MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

December 15, 2009

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 15, 2009 at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Mary Bolin, Commissioners Robin Fisher, Chuck Nelson, Trudie Infantini and Andy Anderson, County Manager Howard Tipton, and County Attorney Scott Knox. 

 

 

The invocation was given by Dave Dingley, Special Assistant to District 4 Commissioner Mary Bolin.

 

Commissioner Chuck Nelson led the assembly in the Pledge of Allegiance.

 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve the September 15, 2009 and October 1, 2009 Regular Meeting Minutes.  Motion carried and ordered unanimously.

 

 

Yvette Torres performed Christmas Carrols for the Board and the ensemble.

 

 

Santa Claus stated he is happy to be with Brevard County again this year.  He presented gifts to each Commissioner, the County Manager, and the County Attorney; and wished everyone a very Merry Christmas.   

 

 

County Manager Howard Tipton read aloud a resolution commending Mary K. O’Neal for her 39 years of service to Brevard County.

 

Motion by Commissioner Anderson, seconded by Commissioner Nelson, to adopt a Resolution commending Mary K. O’Neal for her 39 years of service to Brevard County.  Motion carried and ordered unanimously. 

 

 

Mary O’Neal expressed appreciation to the Board for the recognition; and stated she would like to thank the Public Works Department, the County Manager’s Office, and the Commissioners’ staff.  She noted she would like to thank Lisa Russell for her hard work benefitting the American Cancer Society; and stated she, herself, has had a personal challenge this year with recurring cancer.

 

 

Chairman Bolin read aloud a resolution recognizing November 30, 2009 as Gryphon Group Security Solutions Day in Brevard County.

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to adopt a Resolution recognizing November 30, 2009 as Gryphon Group Security Solutions Day in Brevard County.  Motion carried and ordered unanimously. 

 

 

A representative from Gryphon Group accepted the proclamation and read aloud comments from Michael Vaden.  “For the last ten years Gryphon Group has had only one mission and that is to help over 15,000 American war fighters accomplish their mission and come home safely to their families.  Gryphon Group has brought over 40 high paying jobs to Brevard County, and spends approximately $3.5 billion in local small businesses as well; of course, we could not accomplish this without the unwavering support of Brevard County’s Board of Commissioner’s, County staff, Sheriff Jack Parker, countless hotel owners, land owners, restaurant owners and dozens of other small business owners.  Through this support the citizens of Brevard County should be proud of playing an important role in helping many fathers and mothers going in harms way for our nation to return home alive to their children.  Gryphon tries to be a positive force in our community and on behalf of the men and women of Gryphon Group we thank you for this honor and pledge to you that we will work hard everyday to be worthy of it.  Thank you so much.”   

 

 

Commissioner Anderson read aloud a resolution recognizing December 21, 2009 as National Homeless Persons’ Memorial Day.

 

Motion by Commissioner Anderson, seconded by Commissioner Nelson, to adopt a Resolution recognizing December 21, 2009 as National Homeless Persons’ Memorial Day.  Motion carried and ordered unanimously. 

 

 

John Farrell, Executive Director, Daily Bread, expressed appreciation to the Board for the Resolution recognizing National Homeless Persons’ Memorial Day.

 

 

Commissioner Anderson read aloud a resolution recognizing Lawrence Lawton, President of the Reality Check Program.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to adopt a Resolution recognizing Lawrence Lawton, President of the Reality Check Program.  Motion carried and ordered unanimously. 

 

 

Mr. Lawton expressed appreciation to the Board for the Resolution.  He read aloud two letters from youth that he has helped through the Reality Check Program, along with a letter from Yvonne Minus from the Melbourne Police Community Relations Council; and stated the letters were his Christmas presents this year. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Nelson, to adopt Resolution requesting State of Florida/FDOT to support infrastructure improvements for Exploration Park at Kennedy Space Center.  Motion carried and ordered unanimously.

 

 

Commissioner Fisher stated Mary Jo Foster donated funds to Country Acres through her Revocable Living Trust after she passed away; one of the things he would like to do with the funds is build a pavilion; everyone at Country Acres is in support a the pavilion; stated Ms. Foster donated $30,000; there is a bid of $19,830 to build the pavilion; and he would like a motion by the Board to accept the donation to allow the building of the pavilion. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve and accept the donation of a pavilion from Country Acres Auxiliary to be built on the Country Acres Campus.  Motion carried and ordered unanimously. 

 

 

Commissioner Nelson stated he was in two parades over the weekend; the Cocoa/Rockledge parade, which is unique because it marches between the two cities; there is a great deal of competition between the cities related to football; and this year, Mayor Larry Schultz had to wear a Cocoa High jersey because the Cocoa Tigers beat the Rockledge Raiders.  He noted he also attended the Cocoa Beach parade; it  was  an interesting parade; he discovered that as much as candy is needed, dog biscuits are also needed because there are literally hundreds of dogs; and he enjoyed both parades.

 

 

Commissioner Infantini stated she visited Country Acres and is thrilled to see all the good that the County is able to do for people who cannot look out for themselves due to situations that are beyond their control, and children that need to have some guidance.  She stated she also toured the cottage for people who age-out of foster care, because it is something she really believes in, as kids do not stop needing assistance at age 18. 

 

 

 

Commissioner Infantini stated another great event she attended was Habitat for Humanity; a luncheon was held with Youth Build, which helps build the Habitat for Humanity houses to those people who are less fortunate; and it was a wonderful group of people.  She noted how proud she is that people in the community step up and do all of these things for so many people that otherwise would be less fortunate. 

 

 

Commissioner Anderson stated he attended the basic training camp graduation at Fort Jackson, South Carolina; and there were 1,300 young men and women who graduated.

 

 

 

Commissioner Anderson noted he was given the opportunity to speak at the Brevard County Fire Fighter Training Academy graduation; there were 18 young men and women who graduated; and stated he sleeps well knowing he is in good hands with today’s youth in America and Brevard County.

 

 

 

Commissioner Anderson commented on attending the Palm Bay and Melbourne Christmas parades; stated he appreciates his staff and family walking with him in the rain; and they were both great parades.

 

 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to appoint District 1 Commissioner Robin Fisher as the Board Liaison to the Children’s Services Council for 2010.  Motion carried and ordered unanimously.

 

 

 

Commissioner Anderson advised he would like to pull for discussion, Items III.A.10., Task Order 00-52 with S2L, Inc., Re:  Preparation of Responses to Requests for Additional Information (RAI) from DEP for the U.S. 192 Site; III.B.12., Approval, Re:  Application and Authorizing Resolutions for Job Access Reverse Commute Funding for Fiscal Years 2010-2011 and 2011-2012; III.C.5., Approval, Re:  FY10 Brevard County Community Cultural Grants; and III.C.7., Approval, Re:  Bills and Budget Changes.

 

Commissioner Infantini advised she would like to pull for discussion, Items III.A.1., Grant Assistance Agreement with Florida Department of Environmental Protection (FDEP), Re:  Petroleum Contamination Site Cleanup Related Services in Brevard and Indian River Counties; III.A.5., Sunset Review (BCC-31), Re:  Brevard County Board of County Commissioners Policy (BCC-89), Flag Stem and Easement Review; III.A.12., Approval of Reduction in Retainage, Re:  South Beaches 24” Force Main Replacement Contract; and III.B.6., Agreement with Specialized Treatment, Education and Prevention Services, Inc. (S.T.E.P.S.), Re:  Adult Drug Court Program.

 

Chairman Bolin advised she would like to pull for discussion, Item III.C.8., Approval, Re:  Scheduling of Budget Workshops for FY 2010-2011.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to nominate Assistant County Manager Mel Scott as the County’s representative and Assistant County Manager Stockton Whitten as the County’s alternate representative to participate on the Florida Department of Environmental Protection, Basin Working Groups, for the Indian River Lagoon Basin Management Action Plans (BMAPs).  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to execute a Binding Development Plan Agreement with Happy Landings Homes, Inc. for property located on the east side of Old Dixie Highway, approximately 134 feet south of Otter Creek Lane.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to renew Policies BCC-40, Waiver of Application Fees for the  Board of Adjustment Under  Certain Circumstances, and BCC-41, Waiver of Development Review and Permit Fees Under Certain Circumstances.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Policy BCC-45, Initiation and Development of New or Amended Ordinances, changing the originator of the Policy from Permitting and Enforcement to the Planning and Development Department, due to the merger of the Departments in May 2009.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to grant final engineering approval for the Wickham Road Widening Project, 07SD-00324, subject to minor changes, if necessary, subject to the right-of-way being obtained prior to the construction permit being issued, and developer responsible for obtaining all necessary jurisdictional permits.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to execute a Utility Easement for the purpose of constructing and maintaining water lines and sewer facilities with an Easement for Ingress and Egress in favor of the City of Titusville; approved a corrected Bill of Sale for the existing improvements on site; and adopted a Resolution in favor of the City of Titusville.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to accept an easement form the Suntree Master Homeowners Association, Inc. in favor of Brevard County, due to the development of the Manaz Mandir and Fellowship Hall, located in Section 12, Township 26 S, Range 36 E, District 4.  Motion carried and ordered unanimously.

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to execute Certification of the Staff Services Agreement with the Space Coast Transportation Planning Organization extending the Agreement through December 31, 2012.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve the recommended Award of Proposal #P-4-10-07, Space Coast Area Transit Vehicle Fleet Maintenance and Repair Management Services, to First Vehicle Services; and authorize the Chairman to execute a Contract.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to reject all bids received in response to Bid #B-4-10-08, Concrete Sidewalk Construction, Curbs, and Gutters; and authorize re-solicitation and award of bids under a revised set of specifications.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve the Agreement with The Viera Company (TVC) for the donation and capital contribution reimbursement for Fire Station 48; and authorize the Chairman to sign the Agreement upon acceptance by Fire Rescue and the County Attorney’s Office.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt a Resolution to apply for the annual State EMS County Grant; and approve the necessary budget amendments.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to accept the recommendation from the Brevard Healthcare Forum for the appointment of two members to the Local Health Council of East Central Florida, one in the health care purchaser industry group and one in the over 60 years of age consumer group, for a two-year term.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution No. 09-267, and execute Water Line & Ingress/Egress Easement Agreement, and Bill of Sale with the City of Cocoa for water to Fay Lake Wilderness Park, Phase II.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt a Resolution and execute Utility Easement to Florida Power and Light Company (FPL); and adopt a Resolution and execute Water Line & Ingress/Egress Easement Agreement, and Bill of Sale to the City of Cocoa for Sam’s House in the Pine Island Conservation Area, subject to approval and execution by the St. Johns River Water Management District (SJRWMD).  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution No. 09-269 and execute Utility Easement to Florida Power and Light Company (FPL) for the construction, operation, and maintenance of electric utility facilities needed for Fay Lake Wilderness Park, Phase II.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve and authorize  the  Chairman  to  execute  a  Support  Group Memorandum of Understanding with the U.T.B. – United Third Bridge, Inc. (UTB), a 501(c)(3) corporation, and with the Florida Puerto Rican/Hispanic Chamber of Commerce, Inc., a 501(c)(6) corporation, to outline the partnership for the preservation of the Hispanic cultural heritage; and authorize the Chairman to execute Letters of Invitation to the Ponce de Leon Landing Quincentennial Anniversary Celebration.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to sign an Agreement with Brevard Community College for the purpose of reimbursement of fares for eligible College students on all fixed routes for a period of 12 months, retroactive from August 1, 2009 through July 31, 2010.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve and authorize the Chairman to sign the Fiscal Year 2010 Certifications and Assurances for Federal Transit Administration (FTA) Grants. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to accept the negotiated contract with the selected firm of RSM McGladrey and Hoyman Dobson; and authorize the Chairman to execute the negotiated contract.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution No. 09-270, recommending State Economic Development Project, HTF, Inc. be approved as a Qualified Targeted Industry business.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Economic Development Tax Resolution No. 09-271, qualifying HTF, Inc. as an eligible business under the County’s Tax Abatement Program; and authorize a public hearing to consider adopting an exemption ordinance.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to execute Contract with the City of Rockledge regarding building official services.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve moving the January 28, 2010 scheduled workshop date to January 21, 2010, and assign the topic of Strategic Planning.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve the recommended plan design changes and authorize the Insurance Director to execute all documents necessary to secure this insurance coverage and publish an RFP for EAP/Mental Health Care to be effective January 1, 2010.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to authorize the distribution of $175,000 in State Forfeiture funds to the Boys and Girls Club of Central Florida Capital Fund, in accordance with Florida Statutes 932.7055(5); and authorize any necessary budget amendments.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to appoint/reappoint Mark S. Mathusa and Kelli Jo Strabley to the Animal Enforcement Dangerous Dog Hearing Council, with terms expiring December 31, 2010; Darleen Hunt, Josiah Snodgrass-Neal, and Joe Thompson to the Art in Public Places Advisory Committee, with terms expiring December 31, 2010; Grace M. Boyd, Cathy Bucklin, Beverly Jones, Michele Paccione, and Lauren Trent to the Brevard County Commission on the Status of Women, with terms expiring December 31, 2010; R. J. Durham, Franck Kaiser, and Michael H. Williams to the Building and Construction Advisory Committee, with terms expiring December 31, 2010; Glenice Fablinger, Nena Galligan, Pat Shearer, and Loretta Wilson to the Central Brevard Library & Reference Center Advisory Board, with terms expiring December 31, 2010; James Rosasco and Dale Young to the Citizen Budget Review Committee, with terms expiring December 31, 2010; Matthew Nye, James Rosasco, and Dale Young to the Charter Review Commission, with terms expiring December 31, 2010; Izeal Battle, Leartis Brothers, and Betty Wells to the Cocoa West Community Center Advisory Committee, with terms expiring December 31, 2010; Alan Bergman, Pamela Grove, John Kaufmann, and Mark Wheeler to the Community Action Board, with terms expiring December 31, 2010; Luella King to the Community Development Block Grant Advisory Board, with term expiring December 31, 2010; Tony Barrerios to the Community Towing Task Force, with term expiring December 31, 2010; Charles Bourdreaux, Pete Cario, Bud Crisafulli, Tim Davis, Roger Drabyk, R.J. Durham, Luke Miorelli, Ron Nost, and Nick Witek to the Contractor’s Licensing Board, with terms expiring December 31, 2010; Sara Ann Conkling, Marilyn Hooper, Cheryl Lawson-Young, and Carolyn Mobley to the Country Acres Advisory Board, with terms expiring December 31, 2010; Jim Durocher, Murray Hann, Mark Nathan, Beverly Pinyerd, Ayn Samuelson, Douglas Sphar, and Bruce Wechler to the EEL Program Recreation and Education Advisory Committee, with terms expiring December 31, 2010; Tony Masone and Larry Weber to the Economic Development Commission of the Space Coast, with terms expiring December 31, 2010; John Anderson and William Pezzillo to the Emergency Medical Services Review Committee, with terms expiring December 31, 2010; Liz Alward and Matthew Collins to the Employee Benefits Advisory Committee, with terms expiring December 31, 2010; Thomas Leser, Ralph McCoig, Pat Pasley, Rocky Randels, and Amy Tidd to the Environmentally Endangered Lands Procedure Committee, with terms expiring December 31, 2010; Bud Crisafulli, Mark Fowler, and Billy Kempfer to the Extension Advisory Council, with terms expiring December 31, 2010; Larry Garrison and Emil Miller to the Health Facilities Authority, with terms expiring December 31, 2013 for Mr. Garrison, and December 31, 2014 for Mr. Miller; Douglas Hendriksen, Jack Lembeck, David Paterno, Carole Pope, Yvonne Shingler, William Sidoran, Helen Stubbs, and Bob Swenson to the Historical Commission, with terms expiring December 31, 2010; Eugene Terkoski to the Housing Finance Authority, with term expiring December 31, 2010; Brian Laughlin and Jim Milucky to the Investment Committee, with terms expiring December 31, 2010; Carol Hurst, Terri Jones, and Bill Scott to the Library Board, with terms expiring December 31, 2010; John Stone to the Onsite Sewage Disposal Variance Board, with terms expiring December 31, 2010; Jerry Butz, Mike Cunningham, Gary Hanlin, Doug Jaren, John Mongioi, and Joe Penovich to the Marine Advisory Committee, with terms expiring December 31, 2010; John Devivo to the Melbourne Tillman Control District, with term expiring December 31, 2010; John Campbell, Vicky Fischer, John Ells, Ray Hoffman, Isaac Houston, Kathy Jarrell, Hank Salvin, and Albert Thomas to the Merritt Island/Beaches Service Sector Advisory Board, with terms expiring December 31, 2011; Dudley Anderson, Clifford Barber, and Keith Farguharson to the Palm Bay Regional Park Advisory Committee, with terms expiring December 31, 2010; Richard Contrares, Keith Farguharson, Mary Goelz, Jerry Jagrowski, and Ted Whitlock to the Parks and Recreation South Sector Advisory Board, with terms expiring December 31, 2010; Cleave Frink and Joni Oglesby, Ph.D., SPHR to the Personnel Council, with terms expiring December 31, 2010; Peter Aydelotte, Victor Brungart, Wayne Cooper, Sean Freeman, Jerry Jagrowski, Robert Ludwiczak, Ron McLellan, Aneta Ott, Clyde Thodey, Laura Ward, and Linda Wise to the Planning and Zoning Board, with terms expiring December 31, 2010; Gene Cate, Lou Howard, Clarence Mills, and Gary Silcox to the Public Golf Advisory Board, with terms expiring December 31, 2010; Kate Breitfeller, Linda Wiggins Gaffney, and Dr. Rochelle Kenyon to the Suntree/Viera Public Library Advisory Board, with terms expiring December 31, 2010; Mike Cunningham, Tom Gaume, Lisa Hernandeen, Tre? Holten, and Ayn Samuelson to the Transportation Planning Organization Citizens Advisory Committee, with terms expiring December 31, 2010; Kim Tsamoutales to the Tourist Development Council, with term expiring December 31, 2014; Nelle Ayres, Julia Derrick, and Stephany Eley to the West Melbourne Public Library Board, with terms expiring December 31, 2010; Greg Jones, Karen Kilianck, Liz Lee, Ed Newell, and Phyllis Principe to the Wickham Park Advisory Committee, with terms expiring December 31, 2010; and George Bovell, Mary Hillberg, James Rosasco, and Dale Young to the Zoning Board of Adjustment, with terms expiring December 31, 2010.

