The Board of County Commissioners of Brevard County, Florida, met in regular session on August 13, 1996, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Nancy Higgs, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: Commissioner Randy O?Brien who was in Washington, D.C.

The Invocation was given by Pastor Ron Meyr of Faith Lutheran Church, Melbourne, Florida.

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

APPOINTMENTS, RE: SIGN ORDINANCE TASK FORCE

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to appoint Tom Wingert, 415C Pineda Court, Melbourne 32940 and Chickie Noble, 1479 Cypress Trace Drive, Melbourne 32940, to the Sign Ordinance Task Force, representing District 4. Motion carried and ordered unanimously.

EXPENDITURE AUTHORIZATION FROM GENERAL FUND?S EARNED REVENUE ACCOUNT, RE: PURCHASE OF FLIR SYSTEM

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize expenditure of $118,700 from the General Fund Earned Revenue Account to purchase and install a thermal imaging forward looking infrared (FLIR) System to enhance the operation of airborne law enforcement. Motion carried and ordered unanimously.

APPROVAL, RE: HOME CONSORTIUM CONSOLIDATED ACTION PLAN

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to authorize submittal of the HOME Consortium Consolidated Action Plan to HUD, authorize the Chairman to execute Certifications for the Fair Housing, Anti-displacement and Drug-Free Workplace, CDBG Grant, HOME Investment Partnership Program, Emergency Shelter Grant, and Housing Opportunities for Persons with AIDs Program; adopt the Brevard County Citizen Participation Plan; and approve the Budget Change Requests to transfer the funds.

Cheryl Bruns, representing Concerned Taxpayers of Micco, advised they are opposed to the relocation of the community center from Micco Park, as it does not serve the purpose approved on August 19, 1994.

Walter Butler, representing North Brevard Civic League, expressed concern about a rumor that money for target areas which is needed to improve roads and drainage, will be diverted to Merritt Island.

Wally Kramer thanked the Board for the additional funds for the Micco Community Center.

George Koraly, representing Concerned Taxpayers of Micco, opposed the community center being built on Allen Street as it will be a safety hazard for children going back and forth from two facilities. Chairman Cook called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR VARIANCE FROM BREVARD COUNTY COASTAL CONSTRUCTION SETBACK LINE - PATRICIA KRAMER

Chairman Cook called for the public hearing to consider a request from Patricia Kramer for a variance from the Brevard County Coastal Construction Setback Line.

Ed Fleis, representing Patrick Kramer, presented documents to the Board; described the property; and advised of the problem that requires a variance from the setback line to be resolved.

Commissioner Higgs and Mr. Fleis exchanged questions and answers on the pros and cons of granting the variance. Discussion ensued on the pool, deck and house encroachments, existing slab, disturbed area, and revegetation of the area.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to approve a variance to the Brevard County Coastal Setback Line of 14 feet for the house and 22 feet for the pool and deck as requested by Patricia Kramer, and pursuant to Ordinance No. 85-17, as all construction will take place in the existing disturbed areas and native vegetation will be planted. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: FINDINGS OF COMMITTEE ON ONSITE CHILD CARE

Assistant County Manager Joan Madden explained the procedure they followed to determine the feasibility of onsite child care for employees? dependents; and indicated it is not feasible and is premature at this time.

Chairman Cook acknowledged receipt of the report, and indicated the Board could investigate it further at a future date since it is not feasible at this time.

PERMISSION TO ADVERTISE EXECUTIVE SESSION, RE: DYNES v. BREVARD COUNTY

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize advertising and scheduling an executive session to discuss settlement negotiations and strategy sessions relating to litigation expenditures of Estate of Dynes v. Brevard County lawsuit. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - SEBASTIAN INLET SPORTFISHING ASSOCIATION, RE: DEVELOPMENT OF ARTIFICIAL REEF OFF SEBASTIAN INLET

Michael Rowland, Chairman of the Code Enforcement Board, introduced Read Sawczyn, student of the University of Miami, majoring in marine science, and advised Mr. Sawczyn put together the project, so he will turn over the presentation to him.

