demand.  He advised the Towns of Malabar and Grant-Valkaria basically sent the Board a letter when it did the Master Plan, and what they told the Board was no night lights, no lighting projects at all, and Federal funding; and there were letters sent that is part of the public record.  He noted staff has not been to the Towns to ask if they would approve these projects; the Airport resides mostly in the Town of Grant-Valkaria; and a permit must be obtained.  He stated in going through the Federal court cases, there is no question that the Town of Grant-Valkaria has control over land use; and they can stop this project.  He stated all previous funding was provided for this Airport by Florida Department of Transportation Grants; there are very few strings attached to that type of grant money; the County has never taken FAA Grant money; there is a more attractive as there is less matching money that it has to come up with; but it needs to look at the total package; and the total package is that all the advisory circulars now become mandatory, which means the Board will have to put millions of dollars into the Airport to bring it up to Federal standards, and keep it at Federal standards.    He explained the estimates he received on that were close to $100 million to bring that Airport up to standards; and that was from an aviation consultant.  He requested that County Attorney Scott Knox write to the FAA to ask it what the impacts are, to get a copy of all of the advisory circulars that are not going to become mandatory, and all of the ways the County will lose control of the Airport.  He stated asking staff is not credible; he knows the Chairman is well aware that staff has not been straight forward and honest with this Board on Airport projects; that is over a two to three-year period; and they have misrepresented what the facts were.  He stated surrounding the Airport there is probably
$8 million in real estate; by heading towards a commercial airport, which an FAA obligated airport will be, and also one that has night time activities, will obviously be a decrease in property values; the Board cannot take action to decrease property values without compensation; and inquired if the Board is prepared to compensate those people for their property values.  He requested that the Board table the item to a future meeting until Mr. Knox can get all of the details and costs before it.

 

Lisa McKasty stated she lives directly at the east end of Runway 927; when they bought the house they were under the impression from the County Commissioners at that time that it was going to remain a small recreational airport; they have been through quite a few Airport Managers and Commissioners; everyone has always misinformed the residents that it is going to remain small and recreational; and now the Board is talking about taking FAA money.  She stated she does not see how the Board can approve or even consider pursing grant money; from what she is looking at, she has correspondence copies that Airport Manager Steve Borowski wrote to the FAA, and he told them that Brevard County has rescinded the Airport Ordinances; but he only told half of the truth, he did not tell them that the Town of Grant-Valkaria still has the Ordinances in effect.  She stated it took the citizens a lot of years to get those Ordinances put into effect.  She advised the noise there is ridiculous from the flight schools; in the past, prior flight schools were training terrorists; during the 9-1-1 attacks, it was stated that is where they learned; and they were doing it at the little Airport.  She stated the flight schools are not paying Brevard County taxes to live there in this nice, quiet little area, which is being attacked.  She stated it has taken the residents livelihoods and turned it to trash; she would like to see one of the Commissioners live out there under the impression that it is going to be a sweet little area; and it is except for the flight schools coming in.  She advised every time they call Mr. Borowski with a problem he either hangs up, is conveniently not there to answer the telephone, his one and only remark is call the FAA.  She stated the residents involved the Sheriff; and now the Sheriff’s Department goes out there and Mr. Borowski wants to press harassment charges because the residents call him with Airport issues.  She stated former Commissioner Higgs was behind the residents as best she could; they got the Ordinance put into effect; then the FIT is drawing up the new Master Plan; and then the Commissioners told the residents it is still going to remain a small recreational airport.  She stated now there is a whole new set of Commissioners and the same thing is happening trying to expand the Airport, which does not need to be expanded with Federal money.