 

 

 

Commissioner Infantini stated she discovered there is the equivalent of almost four employees providing services to the Florida Department of Environmental Protection; and she is concerned that one person is working full-time providing services to FDEP, with eight others working part-time.  She noted if the work does not come forward, then Natural Resources is going to be over-staffed; and rather than fulfilling the contract for FDEP, she would rather see FDEP fulfill its own contract. 

 

Ernie Brown, Natural Resources Management Director, advised the contract is one of three programs; two of them are agreements with FDEP; and the third one is the Hazardous Waste Small Quantity Generator Program, which is a State-mandated program.  He stated instead of dedicating five employees completely to one of those, they have been divided up to ensure adequate coverage; should the revenues decline, adjustments to staffing levels would have to be made at that time; he is confident that the contract will continue; and the State Legislature has maintained the level of funding, as it is a high-priority water quality protection.  He reiterated, the contract is subject to FDEP funding; but if funding should decrease, staff will be reduced accordingly.

 

Commissioner Fisher inquired if $325,000 is adequate to fund the positions.  Mr. Brown replied 100 percent of the program is funded by FDEP. 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to execute Grant Assistance Agreement between Brevard County and the Florida Department of Environmental Protection (FDEP) to provide petroleum contamination site cleanup related services in Brevard and Indian River Counties; and authorize the County Manager or designee, signature authority on future Agreement amendments associated with this Agreement.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini noted the item refers to flag stem lots; if the Board reduces the requirements of flag lots, there would not be as many people coming before the Board for approval; and a flag stem lot just allows one driveway for three or more parcels.  She stated the driveway access reduces the impact to the road; it would benefit the County to have the flag lots; and she would like to recommend reducing the requirements to less than one acre.

 

Robin Sobrino, Planning and Development Director, advised the reason for the Board approval is based upon a State definition of what constitutes a subdivision; more than two parcels coming from a parent parcel is a subdivision; therefore, that was the reason for having a process that actually went to the Board; and in January, staff is coming back to the Board for Legislative intent and permission to advertise to do a minor subdivision ordinance that would replace the current flag lot and easement ordinance.  She stated Commissioner Infantini’s concerns will be handled at that time.

 

Commissioner Nelson stated there has been a significant issue on Merritt Island with flag stem lots, particularly with drainage issues and public service access; and small subdivision regulations give a comfort level that the Board is not creating substandard subdivisions.

 

Commissioner Fisher inquired why staff is bringing the issue back in January, as opposed to solving the issue today.  Ms. Sobrino replied the Minor Subdivision Ordinance has been a very difficult one to get a handle on; and staff will be ready to come before the Board in January to ask for permission to advertise; but in the meantime, since the Policy needed its Sunset Review, staff wanted to make sure there was a stop-gap measure in the interim.  She stated the proposed ordinance will eliminate the flag lot and easement as it is now known, but will ensure there is proper drainage and access, because there are issues with the maintenance for the driveway; for people who have to share a driveway, there is an expectation at the time of purchase that it is going to be County maintained; service vehicles have trouble accessing some of the driveways and finding some of the lots, which could be a life safety issue; and staff is trying to make the arrangement more effective to make sure the proper services can be provided so people can get the access to their properties that they thought they were able to enjoy.

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to approve Policy BCC-89, Flag Stem and Easement Review, changing the originator of the Policy from Permitting and Enforcement to the Planning and Development Department, due to the merger of the Departments in May 2009.  Motion carried and ordered unanimously. 

 

 

Commissioner Anderson stated there was a Workshop in 2006 in which the Board directed the Solid Waste Management Department to start investigating the U.S. 192 site; a lot has changed since 2006, specifically, things have changed in existing landfills; there may be opportunities to go outside of developing the U.S. 192 site and do something different; and Desiree Ranch, which was acquired through eminent domain, is willing to purchase the property for a lot more than they received.  He stated another concern is that the Board is going forward with environmental permitting; if the Board loses out on a permit, the offer from Desiree Ranch would drop dramatically; and he thinks the Board needs to hold another Workshop to find out if this is the direction it wants to continue to go.  He stated when someone is willing to write a check to the County for several million dollars, the Board should investigate that before it moves forward and spends $60,000 pursuing a permit it may not get.

 

Commissioner Infantini stated the County is receiving approximately $80,000 per year in lease income from Desiree Ranch; but the Board is spending $82,000 per year to monitor the birds and wildlife on the Ranch; and now the Board is being asked to spend another $59,000 per year to monitor and move forward with the permitting.  She stated she agrees the Board should have another Workshop on the issue. 

 

Commissioner Fisher stated the County has acquired the site; it is his understanding there is a long-term need for garbage collection in the County; if Desiree Ranch wants to spend dollars to move the landfill to an alternate site, he is not opposed to looking at that; but he thinks the Board should still move forward with the permitting process; and inquired if moving the site to another county is a good long-term move for taxpayers.  He stated he thinks the Board should move forward with the project; and if the Ranch wants to come up with a solution at their cost that makes more sense, then the Board can look at it at that time.

 

Commissioner Nelson stated Desiree Ranch has been consistent in their decision from the beginning that they did not want to sell, and they want to buy it back if they can; the commitment that was being considered was only a 20-year commitment for trash going to Osceola; and inquired what happens at the end of 20 years.  He stated in the end, technology is going to be the solution; the waste stream is going to change; and there will be better ways to use it, which could result in the necessity for a smaller site.  He stated the Board needs to move forward with the permitting process; he does not see another alternative right now; and he is not willing to stop the process and potentially find the Board in a worse position than it is in currently.

 

Commissioner Anderson stated his only concern is if the Board continues to run into road blocks on the environmental permitting, all of a sudden the offer, if not permitted, drops to below what the County paid originally.  He stated he always thought the site was a poor choice, because someone driving from Osceola County to Brevard County is going to be welcomed by a giant landfill.  He stated he is not going to vote to continue on with the project; and he would like to have another Workshop.

 

Euri Rodriguez, Solid Waste Management Director, stated today’s item is one more step in the Solid Waste permit; staff has also received a verbal quote from FDEP that this is the last round of questions; and once the questions are submitted, FDEP will consider the Solid Waste permit complete. 

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to approve Task Order 00-52 with S2L, Inc., Solid Waste’s continuing engineering consultant, for Preparation of Responses to Requests for Additional Information from FDEP for the solid waste permitting for the U.S. 192 Site.  Motion carried and ordered; Commissioners Anderson and Infantini voted nay. 

 

 

Commissioner Infantini stated she would like the Board to withhold more money than has been currently allocated; there is the potential for a problem with Watersmark, as far as having enough retainage for them to complete their project; and she would like to request the Board retain a little more money than is currently set aside to retain, just as a precautionary measure.

 

Richard Martens, Utility Services Director, advised the item is for 60 percent retainage; instead of 60 percent, it can be 50/50; and that would bump the number by $10,000 or $20,000, while still accomplishing the same intent to provide some relief for the contractor. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve a reduction in retainage with regard to the South Beaches 24” Force Main Replacement Contract to allow the contractor, Stately Contractors, Inc., to receive partial payment at 50 percent of the retainage for work successfully accomplished.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini inquired if staff could explain what S.T.E.P.S. will be providing for $261,701.00. 

 

Kathleen Turner, Executive Director, S.T.E.P.S., advised the grant was written by her agency to provide services to expand the Adult Drug Court Program; the grant will provide services for 55 Brevard County residents; S.T.E.P.S. proposed in the grant that it will open an office in Titusville; there is currently an office in Cocoa; and there is an office in Melbourne that is anticipated to be expanded.  She stated S.T.E.P.S. is proposing to providing transportation to individuals and also to provide recovery supportive services.

 

Gay Williams, Housing and Human Services Director, stated the priority of the grant has been given to veterans with substance abuse disorders, as well as mental disorders. 

 

Commissioner Infantini inquired if this is the same grant Housing and Human Services received last year for $198,000.  Ms. Turner stated the grant is an expansion; and last year’s grant was for adults, but it did not specialize in adults with co-occurring disorders and veterans.  Commissioner Infantini inquired if S.T.E.P.S. is going to continue to treat the 60 individuals under the $198,000 grant; with Ms. Turner responding affirmatively.  Commissioner Infantini stated when she looked at the grant for 60, it was $198,000; this is 55 people for $261,000, which is almost a 30 percent increase over what was being received; and stated she sees two buses are being purchased, but she is not sure if that much money needs to be expended in two different vehicles to transfer 55 people.  Ms. Turner advised it is a federal award; the money has already been awarded to Brevard County government; and if it is not expended in Brevard County, it will go back to the federal government.  She stated she does not yet know if all of the money will be expended, but it is anticipated that it will; S.T.E.P.S. anticipates that transporting people from Palm Bay to Mims is going to be expensive; but that will have to be figured out as the program goes along.

 

Ms. Williams stated the grant cannot be cut, as it was awarded by the federal government to the County; if the dollars are not expended in a timely fashion, those dollars will go back to the federal government; the Department has been able to spend the dollars that have been awarded and put those dollars into programs to better the lives of Brevard County residents.  Commissioner Infantini stated she is not a fan of the fact that if the money is not spent quickly, then it would have to be refunded; she is not opposed to refunding money to the federal government; just because she does not see the dollars coming out of her pocket, they are coming out of her pocket along with every other taxpayer in Brevard County; and she would rather see the Board either cut some of the costs or return some of the money. 

 

Ms. Turner noted it has been her experience that if the organization is slow on spending money, it can normally identify an issue with the clients that S.T.E.P.S. can alternatively spend that money on, such as medication management; and most of the people S.T.E.P.S. serves are veterans who need medication. 

 

Commissioner Nelson stated he does not think the Board is in a position to say how many buses S.T.E.P.S. needs for clients; he would like to see the funds utilized to support veterans that have issues; and he would not want to send the money back to the federal government. 

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to approve and authorize the Chairman to execute the Agreement for Brevard County Drug Court Expansion and Enhancement of Substance Abuse Treatment Program for Fiscal Year 09-10 in an amount not to exceed $261,701 for the Brevard Adult Drug Court Pretrial Intervention Program; and authorize the Chairman to execute the future renewals of these Agreements.  Motion carried and ordered unanimously. 

 

 

Commissioner Anderson stated he is not necessarily opposed to the request; the Board is going to receive the funds, but they may be taken away later, which may be seen as the Board cutting services; it is a very short-term financial gain; and he would like to be on record as saying if the money goes away, it is not the fault of the Commission. 

 

Jim Liesenfelt, Transit Services Director, advised the funding is not being taken away; the funding over the next two years would be less than what is being received for one year currently; and so the funds received would be reduced in 2012, which would require services to be cut at that point.  He stated Commissioner Anderson is correct in that it would not be the fault of the Commission, but because of less federal funding.

 

Commissioner Infantini inquired if the money could be used to fund the bus stops she would like to have Malabar added.  Mr. Liesenfelt replied the money is for job access and reverse commute; the idea is to get low-income wage earners to jobs; and one of the eligible services is for evenings and weekends; but if there was bus service in Malabar, then it could be funded for evenings and weekends for Malabar.  He noted it does not help to get any extra funds; but it helps keep the current service on the road for the weekends. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve and authorize the Chairman to execute Grant Application and Authorizing Resolution for submittal of a Job Access Reverse Commute Grant with the Florida Department of Transportation for evening and weekend bus service in Brevard County.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Anderson stated every organization listed on the Applicant Listing is a fine organization; he voted against this item last year; stated people who want to support the arts can do so privately; and he is not going to support using taxpayer money to go forward with the grants.

 

Commissioner Infantini stated while theoretically she agrees with Commissioner Anderson, she thinks it is part of the County’s economic development; the Cultural Grants is a good alternative; and she will support it.