Read Sawczyn advised they are asking the Board to be the permit holder because it must be held by a government body, which is why the Sportfishing Association is unable to do it; and the cost to the County is nothing. He explained the overhead slides, stating the money comes from fishing and hunting licenses distributed by the State to different counties as grants for projects; and the benefits of the reefs are they give fishermen and divers a place to go, attract fish, help the local economy, and increase biomass. He mentioned Dade County?s study depicting $122,000 gained annually to that local economy; and stated it enhances the environment, gives migratory species a place to go, and puts back the reefs that are destroyed by human interaction, hurricanes and other storms. Mr. Sawczyn showed a slide of the artificial reefs located around the State of Florida; and stated South Brevard County and Indian River County have none, and Brevard County can gain by having artificial reefs off Sebastian Inlet in a joint venture with Indian River County. He stated the Association has been in existence for 25 years, and identified some of its activities. He stated the grant from Department of Environmental Protection is $25,000 for each County; with both Counties involved, it will double the amount to put more enhancements out there; Indian River County has voted to be a permit holder; and he has a permit application, signed by Indian River County, which he is asking the Board to sign.

Commissioner Ellis inquired if the Inlet Commission has anything to do with the project; with Mr. Rowland responding no. Mr. Rowland stated the Inlet splits the two counties; and there is economies to gain by a symbiotic relationship.

Commissioner Higgs inquired if the Association is asking Brevard County to be a joint permit holder, and what it mean in terms of liability; with Mr. Rowland responding the applications will be separate for two permits and two grants, but because of the geographic location they have incorporated it. Commissioner Higgs inquired what it means to be the permit holder; with Mr. Rowland responding an individual or club cannot hold a permit; it has to be a county; and when that is done, they will apply for the grants. Commissioner Higgs stated the scientific community is moving forward with endorsing artificial reefs, but they have to know what they are doing and do thorough research on where it will go; the argument is whether it attracts and brings fish there or actually produces more fish; and they have yet to make a final conclusion on that. She stated the Board should explore it as there seems to be other benefits, but she wants to know what it means to be the permit holder and what the liabilities are. She stated they have worked hard and the Association is ready to step forward and do further work on the artificial reefs.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to direct staff to explore the possibility of an artificial reef off Sebastian Inlet, and advise the Board what it means to be the permit holder, what the liabilities may be to the County, what the County would be expected to do, what the process would mean in terms of how Department of Environmental Protection would handle the application, and what criteria would be looked at.

Mr. Sawczyn presented copies of articles from newspapers and magazines on the research done on artificial reefs and the various objects placed off the State?s coast.

Commissioner Scarborough advised there have been favorable television shows about artificial reefs off Florida?s coast; and he hopes the Board will not only be a permit holder, but will remain active throughout the process and be informed where the reefs will be placed. Mr. Rowland stated they will welcome that; it will be published and made available; and the Board will see the geographic locations where the sites will be. He stated the permit is good for five years, and they hope to get grants for each of the five years.

Commissioner Ellis inquired if the analysis for reef locations is done by Department of Environmental Protection; with Mr. Sawczyn responding Department of Environmental Protection?s standards are used; and they are tried and true. He stated the first artificial reef was installed in 1918; the boom started in the 1960's; and Department of Environmental Protection says what may be put down and what the bottom conditions must be like, and makes sure they are not placing a reef in the wrong place. He noted there are over 300 sites in Florida.

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

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Higgs, seconded by Commissioner Cook, to appoint and/or reappoint the following:

Sign Ordinance Task Force
Marguerita Engel, 605 Indian River Avenue, Titusville 32796
Lorene Shafer, 190 E. Olmstead Drive, #F6, Titusville 32780
Pamela Winn, 6305 S. Highway A1A, Unit 133, Melbourne Beach 32951
Sheila Schaefer, 411 Avenue A, Melbourne Beach 32951
Bob Wille, 2800 Aurora Road, Melbourne 32935
Floyd Rogers, 2761 Ohio Street, Melbourne 32904

Live-Aboard Vessel Committee
Penny Levin, 1414 Rose Court, Melbourne 32935
Bob Riley, 421 Colleen Avenue NE, Palm Bay 32907

Motion carried and ordered unanimously.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: PINTER v. BREVARD COUNTY

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to authorize the County Attorney to schedule an executive session to discuss trial strategy and settlement of Pinter v. Brevard County. Motion carried and ordered unanimously.