 

Helen Voltz stated for the longest time there have been many mistruths, but she does not think it was by staff; the history of the Valkaria Airport is history and there is nothing that can be done to change it; but it is still a recreational airport and that will not change.  She stated the so-called lights for night operations are not for night operations, they are for the safety of daytime; and those lights will decrease the amount of those flyovers that
the students have to make.  She stated another comment was made about being careful with tax dollars; the County is not paying tax dollars, on this particular item it is actually the FAA; it is gas money paying for this; someone is going to take the money; and inquired why not Brevard County.  She stated the County does not have to go through the Town of Grant-Valkaria for approval on this item; there are no strings attached to FDOT money; and the strings that are attached to the FAA money the County has already met all of those strings.  She stated the question about staff being credible, the County staff has always been credible; Mr. Borowski has always been on top of this Airport, he has done a great job in bringing the Airport to where it should be; and he does not misrepresent the facts.  She explained everyone’s property values have gone down; she remembers in the past, people tried to prove that Airport properties have gone down, but they have not been able to do that.  She stated the Ordinances that Grant-Valkaria has are not any good because they are not legal.  She stated there have been a lot of people who have wasted the Sheriff’s time when he could have been doing other things; and she does not believe for one second that Mr. Borowski ignores callers.  She requested the Board approve the Item today.

 

Milo Zonka stated there was a statement about the FAA suddenly becoming the owner and controller of Valkaria Airport if the Board should accept those funds; Arthur Dunn Airpark is an FAA obligated airport and it does not look like the FAA required Brevard County or the Tico Airport Authority to invest $100 million to make it anything other than Arthur Dunn Airpark; and Merritt Island is also an FAA obligated airport.  He stated Rockledge Airpark was built by private entities; he does not believe they have accepted Federal dollars in the course of operating that Airport over the many years; so that operator can turn around tomorrow and have non-standard striping and all of these different things they would chose to do because it is a private airpark; and that is not quite the history of Valkaria Airport.  He advised the Board of County Commissioners 51 years ago accepted the deed for this Airport and in doing so, it became a Federally obligated airport; that is just the fact because there is a quit-claim deed that requires all sorts of things, including that the County cannot discriminate the right to access to the Airport; just as the County cannot discriminate the right to access on a Federal highway or other Federal assets that are paid for by tax dollars by all of the people who own that airport; and regarding this whole obligation thing, the County is already Federally obligated but it is not getting any of the benefits through the form of being compliant with FAA to the point where the County can accept FAA Grant dollars.  He stated all of those things about working with advisory circulars and doing all of those things, all of those things had to happen to even get to the point of being here today where the Board is talking about accepting FAA Grant funds.  He stated there is no light switch that turns on the day after the Board accepts those funds, it is already on; that is the Airport the Board will see now and into the future; what people are trying to do is comply back with the Master Plan to actually make it a safe place to operate; and he takes issue with the statement about Valkaria Airport supporting terrorism, because that is just a load of crap;
it is that kind of hate speech that takes what could otherwise be an informational debate, and turns it into something that is not; this is about making the Airport a safe place to operate; it is not about changing the operational character; and he guarantees the Board that none of the safety operators will operate at that airport at night with those lights that are out there; it is not what the lights are designed for; he trained at FIT and he knows what its policies are; and they do night operations at the Melbourne Airport because it is a fully-lit area.   He encouraged the Board to go forward and get an Engineering Consultant so some expertise will be on board to actually decide what is viable, what the priorities should be, how it can best be implemented, and work within the scope and limits of the Master Plan the Board approved.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to authorize advertisement of Request for Proposals (RFP) for professional services from an aviation engineering consultant; appoint a Selection Committee consisting of the Valkaria Airport Manager or designee; Facilities Director Steve Quickel or designee; and Utility Services Director Dick Martens or designee, with the authority to negotiate for the Chairman’s signature; and approve staff to pursue grant funding for the following CIP projects listed in the Airport Master Plan as near-term high priority safety-related projects:  1) runway and taxiway painting/marking; 2) Airport signage; 3) Airport beacon; 4) Lighted wind cone; 5) Precision Approach Path Indicator (PAPI); 6) Runway End Identifier Light (REIL) for inclement weather; 7) Segmented circle; and 8) Drafting of an Exhibit “A” property map, for future Board consideration.