 

Chairman Bolin stated she would like to note that the Brevard Cultural Alliance took an 18 percent decrease in the budget.

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to approve the recommendations from the Brevard County Community Cultural Grant Review Panel to fund 29 nonprofit cultural organizations or programs with the County.  Motion carried and ordered; Commissioner Anderson voted nay. 

 

 

Commissioner Anderson stated his concern is on page 30, which is the EEL hiring of interns; and he sees it as the Board dipping into reserves, as it was unbudgeted, but now the Board is going to go into operational reserves to pay for it.  He noted there are a lot of universities that have students in Environmental Management who would be more than willing to do these things for no cost to the County just to get the experience on their resume; and inquired why the Board is using a paid intern program instead of another program. 

 

Commissioner Infantini stated in her office there are three positions; one of the positions she has held open to staff with interns with different universities so that she can have paid interns building their resume while helping her get her job done; and she would rather see it done that way.

 

Don Lusk, Parks and Recreation Director, stated EEL has traditionally used paid interns; there are three positions in each area of the County; traditionally, the interns have done work that has not been easy to get volunteers to do; the work is scientific in nature; it is not impossible to find people to do the work; but it is easier to manage them when they are being paid; and he is not opposed to trying to find volunteers, because if it does not work out, the paid interns can be brought back.  He stated he is not sure why the money for the interns was in reserves; sometimes those things are missed when putting together a big budget; it needs to be moved from reserves to contracted services, because they are no longer hired as employees, but a staffing agency is used because it is much cheaper and the interns stay for a longer period of time; and with the hiring freeze, staff felt having paid interns was a good way to get some projects done that employees would not be hired for.

 

Commissioner Anderson inquired if the interns are traditionally undergrad students; with Mr. Lusk responding both graduate students and undergraduate students are used.  Commissioner Anderson stated he knows when he attended Rollins College, people jumped through hoops to get any kind of experience; he would prefer to at least try to see if there are some free interns available that have a scientific background; and if that does not work, then staff can come back to the Board.  Mr. Lusk stated he would be agreeable to that. 

 

Commissioner Infantini stated she was recommending converting an existing position, as she did, from being a full-time employee to having different interns all year long; and that was her recommendation.

 

Commissioner Fisher inquired where the funding is coming from for the paid interns; and inquired if it is reserve dollars.  Mr. Lusk replied the funding is in the reserve account; and if staff had done all the pieces of the budget as it should have done properly, it would not have been in the reserve account.  Commissioner Fisher stated most interns are college students; and inquired if someone could be given the opportunity who does not have a job.

 

Commissioner Nelson inquired if the intern funding was budgeted last year as a line item; with Mr. Lusk responding affirmatively.  Commissioner Nelson noted if it would be the continuance of a program that has been in place.

 

Commissioner Infantini inquired if the Board is not operating in the negative this year; the Board is not bringing in the tax dollars, so it is already operating in a deficit situation; and now the reserves would be tapped into further.  She stated the Board should begin looking towards some fiscal responsibility and saving reserves for things that are absolutely necessary, rather than creating more internships. 

 

Chairman Bolin inquired when Mr. Lusk would begin hiring the interns, if the program is approved.  Mr. Lusk replied if approved it usually takes 30 days to get paperwork in place; and by January or February interns should be in place.  Chairman Bolin stated there was a suggestion that the Board look for people who want to do the work as a volunteer to build up their resume; and inquired what would that time element be.  Mike Knight, EEL Program Manager replied the process would be the same because the interns have always been treated as a non-competitive appointment because they are temporary employees.  Chairman Bolin inquired if no volunteers could be found, what would happen with the work that needs to be done.  Mr. Knight advised it is not going to matter that much; there are some interns that are on staff now, because they were budgeted in this year’s budget; and it was budgeted under reserves, but it is in the budget.

 

Commissioner Anderson stated he would like staff to make a good faith effort to see if non-paid interns could be acquired; and staff can come back to the Board if it does not find any volunteers. 

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to approve the Bills and Budget Changes, minus Item 30 in the Billfolder.  Motion carried and ordered unanimously.

 

 

Chairman Bolin stated the first scheduled budget workshop is January 14, 2010; stated that date may be too soon after the holidays to be a helpful workshop; and inquired if County Manager Howard Tipton has any suggestions.

 

County Manager Howard Tipton stated originally, a budget workshop was to be held on January 28, 2010 for strategic planning for the Board as it prepares to work on the budget; and stated it is important to have that strategic direction in place.  He advised there was a conflict with having the workshop on January 28^th; the strategic planning workshop was then scheduled for January 21^st ; and he would like to ask that the Board approve that workshop.  He stated he will give the Board an update on the budget at the January 12, 2010 Regular meeting, which will be a fiscal update.  He stated he agrees with Commissioner Infantini that the budget is going to be challenging this year; there is a lot of information to absorb; and he agrees that the other meeting dates are going to be necessary because there is a lot of information for everyone to go through.  He stated he would like permission from the Board to hold the strategic planning workshop on January 21, 2010; and perhaps from that point the Board can set the rest of the calendar based on the strategic direction.

 

Commissioner Infantini stated she would not want to start the budget workshops any later than March; perhaps each department can present its budget to the Board throughout the year, rather than waiting until the last minutes; and she supports the strategic planning workshop on January 21, 2010.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve January 21, 2010 as a strategic planning workshop; and approve March 18, May 13, and July 15, 2010 as budget workshops.  Motion failed.

 

 

Commissioner Nelson stated it would be his preference to let the County Manager determine the scheduling based on his understanding of the process the Board will be going into; stated the Board sets aside all Thursday’s for Workshops; he suspects there will need to be more Budget Workshops; and he does not know the value of the motion, when theoretically, the Board is going to set aside all of its Workshops to have a budget discussion, and let the County Manager guide the Board through it. 

 

Mr. Tipton stated at a minimum, the dates that Commissioner Infantini has set aside will be for budget discussion; he agrees there will be additional dates; there are going to be a lot of issues to cover; and at a minimum, those dates would be utilized.  He stated direction will come from the Strategic Planning Workshop, in terms of how the departments’ time is allocated; not all areas will receive equal time, as there are different issues in different areas; and there are greater challenges in certain areas. 

 

Commissioner Fisher stated he has a conflict with the July 15, 2010 date; the Board is in agreement that it is going to have many challenges this year and will have to meet more often than normal; and the Board can go ahead and schedule four Workshops.

 

Commissioner Infantini stated she would rather start scheduling Budget Workshops now, as it makes the Board accountable to the taxpayers early; and the taxpayers can start providing input.

 

Commissioner Nelson stated no one said the Board is holding off on having Budget Workshops; the reality is that it is going to evolve as a process; the County Manager is going to guide that process; and the Board responds to it and sets policies.  He stated the Board is not saying it wants to wait until July. 

 

Commissioner Fisher stated the Board has already made a decision on its budget for January, February, March, April, May, June and July of next year, because it has already been decided; the Board approved the budget in October that goes to October 2010; the question is what is the Board going to do from October 1, 2010 to October 2011; and the Board has some time to think about that.  He stated if the Board will remember, it did not get final audit numbers until May or July; hopefully, the Board will have some numbers earlier this year; and he knows Mr. Tipton and the Clerks Office is working toward that. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve setting the schedule for budget workshops after the January 21, 2010 Strategic Planning Workshop.  Motion carried and ordered unanimously.

 

 

 

Jerry Brinegar commented about the Bible story of Paul.  He stated most of the Board is blind as to what is going on in Code Enforcement; the Board needs to realize what the problems are in Code Enforcement; and stated Brevard County is the epicenter of Code Enforcement.  He stated he hopes the Board begins to see some of the problems and destruction going on in peoples lives because of Code Enforcement; he knows hundreds of people whose lives have been destroyed by Code Enforcement; and he hopes the Board will understand what Code Enforcement is doing is wrong.

 

 

*The Board recessed at 10:36 a.m. and reconvened at s10:48 a.m.

 

 

Chairman Bolin called for the public hearing to consider a petition to vacate a Public Utility and Drainage Right-of-Way in Briarwood Manor Subdivision, as petitioned by James Swonger and Valerie Page.

 

John Denninghoff, Public Works Director, advised the requested action is to continue the item to the January 12, 2010 meeting; the petitioner has some paperwork to get resolved before staff can move forward with the petition; and that is the only outstanding issue.

 

There being no further comments or objections, motion was made by Commissioner Nelson, seconded by Commissioner Anderson, to continue the public hearing to consider vacating portions of the public utility easement and public drainage right-of-way in Briarwood Manor Subdivision, as petitioned by James Swonger and Valarie Page, to the January 12, 2010.  Motion carried and ordered unanimously.

 

 

 

Chairman Bolin called for the public hearing to consider revisions to the Merit System Policies.

 

There being no objections heard, motion was made by Commissioner Anderson, seconded by Commissioner Nelson, to approve amendments to Merit System Definitions and References; Merit System Policy II, Pay Plan; Merit System Policy III, Recruitment, Applications, Examinations and Certifications; Merit System Policy IV, Appointments; Merit System Policy V, Probationary Periods; Merit System Policy IX, Leave; and Merit System Policy X, Promotions, Transfers and Demotions.  Motion carried and ordered unanimously.

 

 

Chairman Bolin called for the public hearing to consider an ordinance amending the PUD Zoning Classification to provide for Alternative Development Standards. 

 

There being no objections heard, motion was made by Commissioner Nelson, seconded by Commissioner Anderson, to adopt Ordinance No. 09-35, amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Section 62-1442, to provide for the inclusion of Alternative Development Standards in the PUD Zoning Classification; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances.  Motion carried and ordered unanimously. 

 

 

Chairman Bolin called for the public hearing to consider an ordinance adopting the Comprehensive Plan Package 2009-2 Plan Amendments. 

 

Glen Storch, Miami Corporation, stated the Miami Corporation was honored by the faith shown by the Board when it transmitted the Farmton Comprehensive Plan Amendments a few months ago; there were many other things that needed to be accomplished; and he is happy to report to the Board that everything has now been completed.  He stated the City of Titusville has entered into and approved the agreements; and Miami Corporation is now in a joint venture with Titusville for water supply.  He noted additionally, Volusia County has unanimously approved the transmittal; and the Volusia County Council has nearly unanimously approved it with good reason.  He stated the reason the project has been approved is because the concept was good; Miami Corporation clustered the existing 2,306 residential units and capped those number of homes, or their equivalents, on a small area of property; economic development was added by providing commercial and industrial uses to the areas, while also preventing sprawl; 80 percent of the property has been preserved; and they were very good concepts, which is why everyone has been supportive.  He stated unfortunately, the agencies had some confusion as to what the Miami Corporation was proposing; DCA (Department of Community Affairs) believed Miami Corporation was doubling the density on the site, and that it was not preserving any open space; but those issues have been resolved.

 

Clay Henderson, Holland and Knight Enterprises, stated Commissioner Nelson asked him to address the environmental issues that DCA had raised; since then, he has had the opportunity to go out on the site with most of the resource staff from the State; and last week, the Acquisition and Restoration Council, which is part of the Florida Forever Program, approved the lines that had been agreed to.  He stated what has been proposed is approximately 80 percent set aside for the property; it will come in as conservation easement on or after the effective date of this Comprehensive Plan Agreement;  and  there is a  general consensus that the best of  the  best  has  been  set aside for conservation.  He stated the lines that have been proposed are science-based, they follow the landscape, and they preserve the best of the best.

 

Mr. Storch stated the other issues that Miami Corporation has provided information for include water supply; Farmton Water Resources, which is a PSC certified water supplier for the area will be the supplier; however, the City of Titusville has worked out a joint venture with Farmton; analysis shows tremendous amounts of additional ground water that was not previously known about; and Miami Corporation is dealing with St. Johns River Water Management District to work on those issues and to make sure the water supply is provided for. 

 

Sam Lassiter, Lassiter Transportation Group, stated he has answered all of FDOT’s objections on transportation; FDOT has no objections; Miami Corporation is committing to future DRI level of analysis; and also committing to providing the right-of-way for the spine road up front, in order for the right-of-way to be available forever.  He stated the right-of-ways are going to be wide enough to handle transit, as well as bike paths, and to allow personal electric vehicles in the future.

 

Joel Ivey, Ivey Planning Group, stated DCA addressed meaningful and predictable standards and believed there were not enough; the were over 23 such standards; but agency positions were accepted and several of those standards were added.  He stated Miami Corporation has followed the recommendation of the DCA; one of the biggest items was a 50-year planning horizon; the DCA felt that was too long, and that Brevard County had already adopted planning horizons; and DCA believe another one cannot be adopted.  He noted the Florida Administrative Code rule states that each local government shall have a minimum of two, not a maximum of two.  He stated need has become the big issue; right now, Brevard County has an adopted 20/25 planning horizon; by the need guidelines that exist, it is less attractive for a local government to adopt a plan amendment where there is not a balance of demand in the marketplace as perceived by the State; in the case of Farmton, Miami Corporation is proposing no increase in residential density; and so the population is not being increased in the planning horizon, therefore, need can be demonstrated because population is not increasing.  He stated there are adopted sprawl guidelines in Florida Administrative Code Rule; and Miami Corporation is well aware of those, and has followed those.  He stated Ivey Planning Group has provided a better plan; the hardest thing for agencies, especially at the State level, to remember is that it is always a comparison of two things, not just an analysis of one; and in this case, the County’s adopted Land Use Plan has one unit per five acres, it is all single-family, all ranchette, all septic tank, and all individual wells.  He stated he is proposing a plan that advances employment, central utilities, and housing is tied to jobs, specifically; in the wildlife corridor being provided, the important thing to remember is that right now there is no wildlife corridor; there is land for wildlife, there is land that can be connected that can be called a corridor, but in terms of officially designating one, there is no corridor; and Brevard County and Volusia County is being offered an opportunity to formally designate and protect a very large, very significant, wildlife corridor.

 

Mr. Storch stated it has been shown that Farmton has been planned very well; the Planning and Zoning Board  has recommended approval;  it is the best possible planning that can be done with all the experts that have been able to be brought in; but Miami Corporation will be responsible, if DCA is not satisfied, for paying to make sure everything is taken care of and to resolve any issues.