RESOLUTION AMENDING RESOLUTION NO. 93-287, RE: ESTABLISHING PARKS RULES, USER POLICY, AND FEE SCHEDULE

The Board discussed whether or not a permit can be denied if an intent to violate any laws or Ordinances is expressed in the permit application, proposed provisions dealing with requirements for liability insurance, security clause, charging admission to events, commercial activities, events open to the public, specific events, use of alcoholic beverages, high risk category, charitable solicitation, rock concerts, fund raisers, freedom of speech, and capacity to pay for insurance.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to amend page 3, paragraph D.1, changing "that" to "than" and adding "or commercial activities as defined in the Ordinance" after "high risk activities"; and adding paragraph D.1.e. "Commercial activities and events open to the general public." on page 4. Motion carried and ordered unanimously.

Discussion continued on the criteria to determine if alcoholic beverages can be served at activities, requirement of liability insurance any time alcohol is served at activities open to the public but not at closed functions, and content of speeches.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution amending Resolution No. 93-287, pursuant to the provisions of Chapter 78, Use of Parks, Code of Brevard County, Florida, establishing the schedule of fees, charges, and the manner of collection of fees and charges for Brevard County Parks and Recreational facilities, repealing the prior schedule of fees and charges, establishing the rules and use Policy, repealing the prior rules and use Policy, providing for severability, and providing an effective date, as amended. Motion carried and ordered unanimously.

The meeting recessed at 6:45 p.m. and reconvened at 6:55 p.m.

DISCUSSION, RE: SUBMISSION OF HABITAT CONSERVATION PLAN

Commissioner Ellis advised he put the Habitat Conservation Plan (HCP) item on the Agenda to discuss a few changes involving setting a defined mitigation ratio and expiration time limit.

Mead Brooks stated he is interested in a program to save the scrub jay, and expressed concern about a strip of land that is being destroyed on the opposite side of his lake that should be a sanctuary strip.

Harry Fuller, representing Space Coast Builders Association, advised there are 150,000 acres of federal property in wildlife preserve in Brevard County, 12,000 acres of scrub on Merritt Island, 10,000 acres in Cape Canaveral, 400,000 acres in Ocala National Forest, and 750,000 acres under government control all for scrub jays in the State of Florida, yet the Board is asking the citizens of this area to preserve more than 9,000 acres at $91,000,000 if they want to. He stated a Report funded by the Florida Game and Fish Commission identifies acreage for the birds for 100% survival; commented on polygons, habitats, and the Endangered Species Act changes; and requested the Board wait to see what happens with that Act.

Lillian Banks stated she agrees with the letter Norma Savell will read and disagrees with any more land being taken by any government as endangered lands or for endangered species.

Diane Stees, representing Indian River Audubon Society, stated all affected groups do not support this solution; it was a consensus; $300,000 was spent to complete the study and drafting of the plan; the goal was to insure viability of the scrub jay; and instead it is a way of getting around the responsibility to protect the scrub jay. She requested the Board not take action on the proposal as it is not well thought out; and stated the CARL vote is four months away, and the citizens of Brevard County deserve more from the Board on this issue.

Commissioner Ellis stated what was submitted locked in mitigation ratio and sets time limit, so to say it is a new plan is out of line. Commissioner Higgs stated the item refers to using federal, County, and St. Johns District lands as part of the plan; the County is required to comply with the Endangered Species Act; the HCP is an attempt by the citizen group to come up with solutions; and the land before CARL is $14,000 an acre and about $30 million, not $90 million. Commissioner Ellis stated Kennedy Space Center is in Brevard County, and the County should get credit for that land.

Discussion ensued on the requirements for maintenance, financial responsibility, number of acres required to purchase, achieving survival of the species, population viability analysis, and funding of a plan.