 

 

Chairman Nelson stated the one question that continually comes up is the one of obligation of the County with the acceptance of FAA dollars; and inquired if there is any way the Board can get a definitive resolution to that question; with Airport Manager Steve Borowski responding he has done this a number of times, and they have most recently a letter from the FAA Legal Counsel, Jonathan Cross, which is attached to the next Agenda Item involving Valkaria Airport rather than this one, but it addressed the point.  Mr. Borowski stated Valkaria Airport is already a Federally-obligated airport; it has been for over 50 years; the Airport was a World War II training field for the Navy; in 1958 the United States deeded the Airport to the County under the Surplus Property Act; and it was subjected to a number of reservations, conditions, and restrictions in the quit-claim deed and to the subject of the surplus personal property act.  He advised that additionally, the County has taken over the years a number of grants from FDOT; one of the conditions of the FDOT grants is that the Airport maintain eligibility for the FAA grants; and the Airport has to comply with everything it has to be FAA eligible already pursuant to the FDOT grant.  He stated FAA assurances are essentially identical to the Surplus Property Act, quit-claim deed, and FDOT Grant requirements the County is already subject to; there are a few with each grant accepted for a specific project, there are a few assurances that come with that grant that the County is not already subject to;
but those are project-specific including things like using U. S. manufactured steel products on some projects the FAA funds or preferences for Vietnam disabled Veterans on some of those projects.  He stated by agreeing to FAA money generally, the County will not become to any new restrictions or conditions not already subject to. 

 

Chairman Nelson stated the actual Agenda Item itself is for not only the approval to negotiate, but it is also to pursue grant funding; and his preference would be to understand what grant the County is going for, for what purpose as opposed to just give a blanket approval for seeking grants.  He stated he is comfortable with the engineering firm but a little uncomfortable with that blanket kind of pursue grants.  Assistant County Manager Mel Scott advised if it is pleasure of the Board staff can narrowly define the intent of the Agenda Item to get the okay to pursue the grants for the items specifically listed in this Item and nothing more; and to bring each and every one of them back to the Board to secure those grants.  He stated staff would not take this agenda item as a blanket approval to pursue if it is not specifically identified on this list of items.

 

Commissioner Infantini stated with Housing and Human Services the Board pretty much allow Ms. Williams to go forth and seek grants to better the County; it seems like the Board is trying to restrict one department while enabling another; and she is just trying to be consistent.  She stated she wants to go forward with the motion as is.

 

Chairman Nelson stated he does not know if there is a blanket where staff can apply for anything they want to; he still thinks they will need Board approval to apply for grants; but he thinks the impact of a grant for an airport is different than the impact for housing subsidy for instance; there are issues the Board would want to look at and review; and inquired if Items 1 through 8 contained in the Master Plan, which was previously approved by the Board.  Mr. Scott advised Items 1 through 7 are contained in the Master Plan; and item 8, which is the drafting of the property map, is a condition that is found in Attachment 1 where the FAA requests the property map as part of the pursuit of the previous items, which are listed in the Master Plan update.  He advised this is page 9-6 in the Master Plan, all specifically listed.  Chairman Nelson inquired if these items are intending to facilitate night operations; with Mr. Scott responding they are intended to better identify the Airport, its landing surfaces, and fly safe approach paths to get to the Airport vicinity.  Mr. Scott stated it is his understanding that the types of safety improvements serve to encourage night flights would be the entire runway lighting and things of that nature.  Chairman Nelson inquired what happens if someone tries to use them at night for landing; with Mr. Scott responding he is not a pilot.  Chairman Nelson stated he thinks he recalled from a previous meeting is the County cannot restrict night landings even without lights.  Mr. Scott advised that point is a current non-restriction.

 

Chairman Nelson stated he is not going to support the item, because he would prefer to go on a case-by-case basis to understand what those grants are instead of giving the eight approval’s; and it would be his preference to actually have a request come back for each of those.

 

Chairman Nelson called for a vote on the motion.  Motion carried and ordered; Chairman Nelson voted nay.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve Contract with Florida Department of Children and Families for continuation of homeless service coordination as lead agency for the Brevard Continuum of Care Coalition; ad authorize the Chairman to execute future modifications, extensions, and/or amendments to the Contract, contingent upon approval of the County Attorney and Risk Management. 