 

Doug Sphar, Sierra Club Turtle Coast Group, stated the Sierra Club is dismayed that a project of such profound importance was being rushed to meet arbitrary deadlines; the transmittal hearing was a rushed affair with less than 24 hours between the LPA and the Commission hearing; the Board was told at the transmittal hearing that the Farmton Amendment could not be delayed and that it needed to be transmitted during the same amendment cycle as the EAR amendment; and at that hearing, citizens complained that Farmton had conducted no public information forums in Brevard County.  He stated the Board explained there would be time for public information forums before adoption to hammer out the issues; at the transmittal hearing, the Board and the public were promised a workshop to be held after the ORC Report was received from the Department of Community Affairs; and stated according to the official minutes, the workshop was part of the approved motion.  He inquired what happened to the workshop; and inquired if it means that motions by the Board are merely advisory, with no commitment to action.  He noted the time has never arrived to hammer out the issues; the amendment language is now being considered as what Sierra Club sees as the same basic flaws it had at transmittal; in the ORC Report, the DCA says, “The size of a development area and the configuration reflect a pattern that threatens natural resources and represents sprawl and efficiency”; and the ORC Report has 11 objections with the Farmton amendment, along with 11 recommendations to not adopt the proposed amendment.  He stated those are very serious findings; the DCA rule allows 60 days to respond; the County has elected not to use this time to prepare a comprehensive staff analysis addressing each of these objections; the DCA is expecting such an analysis; and basically, the County has relied on Farmton to address these objections.  He stated as the Board moves to adopt the Farmton amendment in its current form it is almost assured the DCA will find the amendments not in compliance; and if the DCA prevails, the Florida Administration Commission can administer sanctions that include withholding monies for infrastructures and grants for all of Brevard County.  He stated the amendment in its current form is of great concern for the Sierra Club; the problems with site suitability, sprawl, sign configuration; and impacts on natural resources have not been corrected since transmittal; and the Sierra Club feels the amendment should be of great concern for the Board.

 

Commissioner Fisher stated DCA has some concerns; his understanding was that their concerns were partly because of a misunderstanding they had on the project; and inquired if that was true.  Stuart Buchanan, Planning and Development, stated what the DCA staff did was miscalculate both the density and the commercial square footage in its very first objection; the project itself does not increase density at all beyond existing; the density that is being added is converted to commercial square footage; that confused DCA; staff added three bullets under one of the policies, 17.1F, to make that crystal clear for the State staff; and the unfortunate thing is that because DCA got the first one wrong, the following subsequent objections were based upon the miscalculated figures from the first one. 

 

Commissioner Fisher inquired if Mr. Buchanan had a chance to speak to DCA since that happened; with Mr. Buchanan responding yes, several times. Commissioner Fisher inquired what is DCA’s position today.  Mr. Buchanan advised DCA is waiting for the County; if the Board adopts it, DCA will decide whether or not it is okay with the changes that were made; and if it is not, then it would go to an administrative hearing, and it would be Farmton’s responsibility to amend its amendment package. 

 

Commissioner Nelson stated it is his understanding that although it is not a Development of Regional Impact (DRI), there are standards that equate to that same process as a DRI for future review; after today’s approval, once they start the actual development process there is another opportunity to discuss the issues and to further clarify and give better information.  Mr. Buchanan stated under Policy 17.9, all of that Objective 17 is actual policies that are being put in the Comprehensive Plan; and just like Viera has its section, this will be Farmton’s section.  He advised and there is a whole implementation set of policies; it is going to come back to the Board to create a Farmton/Mixed Use Zoning District, a Farmton Overlay District; and it is the same sort of thing the Board is going through with Viera, except there is more time to do it.

 

Commissioner Anderson inquired if there is State level support of environmental organizations regarding the wildlife corridor.  Mr. Henderson advised when he referred to the lines that he drew, it was done on the recommendation of Dr. Richard Hilzenbeck, who is with The Nature Conservancy and is the Chief Resource Officer and is satisfied with where the Farmton project is.  He noted the Audubon Society of Florida is also in support of the application.  He stated lastly, the Fish and Wildlife Conservation Commission in its comments to Brevard County called the Farmton project the model for sustainability.

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Nelson, to adopt Ordinance No. 09-36, amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The Comprehensive Plan”, setting forth Plan Amendment 2009-2.1; amending Section 62-501, entitled “Contents of the Plan”; specifically amending Section 62-501, specifically amending Section 62-501, to adopt Evaluation and Appraisal Report Recommendations Part I, entitled Conservation Element, Part II, entitled Surface Water Management Element, Part III, entitled Recreation and Open Space Element, Part IV, entitled Historic Preservation Element, Part V, entitled Housing Element, Part VI, entitled Potable Water Element, Part VII, entitled Sanitary Sewer Element, Part VIII, entitled Solid Waste Element, Part IX, entitled Transportation Element, Part X, entitled Coastal Management Element, Part XI, entitled Future Land Use Element, Part XII, entitled Intergovernmental Coordination Element, Part XIII, entitled Capital Improvements Element, Part XIV, entitled Public School Facilities Element, and Part XV, entitled The Glossary, re-adopting the Future Land Use Map to address land use changes and correct scrivener’s errors; providing for internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.  Motion carried and ordered unanimously. 

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Ordinance No. 09-37 amending Article III, Chapter 62, of the Code of Ordinances of Brevard County; entitled “The Comprehensive Plan”, setting forth Plan Amendment 2009-2.2; amending Section 62-501, entitled “Contents of the Plan”; specifically  amending  Section  62-501,  specifically amending Section 62-501, Part XI, entitled Future Land Use Element, and amending the Future Land Use Map to address land use; providing for internal consistency with these amendments; providing legal status; providing a severability clause; and providing and effective date.  Motion carried and ordered unanimously. 

 

 

Chairman Bolin called for the public hearing to consider an ordinance amending Section 106-73, Ron Beatty Boulevard for Golf Cart Use.

 

There being no objections heard, motion was made by Commissioner Infantini, seconded by Commissioner Anderson, to adopt Ordinance No. 09-38, amending Article III, Chapter 106, Section 106-73 of the Code of Ordinances of Brevard County, Florida; authorizing Ron Beatty Boulevard as a designated street/road for the operation of golf carts; providing for severability; providing for inclusion in the Code of Ordinances Brevard County; providing for conflicting provisions; and providing an effective date.  Motion carried and ordered unanimously. 

 

 

Chairman Bolin called for the public hearing to consider an ordinance adopting 2007-C Comprehensive Plan Amendments for Viera DRI.

 

There being no objections heard, motion was made by Commissioner Anderson, seconded by Commissioner Fisher, to adopt Ordinance No. 09-39, amending Article III, Chapter 62, of the Code of Ordinances of Brevard County; entitled “The Comprehensive Plan”, setting forth Plan Amendment 2007-C; amending Section 62-501, entitled “Contents of the Plan”; specifically amending Section 62-501 “Part I. Conservation” to include standards for permitting De Minimis Impacts to wetlands and to allow environmental data collected as part of the Development of Regional Impact process to satisfy crucial habitat review criteria at the pre-application stage; specifically amending Section 62-501 “Part IX. Transportation” to update the Traffic Circulation Map to include developer-funded transportation improvements that are necessary to support expansion of the Viera Development of Regional Impact; specifically amending Section 62-501 “Part XI. Future Land Use” to revise policy language addressing development within the Viera Development of Regional Impact and to add standards regarding development within a new town overlay; specifically amending Section 62-501 “Part XIII. Capital Improvements” to add developer-funded improvements to the schedule of improvements that are necessary to support expansion of the Viera Development of Regional Impact; specifically amending Section 62-501 “Part XVIII. G. Future Land Use Appendices” to change the Future Land Use Map designation on the property known as the West Viera Expansion Area from Agriculture, Residential 2 and Residential 4 to DRI – Development of  Regional  Impact;  and  provisions  which  require  amendment   to  maintain   internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.  Motion carried and ordered unanimously. 

 

 

Chairman Bolin called for the public hearing to consider Substantial Deviation #2, and adopting of amended and restated Development Order for Viera DRI.

 

Commissioner Infantini stated she would like to know if it is possible to change the concurrency test for schools; and rather than making it all schools, it would only be those schools directly affected.  She stated she had spoken with The Viera Company about the schools, because the school re-districting is a really hot item right now; stated she is trying not to make mistakes of previous Boards, or the lack of communication between the School Board and the Commissioners; and stated a suggestion from a School Board member was that the only change to make for the concurrency test was to make sure that it was only based on schools directly affected. 

 

Duke Woodson, representing The Viera Company, stated the development order is being discussed, specifically, Condition 78, 79, 80, and 81, which are all conditions that can be negotiated with the School Board.  He stated The Viera Company will be complying with the County’s concurrency requirements, whatever they may be in the future; those requirements require The Viera Company to address not only the schools on its property, but the schools just offsite that would be on property that is contiguous to The Viera Company’s land; and stated it is his understanding that Commissioner Infantini is suggesting a narrowing of the analysis to address only the schools on its property.

 

Commissioner Infantini stated based on the way it was communicated to her yesterday, once a school in The Viera Company’s District is full, and then when the outside schools are filled up, that is when the concurrency requirements would kick in; and it was recommended that rather than waiting until students were passed onto the outlying schools, that we would only address, once the closest current school, would be filled up, that’s when we would address the concurrency requirements. 

 

Mr. Woodson advised it is an issue the Board does not have to address today; under the Development Order, The Viera Company is proposing an existing mitigation agreement with the School Board as to the existing DRI; the Development Order requires The Viera Company to amend that mitigation agreement with the School Board within six months; as to the additional units that are a part of Substantial Deviation No. 2, that would be the subject of an entirely  new  mitigation  agreement;  it would involve  both Brevard County and the School Board; and that must be entered into within 12 months after adoption of the Development Order.  He advised with respect to those units being improved or authorized under Substantial Deviation No. 2, The Viera Company has agreed that those units will be subject to school concurrency as is currently embodied in the County’s Comprehensive  Plan,  and  also   as  it  is  described  in  the  Interlocal  Agreement  that Brevard County has just entered into with the School Board; and stated he does not quite understand what it being asked, but he thinks it can be covered in either the amended mitigation agreement that must be entered into in six months, or in the proposed new agreement for Substantial Deviation No. 2, a specific concurrency agreement that must involve both Brevard County and the School Board, and be signed within 12 months of the County adopting the Development Order. 

 

There being no further comments or objections, motion was made by Commissioner Infantini, seconded by Commissioner Fisher, to adopt Resolution amending Resolution No. 08-118, of Amended and Restated Development Order for Viera Development of Regional Impact (DRI); and approve Substantial Deviation to the Viera DRI.  Motion carried and ordered unanimously. 

 

 

Chairman Bolin called for the public hearing to consider a request for rezoning for The Viera Company and A. Duda & Sons, Inc.

 

There being no objection heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to approve The Viera Company and A. Duda & Sons, Inc.’s request for a change from PUD/DRI, AGR, AU and GU to PUD/DRI on 13,182.87 acres +/- located south of the Fiske Boulevard and I-95 interchange, beginning approximately one mile west of Fiske Boulevard, running south and west for approximately four miles, then extending more eastward, south of Wickham Road, to the west boundary of I-95, and running south for approximately four miles, relating to the West Viera Expansion.  Motion carried and ordered unanimously.

 

 

Chairman Bolin called for the public hearing to consider a request for rezoning for The Viera Company.

 

There being no objection heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to approve The Viera Company’s request for a change from PUD/DRI and AU to PUD/DRI, with Transfer of Development Rights on 1,277.46 acres +/- located west of I-95, south of the Fiske Boulevard Interchange, relating to the Central Viera PUD.  Motion carried and ordered unanimously.

 

 

Chairman Bolin called for the public hearing to consider a rezoning for The Viera Company and Lennar Homes.

 

There being no objection heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to approve The Viera Company and Lennar Homes’ request for a change from PUD to PUD with an Amendment to the Preliminary Plan, and a Transfer of Development Rights to the West Viera PUD, on 113.93 acres +/- located west of I-95, north of Wickham Road, south of Judge Fran Jamieson Way, and within the Viera PUD, relating to Heritage Isle.  Motion carried and ordered unanimously.

 

 

Assistant County Manager Mel Scott noted Items V.F through V.J. required a large amount of work and presented a challenge to staff; and he would like to thank staff for all of their hard work and working after hours.  Chairman Bolin stated she concurs with Mr. Scott.  Tracy Duda Chapman, The Viera Company, expressed appreciation to Brevard County staff; it has been a long process; and The Viera Company appreciates the time and effort spent by County staff.

 

 

Commissioner Fisher stated he was under the impression that the Board was being donated the right-of-way and the 10 acres; but he sees now that that is not exactly true; and the 10 acres is going to be in the form of an easement.  He stated he feels it might be in the Board’s best interest to just buy the 10 acres, especially since the Board is going to buy dirt for land that is an easement; and inquired, if it is truly an easement, what is the Board paying for the dirt.

 

John Denninghoff, Public Works Director, advised in the case of the retention ponds, which total 10.5 acres, there will be an easement over those 10.5 acres for the purposes of construction of a retention pond, or ponds; those ponds would be required in order to construct the road; the agreement contemplates that the County would compensate the Platts for the amount of material that is removed from those 10.5 acres on a per-cubic yard basis, regardless of whether it is used for fill, for the roadway, or for something else; and the Board would have to pay for that based on the market value at the time.  He stated the County would not own the underlying land at that point, although it would have rights to utilize it as a retention pond; the Platts would have the rights to expand the pond as long as it was compatible with the County’s uses; the Platts could also relocate the pond and build a new one at a new location if that was in keeping with their goals and objections; but the Platts would have to make the County whole at their cost if they were to do that; and that is the description of what the agreement currently contemplates.

 

Commissioner Fisher inquired about cost, and what is cheaper for the taxpayers.  Mr. Denninghoff stated that is difficult to answer; the value of fill material has been the subject of some debate; but he does not believe he is in agreement.  He stated typical values per acre are approximately $15,000 to  $30,000 per  acre  for the fee  to the land; that does not account for any damages or cured costs associated with an imminent domain condition; and there are a number of transactions that would support that range of values.  He stated the amount of material that could come out of the 10.5 acres is estimated to be 140,000 to 145,000 cubic yards; current values range as low as $1.35 per cubic yard; that includes the cost of digging the material; and staff also received quotes that were $1.00 more.  He stated the cost would be approximately $23,000 per acre for the 10.5 acres, which would be in the range of values for the fee. 

 

Commissioner Fisher inquired what $1.35 per cubic yard includes.  Mr. Denninghoff replied it includes the cost to dig the dirt and the cost of the land; the cost in the contract is going to be based on market value; the contract does not describe how that market value would be determined; and he anticipates that will be the subject of some discussions; but he thinks there can be a reasonable determination. 

 

Commissioner Fisher inquired how the market value would be determined.  Mr. Denninghoff stated he would assume it will be done based on an apples-to-apples comparison, so it would be a furnished-on-board price; and it could also be an in-the-ground price, which would be a lower cost.  He stated the difference in this situation is that the County is going to be digging the ponds to remove material to dig the ponds; staff can remove more material than is necessary for the ponds, because the fill will be needed for the roadway; regardless of whether it is being dug for the retention ponds or the roadway fill, the County would still pay the same price for it, market value; but staff will already be mobilized digging for the retention pond. 

 

Commissioner Fisher stated he is concerned; and inquired if it would be cheaper for the County to buy the land, versus dealing with the dirt issue.  Mr. Denninghoff stated the County will own some rights to the land, but it would not own the fee of the land; and the title will not be in Brevard County.

 

Commissioner Anderson stated the County is only going to be responsible for the dirt taken out of the drainage areas; if additional fill is needed, the County is under no obligation to buy from the Platts; and stated no one will ever know the value of dirt, as it could change at any time.  Mr. Denninghoff stated right now it would probably be cheaper to only buy the dirt and not the fee; it could turn out that it is cheaper to buy the fee than it is to buy the dirt and then just dig the dirt out of the land the County owns; and it just depends on the market, both for the land and the fill dirt.  Commissioner Anderson stated everything in the contract is substantially cheaper than going to a taking, which could cost approximately $12 million.