Mary Todd, representing the Sierra Club, advised the benefit of the HCP is to ensure survival of the scrub jay; the one-one mitigation ratio is low; the U.S. Fish and Wildlife Service will reject the plan because it will not ensure survival of the scrub jay; and it will be a source of dissention and embarrassment; and requested the Board achieve the goals by waiting for answers from CARL then authorize the Steering Committee to finish the plan.

Al Notary objected to 9,000 acres being taken off the tax rolls and out of private ownership; stated the government will not take care of the land; and recommended a one page plan stating there is enough land to support 7,000 birds, which could take them off the threatened species list, if the government would properly maintain what it owns.

Hank Hurley stated there is ample land for scrub jays; he cannot see how the Board can go forward when it is not certain of a plan; EELS is looking at 11 parcels; Parks and Recreation has a lot of land; and the birds will be taken care of with ample property and food for them. He stated the federal government owns a big chunk of land and the County should have credit coming for that.

Don Simms advised the budget provides $654,754 for people and the Board is proposing to spend $100,000,000 for birds; the County cannot support the school system but would take land off the tax rolls for birds; the scrub jay is not endangered, it is threatened; and agreed with Commissioner O?Brien to capture the birds on private land and put them on public land. He inquired why the plan was not open for public vote, and why the County did not notify affected landowners. He suggested supporting people facilities and economic development rather than putting up signs for birds.

Delores Kane stated she does not understand why the County would spend that much money for the birds when other things are needed; and suggested the Board do nothing at this time.

Margaret Hames requested the Board not consider what has been proposed as the HCP; and stated it will not be accepted by the Fish and Wildlife Service. She stated the federal lands are separate from the scrub lands in the rest of the County and cannot be considered, and the St. Johns District has little scrub. Ms. Hames stated the scientific advisory group was not asked enough questions; the policy was 2 to 1 mitigation, but when the cores were established, it changed to 4 to 1; and now the Board is proposing 1 to 1 mitigation which will not be approved.

Commissioner Ellis inquired how will they pay for maintenance; with Ms. Hames responding EELS funds. Commissioner Ellis stated if they cannot use EELS funds it will have to come from the General Fund; with Ms. Hames responding that is an assumption. Commissioner Ellis inquired if EELS funds can be used for non-EELS properties; with County Attorney Scott Knox responding no.

The Board discussed the original HCP financing plan, use of EELS funds, creating endowment fund to maintain the land, CARL funding, funding for staff to prepare the new HCP, mitigation ratio, purchase of core areas, and phase release of lands.

Priscilla Griffith, President of Partnership for Sustainable Future, advised the proposal before the Board is premature, inappropriate, and a waste of taxpayers money; and suggested the Board wait to hear from the CARL Program then go on to the Steering Committee.

Norma Savell read a letter; opposed the $90 million proposed expenditure; stated government owns enough land in Brevard County to sustain the bird; and the scrub jay survival will be ensured by the lands they already have.

Martin Lamb stated there has been a lot of money expended on this program and people worked on it for a long time with no results; alligators were considered endangered and a year later they were everywhere; and he has seen scrub jays in residential areas and people?s backyards. He stated after purchasing land for the dusky seaside sparrow it became extinct, but the land was not turned back to the owner; and it is a system of taking land. He stated the scrub jay is not the most important issue in Brevard County; and people have lost faith in their government because of the time spent on birds instead of people.

Micah Savell stated he is sick and tired of hearing about the Steering Committee and 360 birds when people who own the land are affected and the Board does not want to spend $8,000 to notify them. He suggested putting it on the ballot so people will know that $75 million will be taken off the tax roll along with $15 million from EELS. He stated it will be $3,800,000 a year in tax revenue being lost; and the plan needs to be amended and put on a referendum to let the people vote on it.

Bob Leichtenberg stated the only people who have not contributed to the harm of the scrub jay are the people the County wants to take the land from; and gave scenarios of other government agencies buying land for various purposes. He stated the Board should figure out a way to preserve the bird without taking people?s land; and inquired when will the Board stand up for the people who have not hurt the birds.