 

 

Interim County Manager Stockton Whitten stated he did not know if the Board pulled its applications from the last time, but he thinks it is the first column; and he did not know if the Board would be prepared to do that today.

 

Chairman Nelson inquired who each Commissioner wanted to nominate.

 

Commissioner Anderson stated his pick is Kenneth Johnson.

 

Commissioner Bolin stated her choice is Jynnifer Smith.

 

Chairman Nelson advised his pick is Nancy Mellor.

 

Commissioner Infantini stated her choice is Robin W. Lovejoy.

 

Commissioner Fisher stated his pick for the Animal Welfare Working Group is Judith Weaver.

 

Chairman Nelson inquired when the next Board meeting is; with Mr. Whitten responding September 15^th is the next regular meeting.  Chairman Nelson stated the Board can come back at its next meeting and pick from that group. 

Commissioner Infantini stated there are two at one and one at all the others; and inquired why the Board does not go with majority rules.

 

Chairman Nelson stated the majority is usually three of five.  He inquired when the very next meeting is; with Mr. Whitten advising the Board has the Budget Workshop on September 8^th, which is next Tuesday.

 

The Board reached consensus to select Kenneth R. Johnson, Jynnifer A. Smith, Nancy Mellor, Robin W. Lovejoy, and Judith Weaver for consideration as a replacement for Nicholas Stack, who resigned his appointment from the Animal Welfare Working Group; and direct staff to bring the item back to the Board for final selection at the September 8, 2009 Board meeting.

 

 

Chairman Nelson stated regarding the appointments to the Animal Services and Enforcement Dangerous Dog Council, these are two alternate positions; and he suggests having a nomination from September 1^st through October 1^st, and let the Board approve on October 20^th. 

 

Commissioner Infantini stated she wants to change the requirements, because she was supposed to appoint someone, but apparently they did not qualify; she would like to lessen the requirements; and it is her person who is missing. 

 

Assistant County Attorney Morris Richardson stated those conditions, the requirements for the appointees are by Ordinance, so the Board would have to do a formal Ordinance amendment to change those; additionally, historically somehow individual Commissioners were making some appointments by District; but the way the Ordinance reads, they should be appointed by the entire Board.  He advised they need two veterinarians, two kennel workers, and two dog behavioral trainers; and there needs to be a primary and a back up for each of those three specialties. 

 

Interim County Manager Stockton Whitten inquired if right now that the Board is only looking for the alternates for the kennel worker and dog behavioral trainer.  Interim Animal Services and Enforcement Director Bobby Bowen responded that is correct.

 

Commissioner Bolin stated she thinks the Board should direct staff to advertise for the openings.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to grant permission to advertise for alternate kennel worker position and alternate dog behavioral trainer to serve on the Animal Services and Enforcement Danger Dog Council; to accept applications through October 1, 2009; and direct staff to bring the applications to the Board for selection at the October 20, 2009 meeting.

 

 

Chairman Nelson inquired if the Agreement needs to be continued for some period of time; with County Attorney Scott Knox responding the Board can extend the Contract until a new selection.

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to direct staff to obtain bids for court reporting services for the County; and to extend the Agreement with Brevard Associated Courts Services, Inc. until a new selection is made.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to approve request for an Attorney General’s Opinion on whether Section 125.05, Florida Statutes, grants exclusive jurisdiction over Valkaria Airport to the County, and whether the Town of Grant-Valkaria may enact zoning ordinances contrary to the County’s exclusive jurisdiction.  Motion carried and ordered unanimously.

 

 

County Attorney Scott Knox stated this is a Code Enforcement Special Magistrate decision that should be considered; under the law, the only appeal available to these folks is the Circuit Court; and there is not much the Board can do except listen to what the Huber’s position may be.

 

Dorothy Huber advised that the Special Magistrate told them to come before the Board.  Attorney Knox advised the Special Magistrate should have read the law before he told them to come here.