 

Commissioner Nelson stated as it relates to the cost to cure, the contract states, “Further, such payment may be adjusted upward or downward in accordance with changes in wholesale price index based on the date of last payment”; and inquired what the process includes.  County Attorney Scott Knox replied, what the paragraph is basically saying is there is an estimate of cost for $2 million; the Platts are agreeing to accept compensation of $1.8 million; the payment the County is making is going to be adjusted up or down depending on when the payment is made; the payments are made according to a schedule at closing; and at that point, the Board pays $900,000, which gets adjusted up or down by the wholesale  index.   He  advised the second  payment  is deferred  until later in the process, which also gets adjusted up or down.  Commissioner Nelson stated basically, it could be less than $1.8 million, but it could also be more. 

 

Commissioner Nelson stated there were some changes made on Addendum D, which says, “Until construction of a full intersection takes place, the median openings and other intersection improvements will be designed and constructed to minimize future construction”; and inquired what that means.  Mr. Denninghoff advised the intent is that in a relatively short period of time, the County is going to be asking the Platts to identify the locations; the general locations are identified in the agreement on one of the exhibits; but the Platts will need to specify the exact locations; and the County’s responsibility at that point will be to design the roadway in such a way that it is not going to create unnecessary expenses associated with the future development of those intersection locations.  He stated as an example, the County could place drainage systems and pipes in those locations, which would have to be relocated at a high cost; that can be avoided by knowing where those intersection locations are; and also, there would be a median opening at that location, which would need to be placed at various locations along the road corridor.  He noted that would eliminate the need to tear up a median or interfere with drainage systems that will be there; the medians themselves will be part of the drainage system; initially, there will only be two lanes, so the medians will not be there; but staff will master-design that system to be able to accommodate those median locations; and the problem with building the intersections now is that staff does not know how long the turn lanes need to be, or if more than one turn lane is needed.  He stated Public Works does not have the data upon which to make those kinds of engineering design decisions; assumptions could be made, but then they would all have to be torn out; the idea is to not construct the intersections which would invite people to turn off the road and drive onto the ranch; and that is not something the Platts, nor the County, would want.  He stated knowing the locations will ensure there is not an undue expense placed upon the County that could potentially be wasted entirely, or upon them later, that would increase their costs.

 

Commissioner Nelson stated Mr. Denninghoff had previously mentioned the Platts being able to choose the locations of the crossings; and stated he hopes that is within some standard.  Mr. Denninghoff advised the general spacings are already spelled out in the agreement; and those locations are in conformance with the standards that would typically apply for this circumstance.  Commissioner Nelson stated as part of the agreement, the County is building an overpass for agricultural purposes, but it is also allowing for the crossing of the road at the intersection locations until the intersections are constructed.  Mr. Denninghoff stated the intent is not to obstruct the ranch operation any more than it has to be during construction; and eventually, when completed, the overpass would accomplish that.  Commissioner Nelson inquired if the County is allowing them to cross, why does there need to be an overpass; and inquired if Mr. Denninghoff is saying after construction, they cannot cross.  Mr. Denninghoff stated there was a recent discussion on that subject; and the anticipation is that they will be crossing underneath the overpass.

 

Eden Bentley, Deputy County Attorney, stated looking at the cost to cure, Part III discusses   ranch   access  modifications;  and  it  specifically  contemplates  single  road access underneath the overpass after it is constructed; and that is for the farm vehicles that are large and would cause a traffic hazard. 

 

Commissioner Nelson inquired if the Platts do not retain beyond the construction of the road, the ability to cross.  Ms. Bentley stated she suspects there to be a discussion about that; the contract does not provide for driveways at the unbuilt intersection locations. 

 

Commissioner Nelson stated currently, two lanes of roadway are being contemplated, with one overpass; and inquired if the overpass will be built for four, or two, lanes.  Mr. Denninghoff stated staff would contemplate two lanes with the ability to either widen that bridge to accommodate more lanes, or to build as a separate two-lane structure.  Commissioner Nelson inquired who would pay for that when it is necessary.  Mr. Denninghoff responded at this point he would assume that it is going to fall to the County, or the public, to do that, although under current rules and statutes, the developer could be required to either build it totally at their expense, or it could be totally at the public’s expense, or some combination; and it depends on the traffic volumes that the development is generating as compared to the traffic volumes that are being generated outside and separate from the development. 

 

Commissioner Nelson inquired in the pool of potential right sizing properties that staff created to transfer lots from, how many were already developed, and what was the maximum that the land use allowed.  Stuart Buchanan, Planning and Development, advised all of them are currently developed; staff is only proposing to take from existing developed lots; all parcels are currently assigned Residential 15; and there is currently an excess of 21,000 units on the Future Land Use Map, just from those lots.  He noted staff did not include any vacant lots because it is possible that if staff did take from vacant lots, the owner would want to use that higher density, whereas if it is already developed they would be unable to use that density in any case.  Commissioner Nelson inquired how many are developed lots within that area.  Mr. Buchanan advised there are 3,000 units used of the 24,000, leaving 21,000 in excess; it is proposed to take 3,000 units and transfer them to the Platts property, and take the additional 17,000 off the map all together; and the amendment would actually be a reduction in the Future Land Use Map of over 17,000 units.  Commissioner Nelson inquired if it is not classically done in the way of transfers of density, is that if there is property that is to be preserved in one location, and a higher density is allowed in another location, and that is when the transfer is done to preserve some land to be able to create a higher density on other land; but taking already developed lots and creating this mechanism, he does not know if he has ever been involved in that kind of effort.  Mr. Buchanan stated as far as he knows, it has not been done in Brevard County; but it has been used in other counties and cities.  Commissioner Nelson stated as a concept, he does not believe it is appropriate, because it is not planning, it is Let’s Make a Deal; stated he can live with everything else in the contract; the roadway is one that is needed; but he is concerned that the Board has created a precedent for transfer of lots that have no basis on sound planning principles; and this is just getting right-of-way.  He stated he does not think it is good public policy to arbitrarily identify and transfer and give development units; and stated he will not support the contract because of the density transfer issue.

 

Commissioner Fisher inquired when the closing will take place.  Attorney Knox advised the closing is scheduled to occur 45 days after the date that the Board approves the final land use amendment, which would occur after DCA has looked at it and sent it back to the County.  Commissioner Fisher inquired what happens if DCA does not approve the amendment.  Attorney Knox replied if the DCA does not approve the amendment, the deal can be voided.  Commissioner Fisher inquired what will happen to the Parkway if it is voided because DCA does not approve the amendment.  Attorney Knox replied staff will go back to the drawing board and work on an agreement amendment at that point; and right now, as it is structured, if a land use does not go through, then the deal does not go through.  Commissioner Fisher inquired if that means the Board will be back in an imminent domain situation; with Attorney Knox responding possibly, if the Board wants to continue to build the road.  Commissioner Fisher stated he thought the Platts wanted to work with the Board.  Attorney Knox advised the Platts can back out of the deal, or they can also amend the deal at that point; but it depends on how things go; and there is nothing to say the Platts would not sell it to the County, it just says the contract is void if it does not happen.  Commissioner Fisher inquired what is the advantage of the Board doing this now if it does not have the DCA approval.  Attorney Knox stated the advantages are that the terms of the contract will be locked up if DCA does grant approval.

 

Commissioner Anderson advised a lot of lots are being taken off of the future planning map; and he believes DCA will be pleased with that.

 

Commissioner Fisher inquired if impact fees were always part of the deal; with Attorney Knox responding affirmatively.  Commissioner Fisher stated he would like the Board to consider buying the land; stated he thinks it is in the Board’s best interest to own it; and he would be interested in acquiring the 10 acres.

 

Commissioner Infantini stated originally, she was concerned about the density transfer, and the cost of dirt; the things she was concerned about, the Platts have made concessions; and she is leaning toward being in favor of the contract.

 

Commissioner Nelson stated four small area studies were done on Merritt Island that went through a right-sizing process; the studies were to identify what had been developed, what was available for development, and to look at the community’s desire for their community at this point in time; it was a year-long process to determine what was right for the community; and 6,000 units were taken off the books on Merritt Island.  He stated the studies were done in a way that had significant community input; it did not impact infrastructure, nor did it create growth in a new area; and as a result of that, it was a very clean, straight forward process.  He stated with the Parkway, there is no process; when doing a true right-sizing process, the community is involved in order to have a discussion; and it is then determined what the community’s desire, as that is who the Board represents.  He added, he supports the Parkway, but the Board has interjected something into a land deal that does not belong there; and stated the Board has created the right-sizing process that does not have what he considers to be a community interest at heart.

 

Commissioner Anderson stated he does not necessarily disagree with Commissioner Fisher on buying the 10 acres;  in the  early  negotiations,  he was  told  by staff  that  the County policy is if the Board buys right-of-way straight-out, or if it is not donated in some fashion, then the owners are not privileged to get access to the roadway any further; and that that is where it changed in his mind, because the Board cannot buy it straight-out because the current policy say if access is wanted to the Parkway from the property, the owner has to donate the right-of-way.  Mr. Denninghoff stated the discussion had to do with the way staff was negotiating acquisition of right-of-way for the Parkway with the various property owners involved; staff was addressing access issues as it was negotiating, rather than just buying a parcel of land that would become public road right-of-way, whereupon lots could be illegally created and have any number of driveways; and staff was trying to control that circumstance so that the resulting road would have, at minimum, a number of driveways on it so it could maximize capacity and travel time.  He stated in most cases, when purchasing property, staff was doing so in a manner that would eliminate access from the remainder parcels of the property owners that staff was negotiating with; that was done upfront, and nothing was underhanded or sneaky about it; the County was very upfront with the owners; and in most cases, they did not want access, as they wanted to maximize their value in terms of the check they would get from the public to obtain the right-of-way.  He advised in the case of the Platts, they had a different idea and concept; and so there was a shift in those discussions and negotiations towards the idea of allowing them to have access.  He noted there were other locations in which the County would have to allow access because of the configuration of the properties that were involved; and the Platts wanted to enjoy that same arrangement.  He stated what that afforded the County was the possibility of having a negotiation of where staff was working towards a solution as opposed to working towards imminent domain. 

 

Commissioner Fisher stated he supports the Parkway, but he does not support the contract.

 

Commissioner Anderson stated the Parkway has been a long time coming; Palm Bay just acquired the critical piece from Malabar to Emerson; that means 90 percent of the originally envisioned Parkway was from Malabar Road to S.R. 192; for whatever reason, it stalled; and now the current Board is further along than any other previous Board in the past 20 years.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to approve Contract for Sale and Purchase with the Platts, et. al; authorize the Chairman to execute the Contract; and authorize staff to combine the Platt and County Future Land Use Amendment change proposals.  Motion carried and ordered; Commissioners Nelson and Fisher voted nay. 

 

 

Commissioner Anderson stated he would like to thank staff for all of their hard work.  He stated he would like to ask the Board to direct staff to move forward with the density transfer and to also move forward with the two small parcels remaining in that segment; and inquired if staff needs an official stance from the Board for that direction.  Mr. Scott stated staff is  already  working towards that end;  and staff anticipates working it into the 2010-2011 Amendment cycle.  Commissioner Anderson inquired if staff is moving forward with negotiations on the Albright and Toby parcels with those property owners.  Mr. Denninghoff advised several property owners along the remainder of the corridor have been waiting to see what happens with the Platts; he expects the negotiations to thaw a bit; staff had been moving forward with performing appraisals on the property towards the end that staff would be able to negotiate a contract; and some of the property owners have expressed concern regarding the Platt Agreement, and that it might alter their view on what they think they can get and do, which will present some separate challenges.  Commissioner Anderson noted there may be some owners that the County will have to go to court with.

 

 

*The Board recessed at 12:00 p.m. and reconvened at 1:11 p.m.

 

*Chairman Bolin’s absence is noted.

 

 

 

Robin Sobrino, Planning and Development Director, advised the item is a request by the developer for Watersmark Subdivision on Merritt Island to get a one-year extension on completing the last couple of items that they need to do in order to finish out their subdivision and have the County release the remaining money being held in escrow. 

 

Commissioner Nelson advised the developer has complied with most of the things that were causing problems in the community; and he would like to thank staff for staying on top of that. 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to grant a one-year time extension for the completion of Watersmark Plantation Subdivision Infrastructure.  Motion carried and ordered unanimously.

 

 

*Chairman Bolin’s presence was noted.

 

 

Jerry Brinegar stated people need their people and liberty; people work hard and pay a lot of taxes; and he thinks people deserve to be left alone by Code Enforcement.

 

Robin Sobrino, Planning and Development Director, advised the item is in response to direction from the Board to go back and revisit the section of the Code that provides for administrative approval of Commercial Vehicles in residential areas; and it was originally connected with a presentation by someone going through Code Enforcement for parking a semi-tractor trailer cab on her property.  She stated the proposal staff has presented to the Board today builds upon the administrative approval process that is currently in the Code; currently in the Code, if one has two and one-half acres of land and able to get the signatures of their neighbors, County staff can administratively approve parking a commercial vehicle on the property; and the problem is that the two and one-half acres did not meet the needs of the person who appeared before the Board at the Code Enforcement Workshop.  She stated staff is proposing an amendment to the Code contemplating a reduction in the size of the minimum lot size to one-half acre, provided there is some manner of camouflaging the vehicle on the residential property, either by way of it being enclosed in a garage, or having landscaped buffering, but also still requiring the signature of the neighbors in order for it to stay an administrative approval.

 

Commissioner Infantini stated she is not in favor of the garage enclosure as a requirement, as it is a very expensive alternative; perhaps there could be some type of barrier with shrubbery, but not to where it is completely invisible from the road; stated she feels the proposed language is restrictive; and inquired if there is a way to reword the language.  Ms. Sobrino stated the purpose of the conversation today is to get feedback from the Board; and staff would be glad to address any comments from the Board. 

 

Commissioner Anderson stated if an owner had a true garage, where the vehicle is concealed, the Board should at least waive the signature requirement for a garage; but he understands the requirement of signatures if there is a buffer such as a fence or vegetation.

 

Commissioner Fisher stated he is concerned about reducing the lot size to half-acre; if the requirement was two acres, it may be easier to find a site with a garage; and he would support it if there was a requirement for an enclosed structure.  He stated he is hoping the Deed restrictions will dictate what the structure will look like; but stated he has a concern with parking a tractor trailer on a half-acre.

 

Commissioner Anderson stated for the most part, people who live on half-acre properties are blue-collar people; stated there is a different expectation in June Park than there is on the beachside; and the Board has to find a way to resolve that so people can continue working.

 

Commissioner Fisher stated in his District there are one-acre lots with average sized homes, but if everyone was allowed to park a tractor trailer in front of them, it may cause some problems with the neighbors.

 

Chairman Bolin stated she is in favor of the requirement of the neighbors signatures, because there are other factors besides the visual; there would be extra traffic on the streets; and there is also a lot of noise associated with commercial vehicles and tractor trailers. 