Commissioner Higgs inquired if Mr. Leichtenberg wants the Board to let people deal with Fish and Wildlife Service without a plan to help them get a local permit and leave the landowners on their own; with Mr. Leichtenberg suggesting the County take Fish and Wildlife Service to court and let it prove the scrub jay is endangered. He stated the birds are all over his property, and he likes them, but the Board should not take people?s land. Chairman Cook stated a letter was sent to the Service asking what it is looking for, but it does not know.

Michael Blasky stated it sounds like the Board is taking its direction from Fish and Wildlife and representing it instead of the citizens; mitigation is extortion; the Fifth Amendment gives them the right to own property; and part of that is enjoyment and not harassment by government. He suggested the Board defend the people of Brevard County against Fish and Wildlife Service.

B. B. Nelson advised he is working on the Lowe?s Project at I-95 and SR 50; it will cost $274,000 for mitigation because of wetlands; and he hopes the Board has enough common sense not to let the plan pass. He stated it is fraudulent to say the scrub jay is threatened; and requested the Board not spend money for the birds, because the needs for people are more than the needs for those birds.

The meeting recessed at 8:30 p.m. and reconvened at 8:50 p.m.

County Attorney Scott Knox advised the Byrd-Harris Act could come into play if it is new regulations; and explained certain provisions of the Act.

The Board discussed legalities, designating core areas, release of lands not in the core areas, CARL funds, and federal government requirements.

Commissioner Scarborough requested advice from the County Attorney; with Mr. Knox responding the Board could let it ride and see what happens, pursue the CARL funds to alleviate the problem, or take on the federal government to see if there is a way to fight the issue.

Assistant County Manager Stephen Peffer explained the reason for the plan. Dr. Duane DeFreese stated the Byrd-Harris Act is difficult because there is little case law.

Discussion continued on the legal aspects, properties Fish and Wildlife Service will not accept, and the CARL proposal.

Commissioner Ellis recommended a sunset provision, lock on mitigation ratio, and immediate release of non-core property be included in the plan.

Discussion resumed on determining what the Fish and Wildlife Service expects in a plan, providing a clear definition to the community on what the Service will and will not accept, no defined objective, whether to amend the plan and go forward or not go forward, postponing it until after the budget is established, and the Chairman and Congressman Weldon meet with Fish and Wildlife Service.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to authorize the Chairman to request Congressman Weldon to join him and appropriate staff and meet with U.S. Fish and Wildlife Service to address what it requires for a Habitat Conservation Plan, and return with clear definition of what it will and will not accept in the HCP.

Commissioner Scarborough recommended any Commissioner who has items to be discussed should bring it to the Chairman at the next meeting. Dr. DeFreese advised a Countywide plan would include the municipalities and they should be involved. Commissioner Ellis requested the sunset provision, release of non-core properties and mitigation ratio be discussed at the first meeting in October. Chairman Cook stated hopefully in October the Board will make a decision.

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

JOINT MOTION AND STIPULATED ORDER AND FINAL JUDGMENT, RE: BREVARD COUNTY v. DAIRY ROAD, ET AL

Chairman Cook inquired if the survey fees were not included because they were not considered reasonable; with County Attorney Scott Knox responding yes, they were too high.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to approve the Joint Motion and Stipulated Order and Final Judgment regarding Brevard County v. Dairy Road Plant Farm, Inc. et al lawsuit involving Dairy Road Plant Farm, Inc., Cooke, Manning, Hearndon, M. Hearndon, W. Parsons, Withrow, Legg, Manning, Slaughter, Alexander, Gary, Reed, Sigman, and Lanier parcels. Motion carried and ordered unanimously.

PUBLIC COMMENT - MICAH SAVELL, RE: HABITAT CONSERVATION PLAN

Micah Savell stated the Habitat Conservation Plan should be displayed for the benefit of the people, and all the properties identified. He stated there is a need for 5,100, 8,600 or 26,000 people to be notified; and he tried to notify them about the plan. He mentioned a class action suit and the article in the TODAY Newspaper on what is going on with the land.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 9:40 p.m.

MARK COOK, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(SEAL)