 

Chairman Nelson stated Mr. and Mrs. Huber can speak, but they need to understand that there are limitations.

 

Dennis Huber stated the problem they had originally is they had a permit to do a demolition on this property; there was a mobile home on it; and three months into the permit, Code Enforcement came and tagged them with a Code violation.  He advised they still had another 90 days on the open permit; and they should not have been violated the first time.  He stated that is why they are saying they would like the Board to waive the $350 and the five-year repeat fine window, because the original violation they were under an open permit, so it should not have been a violation to start with.

 

Chairman Nelson inquired if that was all of the things the Special Magistrate heard; with Mr. Huber responding he did not hear that because they did not realize; and stated their realtor pointed out to them that they still had an open permit when they had the violation. 

 

 

 

Ms. Huber stated the Special Magistrate, when they went for the second violation, he is the one who told them if they had an open permit that is the only way it is allowable to have items out; and it was through his instruction they learned that.

 

Chairman Nelson inquired if that changes any of the circumstances.  Attorney Knox advised if staff can confirm that there was an open permit and that there was a mistake of fact that was presented to the Special Magistrate, certainly someone can ask for a rehearing to present the mistake of fact.

 

Mr. Huber stated they have the original permit, and the permit that was issued after that.

 

Chairman Nelson stated the Board would need to look to see if, as they have stated, that there is a mistake of fact.

 

Interim Code Enforcement Director Wanda Scanes stated the demolition permit was issued on February 20, 2008 to demolish a mobile home during the initial case in 2008; according to the permit, it was closed on March 13, 2009 with the following comment:  “Per owners, the mobile home was removed a year ago.  The items observed by the officer on May 20^th were not demolition materials from the mobile home that was removed in March 2008.”

 

Chairman Nelson inquired if that information presented to the Special Magistrate.  Ms. Scanes advised she does not know if that was presented to the Special Magistrate; but the items on the property had nothing to do with the demolition permit.

 

Ms. Huber stated they did; and that was May 20^th of this year.  Ms. Scanes advised it was in 2008.

 

Attorney Knox stated these folks are trying to claim that there is something that the Special Magistrate did not consider or he was under some misimpression as to what the facts were; the way to resolve that is to go back before the Special Magistrate and ask him to reconsider it based upon additional evidence that he did not present or he did not know about; and see if the Special Magistrate will reopen the case for them.  He advised if the Special Magistrate does not do that, the only recourse is to go to Circuit Court and try to get it resolved.

 

Commissioner Infantini stated from her understanding the only time a person has to go before a Special Magistrate is if a person has a repeat violation; they got a repeat violation because based on their interpretation they had an open permit in February 2008; in May 2008 they were violated; but they should not have been violated because they have an open permit.  She noted the only reason why they went before the Special Magistrate; and if the first violation was not lawful or correct, they would have never gone before the Special Magistrate for the repeat violation.

 

Ms. Scanes stated they had an initial violation and they brought the property into compliance; the last hearing on August 20^th was called a recurring violation; so, they did not go the first time because they brought their property into compliance; but because of the recurring violation they had to come to the hearing before the Special Magistrate.

  

Mr. Huber stated the first one was not a violation.  Attorney Knox stated either way the Special Magistrate has entered an order; they have a choice, they can go back to get the Special Magistrate to unravel it, they can get the Circuit Court to unravel it, or if staff is willing to stipulate that they had an open permit and this never should have happened to begin with, they can go back and ask them to withdraw the order; however, it sounds to him like staff does not agree with them; and in order to get past where they are right now, they will have to go back to the Special Magistrate and say to him that they did not present this information to him and would he please reconsider based on this information.

 

Ms. Huber stated the Special Magistrate said he did not have the authority to change it, the Board has to do it.  Attorney Knox advised then their remedy is Circuit Court.