 

Commissioner Anderson stated his only concern with a garage is that it would be required for a tractor trailer, but not for a 40-foot RV; and perhaps the Board should require  RV  owners  to get  signatures  from  their neighbors.  He stated if a  commercial vehicle, or tractor trailer has to be in a garage, then the Board should waive the neighbor signature requirement.

 

Commissioner Infantini stated she agrees with Commissioner Anderson; stated if a vehicle is enclosed in a garage, then she does not think there should be a signature requirement from the neighbors; and commercial vehicles and tractor trailers actually reduce traffic because if allowed to park on the property, it is less vehicles because that driver will have to be picked up and brought to the home.

 

Jill Amigh stated Commissioner Fisher spoke earlier about the economy and people continuing to work; she and her husband’s job depends on their tractor trailer; they have had increased costs now that they have to park their vehicle somewhere else other than their property; and it is a big deal for them.  David Amigh stated parking the vehicle offsite limits his ability to do simple maintenance on the truck; he has to be able to change the oil and check the tires; it is up to him as an owner/operator to make sure his truck is safe for the highway; and it costs him $80 to $100 per hour to have someone maintain his truck for him, because he cannot do it at home like he used to.  He stated he used to bring the whole truck and trailer home, but now he just wants to be able to bring the tractor home and park it where it cannot be seen; and stated he has the ability to do that with his property.  He stated his ability to make money is very limited in trucking; the economy is bad; rates are low; and he pays State fuel taxes, heavy vehicle tax, permits, and tags, which cost $1,700. 

 

Commissioner Fisher inquired if Mr. and Mrs. Amigh are in a Deed restricted neighborhood; with Mr. Amigh responding no.  Commissioner Fisher inquired how the original Ordinance came about.  Rick Enos, Zoning Manager, advised the original Ordinance was a reaction to a similar situation where someone had their own vehicle and wanted to park it on their own property, and they happened to have two and a half acres; that is where the two and a half acre requirement came from; and it was approved by the Board in the 1990’s.  Commissioner Fisher inquired if someone is in a deed restricted community, would the deed restriction outweigh the Ordinance; with Attorney Knox responding affirmatively. 

 

Commissioner Nelson stated one thing that is difficult for him is that the Code does not allow work outdoors in BU-1 and BU-2, but now the Board is considering allowing maintenance of a tractor trailer on residential property.  He stated Merritt Island has half-acre waterfront lots; and if the Board is going to amend the Ordinance to allow vehicles to be parked on half-acre lots, then he hopes it is only approved for June Park.  He stated the Amighs have the ideal set of circumstances for what they are requesting; but the Board is dealing with a larger group of possibilities than just their lot; and he is struggling to see that change.  He stated he feels for the Amighs, but he is also looking out for the unintended consequences.

 

Commissioner Anderson inquired what is the difference between a tractor and an RV; and stated Mr. Amigh is licensed to drive tractors, whereas RV owners buy them without knowing what they are getting into.

 

Commissioner Fisher inquired what happened to the enclosure idea; and inquired if the Amighs said at a previous meeting that they were going to build a garage.  Ms. Amigh stated they were asking if they could just continue parking on  their property as they  had been; if not, could they have shrubbery as a buffer, as they have so much of it; and if those two requests did not pass, they would build a garage.

 

Commissioner Infantini stated requiring a garage is going to negate all of the financial benefits for the Amighs for at least two years; and inquired if there is a way the Board can make exceptions on a case-by-case basis.  Attorney Knox stated the Board can make exceptions on a case-by-case basis if it creates standards that are sufficient to allow it to make a determination on a consistent basis; and stated he is looking into another possibility, which he will bring to the Board in the near future.

 

Ms. Sobrino stated staff is considering how to possibly enact something that would be on a case-by-case basis; a conditional use permit is a possibility; but that would not be an administrative process; and it would be a public hearing in front of the Board. 

 

Commissioner Fisher stated if there is a condition for a shrubbery buffer, it is always assumed shrubs are going to be there; but shrubs are not a permanent buffer.  He noted if it is a conditional use in which the applicant has to go through the public hearing process, the neighbors will have an opportunity to oppose it or speak in favor of it.

 

Commissioner Anderson stated he likes the idea of a conditional use permit because if a neighbor argues with the request, the Board still has to look at the facts; and that puts the burden on the Board; but he is willing to do that.

 

Commissioner Fisher inquired of the process to obtain a conditional use permit.  Mr. Enos replied a conditional use permit is an application before the Planning and Zoning Board; the application would eventually come to the Board of County Commissioners; there will be conditions in the Code which must be met; and through the public hearing process, other conditions can be added if the Board feels it appropriate in order to address case-by-case issues.

 

Commissioner Infantini stated her concern with the conditional use process is that the Board is not going to meet again for another month; it could take months to get a conditional use permit request to the Planning and Zoning Board, and then to the Commission; the issue has been dragged out for months; and inquired if there is any type of temporary remedy that can be offered today so that the Amighs will not be fined and penalized while they pursue a conditional use permit.  Attorney Knox advised the Board can abate any kind of Code Enforcement pending an amendment to the Ordinance; an amendment to the Ordinance is going to be required; and this situation is not contemplated in the current conditional use ordinance.

 

Ms. Sobrino advised both the amending of the Ordinance and the public hearing process require the creation of a Code, therefore going through the whole process of creating the Code.    Commissioner  Infantini   inquired  if  she  can  make  a  motion  to  abate  Code Enforcement penalties for the next two months, or until a final outcome is derived; and that would give the Amighs immediate, but temporary, remedy to correct the situation.

 

Commissioner Nelson stated his problem with abating Code Enforcement is that the Amighs are currently in compliance; there is nothing to abate at this time; and the Amighs might have the ideal circumstance, but there are other people who can suddenly begin taking tractors to their homes.  Commissioner Infantini stated she is only proposing abatement for two or three months.

 

Commissioner Fisher stated if approved as requested, it will allow anyone who has a half-acre lot to park a tractor cab in their yard.  Commissioner Anderson noted yes, it would be just the tractor and not trailer.  Commissioner Nelson inquired what about tow trucks and other commercial vehicles; and stated the Board may be opening a can of worms.  Commissioner Anderson stated the Board can limit it to only tractor-trailer component tractors, and not dump trucks. 

 

Attorney Knox advised another alternative the Board may want to consider is just abating enforcement to the Amighs property only, because these things come up on a case-by-case basis; and if more come along, then those people can come to the Board seeking the same abatement, pending the new ordinance being put in place.  Commissioner Anderson stated he would be willing to do that temporarily.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to abate any Code Enforcement action on the property of Jill Amigh, located at 702 Vine Street, Melbourne; and direct staff, once it comes up with a new proposal to address the CUP, to bring back to the Board an Agenda item with Legislative Intent and Permission to Advertise a Conditional Use Permit to allow the parking of semi-tractor trailer cabs within residential areas.  Motion carried and ordered; Commissioner Nelson voted nay.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to authorize advertisement of bid, and award to lowest responsible bidder; and authorize the Chairman to execute the Contract and Budget Change Requests for Phase II Restoration of the Pritchard House.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to execute Receipt of Partial Distribution acknowledging the sum of $50,000 as a partial distribution to Brevard County Libraries/West Melbourne Library as a beneficiary of the Weaver Family Trust.  Motion carried and ordered unanimously.  

 

 

Commissioner Fisher stated he had asked staff to take a look at an overall cap to make sure when the Board hits a certain level that it will never again put itself in a situation where it could bankrupt the system; that means some additional coverage could be purchased; and he is in support of the item, but he would like staff to look into that cap.

 

Commissioner Infantini stated she is a proponent of having the Stop Loss option. 

 

Jerry Visco, Insurance Director, stated staff has gone back and forth on the value of the insurance versus the opportunity to self-insure; today’s Agenda Item is meant for the Board to have a discussion on different options; and stated personally, he is a proponent of purchasing the coverage; but given the economy today, the renewal options staff has been given, along with the combinations of premiums and deductibles, and how they have been stacked over the years, make it difficult for him to recommend to the Board that it invest up to $750,000 with the potential of gaining back very little.  He stated staff has run analysis of the claims history for the past four years; and there is no single claim year under any of the renewal options, where the Board has returned anything close to the premium it is investing.  He stated with that kind of investment, it seems prudent today to take that $750,000 and hold on to it, and use it to pay the claims that have been see historically; if the Board gets an unprecedented claim, there is the potential for additional exposure; and staff feels comfortable that there are sufficient reserves in place right now that anything that comes down the pike can be responded to.

 

Commissioner Infantini inquired if going forward and the Board does suffer a catastrophic claim, then will the claims rate go up the following year if it wants to reinsure, thereby making the Board less likely to be able to obtain insurance.  Mr. Visco responded, no, because if that claim were to hit whether the Board was insured this year or not, it would still hit it in the same manner at the renewal in 2011. 

 

Commissioner Fisher noted it should be remembered that each person has a Stop Loss anyway; and the most any claim is going to pay is $1 million, because that is what the coverage has provided.  Mr. Visco stated Commissioner Fisher is correct; all claims are maxed at a $1 million lifetime benefit; and the Board is really looking at a relatively small window between where this coverage would pick up, and when the Board would hit the $1 million cap.  He stated he spoke to the consultants and received a quick rundown on aggregate Stop Loss; the way it is being offered today, is that a minimum of 20 percent to 25 percent above-expected claims appears to be the threshold; and it is the kind of program that makes sense for small insurance, but makes a little less sense for large insurance.  He stated the Board may be responsible for approximately $8 million of additional exposure above the expected claims before insurance would kick in; it is worth exploring; if the numbers can be worked out, staff can see what a premium for that looks like; but presently, there are sufficient reserves to meet that particular demand.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to authorize the Group Self-Insured Health Plan to non-renew the Stop Loss (excess insurance) coverage currently in place in favor of self-insuring that potential exposure in 2010.  Motion carried and ordered unanimously.

 

 

Maureen Rupe stated she would like to request extra time, as she has two requests that are intertwined; and if that is not suitable to the Board, she can return on another meeting date.  Chairman Bolin advised the Board will grant Ms. Rupe additional time.

 

Maureen Rupe advised the July 28, 2009 Brevard County Commission meeting, Commissioner Infantini stated, “I have done an extensive amount of research with the assistance of my staff and others, and I feel comfortable that I have millions of dollars that can be shifted from one location to another in the budget.”  She stated the Chairman asked Commissioner Infantini to share the list, to which Commissioner Infantini replied, “Not at this time.”  She stated on July 29, 2009 she sent a Public Records Request to Commissioner Infantini asking her office for the list of budget reduction items; on July 30, 2009, Commissioner Infantini sent her an email stating, “While I always comply with Public Records Requests, yours will be difficult to fill because the list is not a written document, it is still within my mind.”  She noted on the same day, she emailed Commissioner Infantini explaining her confusion with the Commissioner’s statement, and sent another records request for now all of Commissioner Infantini’s emails concerning the upcoming budget; on August 5, 2009, the County I.T. Director sent her an email stating, “It will be difficult to separate the budget items, but it could be done fairly cheaply with a disc”; and stated she informed the Director that she would take all of Commissioner Infantini’s emails from May 2009 through July 2009.  She noted she also offered to go to Commissioner Infantini’s office and read through the emails there in order to save County staff’s time; stated the Commissioner offered to send the emails herself; and stated Commissioner Infantini told her on a later date that no one would go onto her computer unless ordered by a judge.  She advised Commissioner Infantini also sent an email to County staff stating she would not give her permission for her to have her emails; on August 5, 2009, Commissioner Infantini sent her five emails with attachments; stated she heard nothing more until August 21, 2009, when the Commissioner sent her an email asking if she received the 100 emails she sent her on August 5, 2009; and stated the 11 emails she did receive had “read receipts”.  She stated she told Commissioner Infantini that she had not received the 100 emails; stated she then received approximately 50 more emails; but in the meantime, it did not seem like Commissioner Infantini was complying, because the budget was going to be over and she would not have the budget-related items.  She stated she also knew that Commissioner Infantini sent an email to County staff that reads, “Dear County employees, I would like to invite any employee to write my office to voice any concerns about department consolidation discussions taking place.  My door, phone, and email box are open to everyone.  Please remember if you wish to remain anonymous, make sure you do not place your true identity in the profile when setting up the email account, because the name of the sender is attached with the email address.  You are invited to include your name.”  She stated on August 9, 2009, she sent an email to the Interim County Manager for a public records request for all of Commissioner Infantini’s emails on both accounts she was using for official business, from the period of May to August 2009; and she also told the Commissioner to not send anymore emails, as they would just be duplicates.  She stated the Interim County Manager told her he would get the records for the official County email, but that he had no control over Commissioner Infantini’s, ‘Vote for Infantini’ email address, as it did not go through the County server.  She stated she called the Commissioner and asked for the official emails, and she refused, saying it was her private  account;  stated  she informed  the Commissioner that she had openly used it for County business by distributing it to County staff; and on September 25, 2009, she received two emails from the ‘Vote for Infantini’ private account, but she has received nothing more since.  She stated the issue is troubling to her; and inquired if the only thing elected officials need to do to get around State law is create personal email accounts.  She stated she is requesting that Brevard County require all County business received from or sent to a private email account be copied to the County department responsible for tracking emails for public records laws; and in this case, the County knew Commissioner Infantini was using a private email account for business, as she sent the address to all County staff stating that staff could anonymously email her alternate private account.  She stated Commissioner Infantini should also have been notified of the rules and implications as soon as the email was received by the County; or better yet, the County could require that no County business be conducted by County employees using private email accounts; and she is requesting that public records and Sunshine Law training be required of all newly elected County officials that have not held office before.  She stated she asked Commissioner Infantini twice if she could review emails in her office on a computer, and she said no; and stated Commissioner Infantini said in an email to the County Manager that she wanted to retract her permission to her for any emails, and also asked how my other Commissioners’ emails she requested.  She stated if the Board had read the entire email list, it would see even more delays; the courts have ruled that an unjustified delay in complying with a public records request, whether by intention or wrongdoing, or by ineptitude, amounted to an unlawful refusal to produce the records; and as the Board knows, the public records law is in place to ensure the citizens that government is working for the people.

 

Commissioner Infantini stated she did not refuse the emails from her ‘Vote Infantini’ account, which in fact, she made copies, cut and pasted them, and emailed them to Ms. Rupe; and stated she let Ms. Rupe know at that time that if it was absolutely important that she know the names of the people who sent those emails, she told her she would give those to her in person, rather than making it a public record for everybody.  She stated he whole intent when she sent out that email to everyone, not hidden from anyone, was to make sure staff was not overstepping their authority by combining and consolidating departments without going under the supervision of the County Commission; and stated she did provide Ms. Rupe with the emails.  She stated she sent Ms. Rupe emails on August 5, 2009, but sometimes she gets busy; when she responded to Ms. Rupe on August 21, 2009, she thought she had done everything correctly; stated she thought all of the emails were received by Ms. Rupe correctly; but because Ms. Rupe did not call her back and raise a fuss, she thought for sure she had been correct; and noted she emailed Ms. Rupe to confirm that she had received those emails.  She stated Ms. Rupe said she had not received the emails, so she began sending her all of her budget emails; stated it is true that she told the County Manager and the County Attorney that she thought Ms. Rupe was fishing, because she does not know what she could possibly glean from her emails regarding the budget; and many of the statements made by Ms. Rupe have been inaccurate or incomplete.  She stated she told the Interim County Manager that she would file and provide Ms. Rupe with all of her documentation and the emails regarding the budget; but Mr. Whitten thought that because they were under his jurisdiction because they were on the County server, that he needed to provide them; and stated she finally agreed to send Ms. Rupe whatever she wanted, as she does not have anything to hide. 

 

Ms. Rupe stated on August 9, 2009 she sent an email to the Interim County Manager for a public records request for all of Commissioner Infantini’s emails from both accounts she was using for official business from the period of May to August 2009; as she did not think Commissioner Infantini was complying with her July 30^th public records request, on August 17^th Mr. Whitten apologized and stated he could provide the information for the official County email, but had no control over Commissioner Infantini’s ‘Vote Infantini’ account, as it did not go through the County server.  She noted she called Commissioner Infantini and asked for the official emails, and she was refused when Commissioner Infantini said it was her private account, and that the account included emails to her husband and friends.  She stated she paid the County $30 for a CD; it was a Microsoft Office PST file, which she cannot load because she uses Windows; stated she returned the disc to the County to have it re-copied, but she still had the same problem; on September 22^nd she received an email from the County Manager’s Office stating the I.T. Department could not provide her with what she was requesting; and the email went on to read, “Since you already paid, do you want me to just print them out?”  She stated with that email, she was under the impression that she would not have to pay more than the $30; she then received a bill for $595 for 4,000 emails; and stated she was not going to pay it because she understood that she would not have to pay more than the $30 she had already paid.  She stated the I.T. Department made her a PDF file, which she picked up, but it did not work either; there were no attachments; the file would not open on four different computers; there was no payment even talked about for any of this, not even the disc; and the Florida Attorney General’s opinion on his website states the requesting party must agree on a price. 

 

Commissioner Infantini stated when she read the email to Ms. Rupe, inquired if she wanted the emails printed out because she had already paid $30, she thought that Ms. Rupe would not owe the $595; however, one week later, and two months prior to her picking up the hard copies, she was given a second email telling her the cost was $595; at that point, Ms. Rupe had the choice to either pick up the hard copies, or walk away; and she chose later to pick up the hard copies.  She stated she believes Ms. Rupe owes the $595, otherwise, the Board is going to set an awful precedent; and if the Board sets this precedent, then she hopes everyone does a public records request for every public official asking for all of their emails for four month periods, as it is not considered fishing.  She stated if the information that was presented was so incredibly time sensitive, Ms. Rupe would not have waited two months to pick it up.  She stated it is true that she refused to give Ms. Rupe access to her personal email account; stated she provided Ms. Rupe with the emails that concerned the County business that she requested; stated Ms. Rupe is not naïve, as she is used to requesting information from the County; and she believes Ms. Rupe owes the invoice.

 

Commissioner Anderson requested an explanation for the public of the procedure and any changes that will be made in the future for the public records requests and the charges that accrue on hard copies.

 

County Attorney Scott Knox advised, depending upon how the request for public records comes in, his office receives it and it is forwarded to the County Manager’s Office to Sally Lewis, who is the coordinator for the County; and Ms. Lewis makes sure that everyone responds to it that she thinks would be involved with it.  He stated once that happens, and all the data is collected by Ms. Lewis; she calculates how many pages, if they want hard copies, how many pages are involved, and she tries to give them an estimate of how much it is going to cost; and by Board policy, the first 30 pages are free, and everything after that is .15 cents per page.  He stated if the person requesting the public records has computer capability, staff tries to email as many as possible so they do not have to go through the payment process; if they do not have computer capability, staff puts the information on discs; but it has to be put on discs in the form that the County maintains it.  He stated in Ms. Rupe’s case, staff tried to convert the emails to PDF files, which is beyond what staff had to do; at that point, if Ms. Rupe had collected the paper and was aware of the $595 charge, the only way the Board Policy can be overcome by staff is to come before the Board and ask for a waiver; and stated that is probably what Ms. Rupe is here to do today.

 

Howard Tipton, County Manager, advised Attorney Knox has drafted a new public records policy; it is currently in draft form; but there are some key components worth mentioning.   He stated when a public records request is received, staff tries to provide an estimate of the amount of time it will take to go through it; it involves more than collecting information; staff has to go through the information and make sure there is not any personal information in the documents; that estimate, along with the number of pages will be shared with the individual up front so that there is a clear understanding; if there is an agreement, in this case $595 worth of materials, staff will ask for a deposit up front, such as 25 percent; and a deposit shows a commitment from the requestor as staff expends the effort and resources to review the materials and print them out and get them ready.   

 

Commissioner Infantini stated she would like to thank Sally Lewis for taking the time to make all of the copies; stated Ms. Lewis had to read all of her emails and make sure there was nothing sensitive in them.

 

Commissioner Anderson stated on September 29^th, Ms. Lewis notified Ms. Rupe that the copies were ready and gave her a breakdown of the cost; and inquired if the breakdown of costs were for the hard copies.  Assistant County Manager, Stockton Whitten, replied yes, the cost was for the hard copies.  Commissioner Anderson inquired what date the documents were picked up; with Commissioner Infantini responding November 17^th. 

 

Mr. Whitten advised it was actually picked up at the November 12, 2009 meeting; the authority to get the hard copies was given by him; on November 12^th Ms. Rupe actually asked for the hard copies, and he advised Ms. Lewis to provide those copies to Ms. Rupe; and stated he had said he would worry about how much she would be charged at a later date.

 

Commissioner Anderson stated as far as any other issues between Ms. Rupe and Commissioner Infantini, he believes what they are both saying; as a Commissioner, he has  no  ethical  purview  over  his fellow  Commissioners; the  Commissioners  have  no jurisdiction over each other as far as if there is an ethics charge; he is not going to weigh-in on that; and he thinks Commissioner Infantini’s integrity speaks for itself.

 

Commissioner Nelson stated he would like some clarification because he heard there was some cutting and pasting and withholding of names that was discussed; and he was not aware that the Commissioners were able to do that, as a record is a record.  Attorney Knox advised anything that is confidential by law can be redacted.  Commissioner Nelson stated most of the information received by Commissioners does not have social security numbers.   He stated the Board’s Policy is insufficient to deal with this issue because he is aware of at least two occasions where people have requested public records and then never picked them up; in one case it was an attorney in a litigation; those people are just as guilty; there was no conflict over if a copy could be made or not; and it came down to someone making the request and then the County gets stuck with the bill.  He stated the Board needs to fix the Policy and word it in such a way that it does not find itself in this position; it is not taking a position on who is right or wrong; and he is uncomfortable forcing Ms. Rupe to pay the fee versus not going after everyone else who has made a records request and then did not pick it up or pay. 

 

Chairman Bolin inquired when Mr. Tipton could put together the new Policy and bring it to the Board.  Mr. Tipton replied he can have it to the Board by January 12, 2010. 

 

Commissioner Anderson inquired if the records were picked up by Ms. Rupe; with Commissioner Infantini responding affirmatively.  Commissioner Anderson inquired why the charges are not collected when the records are picked up.  Mr. Whitten stated Ms. Rupe was asking for records that she had asked for, for a period of over several months; his decision when Ms. Rupe asked again on November 12^th was to give her the records and determine whether or not she owed for those hard copies at a later date; and stated it was his decision to actually give her the records without having her pay in advance or upon pick up. 

 

Attorney Knox stated by County Policy, as it currently stands, Ms. Rupe is responsible for payment; staff copies the records; the first 30 pages are free; the rest are .15 cents per page; and Ms. Rupe picked them up.  He noted the offset he would see may be for the $30 she paid for the disc she could not use.

 

Commissioner Fisher stated the email read by Ms. Rupe implied there would not be any additional charges because she had made payment.  Commissioner Infantini stated at that point it would seem like Ms. Rupe would not have to pay.

 

Mr. Whitten stated the miscommunication of the weak part of staffs process was that there was no calculation of effort; and that calculation of effort translating into a potential dollar amount is perhaps relayed to the requestor after staff has actually done the work. 

 

Chairman Bolin stated when the statement was made to go ahead and print the documents, there was no knowledge by Ms. Rupe of how many emails there were to be printed, which would then also equate to what the cost would be. 

 

Commissioner Infantini stated Ms. Rupe did not have to pick them up; on September 29^th, Sally then emailed and said, “Maureen, I have not forgotten you.  It has taken a long time to print all of the records that you requested.  Here is the breakdown.  You already paid $30 for the disc with all of the emails on it.  I printed out all the emails you requested and they are ready to pick up. There was a total of 4,200 pages.  Total amount due for the copies is $595”.  She stated had Ms. Rupe chosen not to pick up the documents, that would be fine and she would say the Board would have to eat the costs because she was not aware; but a month and a half later she was aware of the cost; and Ms. Rupe picked them up. 

 

Commissioner Fisher stated everyone has to comply with law; the County’s process is gray; and when there are rules that are gray, the Board owes it to give the benefit of the doubt to the citizen.  Commissioner Nelson stated he agrees with Commissioner Fisher; if the Policy in place had been able to address this, he would have no trouble saying Ms. Rupe owes the money, because she would have known in advance and had a deposit in place; but he thinks the Board owes its citizens the benefit of the doubt.

 

Commissioner Anderson stated he is going to defer to the County Attorney’s opinion that the charges are due; he agrees the system is vague; but Ms. Rupe is a very active dedicated citizen; and this is not the first time she has picked up copies. 

 

Commissioner Fisher stated his concern is that the process began in August; and inquired about the timeline it took Ms. Rupe to obtain the documents.  Ms. Rupe stated on September 22^nd she had the email asking, “should I just print them out”; she then called Ms. Lewis and told her she would prefer them on a disc, but if that is her only alternative, then go ahead and print them.  She stated she honestly believed she would not pay for them, and indicated in the previous email; when she received her bill by email on the 29^th, she was in shock; and she did not pick them up because Mr. Whitten would not let her pick them up.  She stated when she asked Mr. Whitten again on November 12^th he said for her to go ahead and take them. 

 

Mr. Whitten stated Ms. Rupe’s recollection of that is the same as his recollection; and his response was to meet the public records request and worry about the $595 at a later date. 

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to direct the County Manager to waive all fees regarding the Public Records Request of Maureen Rupe; and directed staff to clear up the public records request process.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

 

Theresa Clifton advised the Humane Society opened a low-cost spay/neuter facility on its property on Cox Road to help with the pet over-population problem; the facility has been successful; but unfortunately, the culverts on the property are over 50 years old and need to be replaced;  and the  Humane Society planned  on  replacing one or two of them, but it has been told now that all three culverts need to be replaced.  She stated she hopes the Board will consider what the Humane Society is doing for the community at-large as far as the animal population and assist it in getting the culverts replaced.  She stated she is asking that when the roads are repaved and there is the equipment and manpower already in front of the Humane Society property, that if it pays the $36,000 to provide the materials, that the manpower and equipment can do the culverts at the same time as they are fixing the roads in front of the property.

 

Commissioner Nelson inquired if the project was the change from LOGT to a stimulus project.  John Denninghoff, Public Works Director, replied yes, the Cox Road project is a stimulus project; there will be a contractor doing the work; it will probably be under construction the later part of January; and it will not actually be the County doing that work.  He stated the request is for the County to do the work for the culvert replacements and the associated driveway repairs. 

 

Commissioner Nelson inquired if the $36,000 is the cost of materials.  Ms. Clifton replied yes, the amount on the Agenda Report is the amount the materials cost; the labor and equipment cost given to her by Mr. Denninghoff was $36,423; and stated she found it high, particularly when the crews are going to be directly in front of the Humane Society. Commissioner Nelson noted it will not be County employees doing the work. 

 

Commissioner Nelson inquired what the funding options are if the Board wants to consider the request.  Mr. Denninghoff advised currently the County employees that would do the work would be the Road and Bridge construction crew, which is paid for out of the General Fund, and they earn money that goes into the General Fund; and the project is not one that was budgeted, so to the extent that the County makes more money than it spends, this would be a project that would go on the red side of the County ledger.  Commissioner Nelson stated in other words, the Board basically took the money that it had allocated originally to do Cox Road it is now being supplemented by stimulus dollars; now the County is going to do North Cox Road with those LOGT dollars; and inquired if the costs for those two projects are the same.  He inquired if Ms. Clifton can wait until the next Board meeting so staff can discuss the numbers.

 

The Board reached consensus to table the citizen request by Theresa Clifton regarding culvert replacements on Cox Road to a future Board meeting. 

 

 

 

Chenita Joiner, Housing and Human Services, advised the project was funded by the Board on July 17, 2009 in the amount of $630,000 for the buy-down of debt; the debt for the project consists of a mortgage in the amount of $564,238.87; rehabilitation expenses in the amount of $50,515.79; and property taxes for 2008 and 2009 in the amount of $15,245.34.  She stated the funding source for the project was State SHIP funds; the Administrative Code, which SHIP falls under, does allow funding for a debt buy-down; Brevard County’s Local Housing Assistance Strategy Plan, which the housing programs are operated under, also allows for the buy-down of debt; and stated there is a rental strategy that allows debt buy-down as  a  way  of  creating  affordable  housing  units  for lower income families.  She stated in exchange for the funding provided by the County and the debt buy-down, Brevard County benefitted by receiving nine, two-bedroom rental units for low income families; the restrictions placed on River Bend as the result of this funding was that the households occupying those units had to be 50 percent or below the median area income; the maximum allowable for a household of three persons to earn is $28,000 annually; and SHIP funding requires that the County apply a minimum amount of its funds to households at that level or below.