 

Commissioner Anderson stated he respectfully disagrees with Attorney Knox; the Board is the charging agency; anytime it can say it is not a violation as a Board and it is done; and that is the way he reads the law.  Attorney Knox stated he disagrees.  Commissioner Anderson stated they have a right to readdress their elected officials for what they perceive as wrongs done to them; that is what they are doing at this time; the Board could direct the County Manager to direct his staff to go back and revisit the whole thing about whether it was demolition debris on the first go around; and inquired if the Code Enforcement have a building background and do they know what is needed for demolition.  He stated he does not like the idea that the Board is going to force people to spend money to go to Circuit Court.

 

Commissioner Fisher stated in one of the pictures he sees tires; and inquired if tires are part of the demolition.  Mr. Huber stated the tires came from the demolition.  Mrs. Huber stated it was a mobile home and a shed.  Mr. Huber stated the problem with the tires is he was putting stuff out for the garbage men that the demolition people did not take away; originally the garbage men would take tires; and then they changed policy to where they would not. 

 

Chairman Nelson stated maybe Mr. and Mrs. Huber can sit down with staff to see if there is any agreement on the facts as they are; and if they do not have agreement on that, at least they will know what their position is and theirs; they have the ability to ask the Special Magistrate to rehear this; and failing that, their final recourse is court.  He stated the Board’s problem is they do not have any of the information, other than a picture; if there is an error that has occurred in the process, the Board will get it rectified; it will not cost them any more money at least for the first two steps of talking to County staff and then to talk to the Special Magistrate again; but if they do not get change in that, the next course would have to be the court system.

 

Mr. Huber stated the Code Enforcement Representative should have known that this was not a vacant lot, if she would have done her homework on the first violation, because they had an open permit; and that was the second thing she should have paid attention to.

 

Chairman Nelson stated those are all things he needs to point out to staff and to the Special Magistrate.  Mr. Huber advised they have tried; and staff does not want hear it.  Mrs. Huber stated they have personally gone to the Code Enforcement Officer.  Mr. Huber stated he asked to talk to a Supervisor of Code Enforcement and they would not give them one.

 

Attorney Knox stated there are always other options; they have a 30-day window to get something to Circuit Court if they want to challenge the decision of the Special Magistrate; if there is some reason and some disagreement over an interpretation of an Ordinance, there may be the possibility that staff can look at that again, or if there is a disagreement over what the Ordinance really says, maybe the Board can do something to fix the Ordinance to make it clear one way or the other; and obviously it sounds like some disagreement here as well.

 

Commissioner Infantini inquired if Mr. and Mrs. Huber could contact her office and work with her office and her office will work with them and staff, because there is a sequence of events, and if there is one sequence the recourse is one direction; but if it is a different sequence it would be here that the Board could resolve that; and if they would be willing to working with her office that would be great.

 

Commissioner Anderson stated in the past he had asked for any open cases of Code Enforcement violations in his district; he has not received reports; and he would like to call those homeowners as they get cited.

 

Assistant County Manager Mel Scott stated as a point of clarification, staff will follow up on that, but they have been sending them weekly to his office.

 

The Board reached a consensus authorizing Commissioner Infantini to work with Dorothy and Dennis Huber and staff regarding the Code Enforcement Special Magistrate’s decision of Mr. and Ms. Huber.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve contracted operators of the Brevard Job Link Career enters for a period of 2009 through 2012.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve and authorize the Chairman to execute the forms required by the Workforce Investment Act (WIA) for approval of modification required by law to the Two-Year workforce Services Plan.  Motion carried and ordered unanimously.

 

 

Interim County Manager Stockton Whitten stated he had a conversation with Milo Zonka and City of Palm Bay City Manager Lee Feldman; and their concerns are very similar to the letter he passed out from the City of Melbourne in that they would ask to get a portion of the County’s allocation.  He stated after he does all of this, Mr. Luger will explain to the Board and the listening audience what this program is.  He stated the allocations actually go to cities that have over 100,000 in population and counties; the City of Palm Bay has its specific allocations; the other cities in the counties do not; and the Board can see from the letter from the City of Melbourne that it wishes to get an allocation of its own so they can induce businesses specifically to their cities.  He stated the next issue is going to be how long is the application period left open, because ultimately this is going to be an application period for the Board to consider for those companies that are going to come in and request that it provide the conduit for this financing; the request of Embraer was to actually take advantage of one of these pots of monies; and the initial thought was to leave the application period open from 30 to 60 days.  He stated the most important thing for any company that wants to take advantage of these tax credits would be for the Board to get the ordinance done as soon as possible, because at the end whatever dollars they can spend, depending on the Board’s approval of their project, they can actually take advantage of these programs.  He stated staff will have to work to get that ordinance in place; it is very similar to the Industrial Development Bond financing that the Board is familiar with; and he will turn it over to Mr. Lugar, and Deputy County Attorney Shannon Wilson may have some other issues she can help clarify.

 

Economic and Financial Programs Director Greg Lugar stated Mr. Whitten basically covered a lot of the points about this program; the American Recovery and Reinvestment Act was approved by Congress at the beginning of the year, and the President signed it in February 2009; what this portion of this stimulus package is, is they opened up two more bonding programs for State and local governments, and made certain changes in the Internal Revenue Codes; one of the recovery bond programs is dedicated for local governments for infrastructure, workforce development, and capital facility improvements; and the other is very similar to Industrial Development Revenue Bonds primarily for manufacturers, those have been in existence for 30 or 40 years, it is one of the primary economic development tools that all local governments have, and that bond pool is called the Facility Bonds.  He stated regarding Facility Bonds, the Treasury has allocated a little bit over $28 million that the businesses in Brevard County or any business planning to relocate in Brevard County can utilize for infrastructure, capital
improvements, and those things to start up or expand.  He stated the Recovery Zone Bonds has one kind of a limiting factor in that the bonds themselves, again they are not money or pot of money that comes from Congress, Treasury, or the State, those allocations that are received primarily are those loans that a business or a local government would borrow from a financial institution; they only come through the Board as conduit forum, and typically achieve some kind of an interest savings; with Facility Bonds, the interest is tax exempt, meaning it is probably 100 to 200 basis points less than what a commercial loan would be on typical businesses trying to borrow in the County; for the Economic Development Bonds that local governments may utilize, the Treasury is actually buying down the interest rate by directly subsidizing 45 percent of the interest rate; and every time a local government has to pay interest, it will receive 45 percent of that cost back for the term of the loan.  He mentioned that one of the limiting factors is that these bonds have to be issued either/or by December 31, 2010; it is just a short window that is available for businesses or local governments in Brevard County to be able to utilize; and that is one of the reasons he and Mr. Whitten decided the ordinance needed to be fast tracked establishing this program and establishing Brevard County as a recovery zone, which is the primary reason for this ordinance in front of the Board.

 

Mr. Whitten stated one of the biggest issue he sees with regard to the cities request will be diluting the amount of the dollars that can go to a particular project, because the Board will see with the letter from the City of Melbourne that it is asking for a portion of what has been allocated to the County; as a sort of regional government, whether the project is in the city or unincorporated area, the Board would care less than the cities would; and if the County splits the money between the cities and there is some diluting of the bond pool; but the cities are beginning to show some interest in wanting to have their specific pot of money so they can induce businesses to their particular cities.

 

Chairman Nelson stated the Board also risks them not being successful and missed an opportunity to expend those dollars; he would prefer to keep it intact; they are capable of submitting requests, or having their businesses submit requests, just as anyone else; and he does not see a reason to create an allocation.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to authorize a public hearing to consider adopting an ordinance that effectively designate Brevard county as a Recovery Zone for the purpose of financing eligible activities and projects with Recovery Zone Economic Development Bonds and Recovery Zone Facility Bonds.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve payment of award to Raleigh Berry, Natural Resources Management Department, who submitted recommendation (EIP #382) under Brevard County’s Employee Innovations Program, in the amount of $5,000.  Motion carried and ordered unanimously. 

 

 

 

 

 

 

 

Upon motion and vote, the meeting adjourned at 12:54 p.m.

 

 

 

 

 

ATTEST:                                                         ___________________________________

                                                                        CHUCK NELSON, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)