 

She stated another restriction placed on the agency was rent restrictions, which are the HUD established rent limits; they are updated annually by HUD; for the River Bend project, the two-bedroom unit cannot be rented for more than $540 monthly for the current fiscal year; and the two-bedroom townhouse cannot be rented for more than $565.66 per month.  She noted those rents are adjusted by HUD annually.  She stated the affordability period of the timeframe that these units have to be maintained at these rents with these income levels of household is 26 years; the first year is given to rent out the units; and for the remaining 25 years they have to be maintained at the rent levels.  She advised the agency must sign three documents; one is a mortgage and security agreement, which secures the property as collateral; the agency also had to sign the mortgage note, which is not a forgivable note, and upon default, the note is payable in full; and it is also required that the agency sign a land use restriction agreement, which guarantees the units will remain affordable for the minimum of the 26 years; but if for some reason the agency defaults on the note, the County will receive first right-of-refusal, along with repayment of the note.  She stated to ensure the agency is held accountable and follows the guidelines, Housing and Human Services monitors the progress; the agency has to submit monthly progress reports; monthly and annual site visits are conducted to make sure the units are maintained and in line with quality housing standards; Housing and Human Services also ensures the income of the tenants are within the guidelines, and the rents are those which are set by HUD; and noted Housing and Human Services also looks at the financial statements of the agency to make sure that adequate rent reserves are in place to ensure there are fines in place for maintenance costs over the affordability period.  She advised in addition to monitoring by Housing and Human Services staff, the State staff also conducts a site visit on an annual basis to monitor all of the projects to ensure they are in compliance with the State requirements.  She stated staff is requesting the Board review and approve the contract amendment as presented pursuant to the County Attorney’s suggestion; also indicated in the Agenda Report is a request for future Board action to address the Clerk of Courts concerns; those concerns are listed as staff believes them to be; one concern of the Clerk is that he would like eligible debt for buy-downs to be pre-determined instead of part of local policy; and currently the administrative Code leaves the definition silent and allows the Affordable Housing Council to look at debt on a case-by-case basis.  She noted the Clerk of Courts would also like a policy that utilizes property values in determining debt payments, including debt payments scheduled that reflect a percentage of a property value.  She noted the Affordable Housing Council looks at property value, but it is not the main determinate, as it also looks at other variables such as ensuring that a property has clear title, ensuring that property standards are in place, ensuring that there are adequate reserves, and most importantly, ensuring that the units are going to be affordable over the 25-year period.  She stated in evaluating the concerns and looking at the local policy and the State policy,  staff felt it is clear there is not a compliance issue; there seems to be a difference in interpretation between the County and the Clerk as it relates to what the program policy should be; and program policies are items that are decided at a Board level, and not a staff level.

 

Scott Ellis, Clerk of Courts, stated this issue began in September when the item came to the Board; his office requested the appraisal and title work; and the appraisal and title work had not been done before the Board voted to approve the expense.  He stated his staff went through the public records and pulled out the note; the mortgage is $525,000; that is the debt on the buy-down; reading through the mortgage, there is $125,000 tied to a commercial property; and his position was that $400,000 of that mortgage was tied to the apartments.  He noted there is an additional $105,000, which was back debt of unpaid mortgages, unpaid taxes, and possibly unpaid construction; it is important to note that the $525,000 was a construction loan, which was a loan to do the improvements on the property; the property was previously already held without debt; out of the $525,000 to do the improvements, with $170,000 worth of improvement billed, he does not understand how $50,000 is outstanding; and generally, on something like this, if the improvements are completed, someone would be paid to do improvements to make it ready for affordable housing, and not going backwards.  He stated he has been in contact with staff for quite some time; he met with staff on the 19^th; and his position on the 19^th was that the County would not pay the $125,000 tied to the commercial property, or the $105,000 tied to the bills.  He stated he contacted the Assistant County Manager and County Manager three more times prior to the December 4, 2009 closing date; he received a call the day before the closing, in which he made clear that the property would not close at 6:30 p.m. as scheduled; staff had done a report that said his concerns were not concerns at all; he was never given the report; he was told by the attorney for the client, and by staff, that there had been a legal opinion that there were not concerns tying the second property; and to date, he has still not received those reports, or the legal opinion.

 

Bill Cantwell, representing Riverbend Pineapple Partners, stated Mr. Ellis has talked about his concerns related to title work and the appraisal; but that is not Mr. Ellis’s position; stated he has researched the law on the issue; he is a board certified construction lawyer, as well as a board certified business litigator; and it is his review of the contract provided for the payment of the funds that are in dispute.  He stated the property issue with the agreement has gone away; it has been resolved; and it is his understanding that the only issue left is related to the construction funds, which he believes the contract provides for.  He advised he asked Mr. Ellis to provide him with the legal authority that he has to withhold the money; what Mr. Ellis provided was the Alachua County vs. Powers Case, which talked about the Clerk’s role; stated the Clerk’s role is specifically limited in that holding to make sure the funds are not going to be used for something illegal, or an unlawful purpose, not because Mr. Ellis thinks the County is paying too much debt for the entity, or that he does not think the contract provides for something; and stated there are more than enough qualified attorneys working for the County to render legal opinions on contracts.  He stated in July the issue was first approved by the Board; in October it was approved by the Board again and there is a written contract; and now, after the fact, there is a bunch of questions being asked, therefore delaying the closing.  He stated his client has put a lot of money, effort, and time into this project; the SHIP  program  is excellent, as  it provides  lower income  folks with affordable housing; and in his opinion, the money is being unlawfully and improperly withheld because the Clerk does not particularly like the deal for some reason.  He noted his client is paying $180 per day in interest on the loan; there are already renters in the units for the lower rates; if much more time passes, the project will not be able to be afforded anymore; and it will defeat the whole purpose because Mr. Ellis does not particularly think he likes the transaction, but that is not his job.  He stated as for the amendment, he does not think it is necessary, as the contract provides for payment of the funds; but the County Attorney’s office put more detail in the contract for Mr. Ellis so there would be absolutely no question; stated his client does not have an objection to the amendment being added to the contract; and if it takes care of Mr. Ellis’s questions, then that is fine. 

 

Commissioner Anderson stated Mr. Cantwell is correct in that Mr. Ellis does not have the power to withhold money, but the Board does; stated Mr. Ellis notified the Board of some issues; in the original agreement he does not recall the issue with the back taxes; and inquired how that ended up in the agreement.  Scott Knox, County Attorney, replied he does not have the agreement in front of him; he looked at it last week; and he does not remember the back taxes being part of the agreement.  Commissioner Anderson stated some policies in the County need to be drastically changed, because right now, he can go out with his good credit, sign for a building rehabilitation, and not pay a dime, and let the taxpayers take care of his bad decisions; and stated he does not want to be a part of that. 

 

Mr. Cantwell stated the agreement is relatively broad; and his opinion is that if the Clerk is going to get involved by holding back money, it undermines the Board of County Commissioners.  He advised the agreement just says, debt on the property. 

 

Commissioner Anderson stated according to what he found, there was only an electrical permit pulled; how does he verify the work was done; and if there is no permit or inspection he has no verification that any work was done.  Ms. Joiner advised staff conducted a site visit on the property prior to the project going before the Affordable Housing Council and the Commission; when the project came to the Board, the work was already completed; and staff conducted a site to verify that the property had been rehabilitated and that it has been vacant.  Commissioner Anderson inquired if the site visit including the permit.  Ms. Joiner replied the current local housing plan and the administrative code does not require that the County go backwards doing research on completed properties that are completed at the time they apply for the program, not for the purpose of the debt reduction strategy. 

 

Commissioner Anderson inquired if a permit was every obtained for the air conditioning from the City of Melbourne, or is it still pending; and stated he does not want to hear that it is the contractor’s fault, as it is the owners responsibility in the end.  Mr. Cantwell advised the City was involved, as far as the Building Department, for pulling all of the permits necessary; there was an electrical permit; he was told there were some air conditioning units that were stolen that had to be replaced; the City said since there was not a particular permit pulled for those; for a lot of remodel work permits are not needed; but for electrical, permits are needed; and if there are any outstanding permit issues, the remedy   is  simply  to  pay  twice  for  the  permits.   He  noted   his   client   has  already volunteered that if there are any outstanding that the City says it has to pay, he will pay it out of his own funds. 

 

Commissioner Fisher stated he became concerned over the issue yesterday; inquired when the project came before the Board in July, did Mr. Ellis ask the County to do an appraisal; and inquired when Mr. Ellis became concerned with the project.  Mr. Ellis responded he became concerned when he read the contract; stated it needs to be understood that his signature is not a signature of approval, but a counter signature that it is the Chairman’s signature; and stated when he signs off on items, it is not approving anything, but verifying that is it Chairman Bolin’s signature.  He stated when he read the contract he found there were no construction liens on the property; the notice of commencement was done in November 2005; as far as he can determine, the $50,000 is not outstanding; and out of the $525,000 borrowed, there was $170,000 done as construction costs, and $270,000 in interest.

 

Commissioner Fisher stated the project hit his radar screen when he realized the County was paying back taxes; it looks like 2008 taxes was part of the original agreement, making up the $630,000, but not 2009 taxes.  Mr. Cantwell stated the agreement is $630,000; whatever is in it, is in it; as far as the amendment, the purpose is to add detail to it; and 2009 taxes are included as well.  He stated his position was that his client got a written contract for $630,000, which is paying down the debt; but he does not know the answer to the tax issue.  Commissioner Fisher inquired if the 2009 property tax of $15,000 is not actually in the contract; with Mr. Cantwell responding it is not actually in the $630,000 that he knows of.  Commissioner Fisher inquired if the rehabilitation costs did not actually add up to $74,000 as stated in the RFP; and inquired if that is rehabilitation costs.  Mr. Cantwell replied the document he is referencing is the signed agreement in the contract.  Commissioner Fisher stated the RFP is attached to the signed agreement.

 

Attorney Knox advised the attachment to the contract is not referenced in the contract, but it is attached; the agreement provides for payment of the debt, $630,000; the debt on the property was $525,000, plus whatever interest payments and principle payments had not been made; and at the point of closing it was higher than $525,000.  He stated the other property involved was added after the mortgage was originally recorded for $525,000, as additional security; it was one mortgage that covered both properties; and that property, subsequently, has been released by the owner, so now it is only one mortgage for one property.  He stated the contract is what it is; the Board may or may not like the business deal; but there is nothing that can be done about it at this point; and the Board may want to do other things to correct business deals in the future, but for right now, it is just dealing with this contract.  He stated in his view, the $630,000 can be applied to pay down any debt on the property including the mortgage payments; stated Mr. Ellis had a point in pointing out that the $58,000 in construction costs is not covered by the contract, which is why staff asked for an amendment to the contract because although construction costs are allowed under the program under which the money is being issued, they are not in the contract; and the only way to get them into the contract is to amend the contract.  He advised he has subsequently come to learn there is an outstanding note for $105,000, which is also accrued interest of $115,000; theoretically, the  note is  verifiable;  and it  could  also  pay  down  the debt  associated with  the  note because it was used for construction costs.  He stated the remaining issue is taxes; taxes are a debt that is attached to property; a good argument can be made that it is part of the debt that goes along with the property; and the valid issue Mr. Ellis mentioned was the $58,000 in construction costs that is not covered by the contract.  He noted he believes it is part of Mr. Ellis’s job and his staffs job to go through the contracts to make sure something they do not pay something that is not supposed to be paid; he believes Mr. Ellis was within his rights to say what he said; and the way to cure that is to either amend the contract or use that money to pay down the outstanding note.

 

Commissioner Fisher stated he is concerned about the people acquiring the property and what they are paying for it, and if they have any cash invested in it; the Board has to be looking at those deals to see if it is paying too much or buying down too much debt; and he is concerned that with any property the Board buys, it is in compliance at the time of closing with any back payment of taxes or any liens, and the Board should not be absorbing that in its deal for any reason; and it appears the Board is being asked to do that in this case.

 

Assistant County Manager Stockton Whitten, stated he agrees with Commissioner Fisher; those expenses are allowable under the broad definition; as Mr. Cantwell mentioned earlier, the SHIP Program has very broad definition of debt; and so those are allowable expenses, but those are issues staff believes are a matter of policy for the Board.  He stated the Agenda Report reads that there are issues specific to this project, but there are also policy matters that only the Board can direct staff to follow as specific requirements of the Brevard County program.

 

Commissioner Fisher inquired by contract, would the Board pay up to $630,000; with Attorney Knox responding affirmatively.  Commissioner Fisher inquired how much the first mortgage is on the property.  Attorney Knox replied it is $525,000 plus the payments and interest that are outstanding currently.  Commissioner Fisher inquired if the Board is obligated to pay the rehabilitation expenses.  Attorney Knox advised by contract, the Board is not obligated to pay those because the contract states that the Board does not pay for construction costs; there is a note for $105,000 in accrued interest that was used to finance those construction costs; and theoretically, that is part of the debt; but that is not what appeared on the closing statement. 

 

Commissioner Fisher inquired what is the documentation used to verify if the County actually spent $125,000 in rehabilitation costs.  Mr. Cantwell replied $115,000 is outstanding on the note.  Commissioner Fisher inquired if that $115,000 was put into the building.  Kyle Militano, Militano Construction, replied four and a half years ago is when the $115,000 was used to purchase the property; there was a short-term loan from Prime Bank that expired; a private note was obtained for $525,000; but the $100,000, plus $25,000 was strictly to buy the property and part of the construction expenses; and the only reason the $50,000 is on the HUD closing statement is because he was asked to supply whatever construction cost he had, because there was a $50,000 gap at the end of the closing.  He stated the RFP and the contract states the funds can be used for acquisition, which is what the $100,000 was for, plus the note that remains; and so, to answer Commissioner Fisher’s question, it was acquisition costs and rehabilitation.

 

Commissioner Fisher inquired if Mr. Militano put the $125,000 in improvements.  Mr. Militano replied part of that amount was used for purchasing the property; and another part of it was used for construction.  He stated he personally owns a construction company, so he did not hire someone to do the work; stated he has approximately $1 million into the project; and he has a lot more money in the property than he wanted to have in it. 

 

Commissioner Fisher inquired if Mr. Militano paid $680,000 for the property.  Mr. Militano responded he paid $680,000 plus interest, taxes, construction costs, and everything else over the years; and after he purchased it for $680,000, he improved it for $125,000.  Commissioner Fisher inquired if Mr. Militano purchased the property with SHIP in mind; with Mr. Militano responding no.  Commissioner Fisher stated it is not fair for SHIP to pick up those carrying costs over the years.  Mr. Militano stated he is not asking for any of that; his purchase price is more than the SHIP funds alone, let alone all the improvements he did to it; and the actual units are brand new on the inside.  He stated he originally purchased the building to convert the units into condos; everyone knows what happened to the condo market in general; when that did not work out he tried to work out something amicably with low-income housing; and that is what his game plan was. 

 

Commissioner Fisher inquired if the note for $525,000 is what the Board has agreed to pay down.  Attorney Knox replied the Board agreed to pay down any debt on the project.  Commissioner Fisher inquired how many debts are recorded on the property.  Attorney Knox responded there is the $525,000 mortgage; there is another existing note for $100,000; and as of Friday he did not see any recording information that goes with it.  Commissioner Fisher inquired if that $100,000 is recorded on the property; with Mr. Cantwell responding it is not a recorded mortgage, but it is a note.  Mr. Cantwell explained it is a promissory note for the property directed at Riverbend Partners, LLC, who’s only asset is the property; it is not a recorded mortgage note because they did not want to have an encumbrance; but it is an absolute note; and if there are any questions as to the validity of it, those can be resolved.  He stated the issue of construction is the only issue that he thinks there is a bit of a disagreement on with Attorney Knox; the contract provides for payment of construction funds; and stated the first page of the contract deals with acquisition and rehabilitation for new construction.  He stated that contract states SHIP funds are allocated for projects resulting in the acquisition and rehabilitation, or new construction; so it is contemplated in the contract; the language people are getting confused on is on Page Six, Section 10, which is the broad definitions, such as eligible and ineligible use of funds; and he does not think everybody is reading the whole sentence with respect to ineligible use of funds.  He advised the contract reads that funds may not be used for construction or development costs, or any other costs which are not solely for the purpose of reducing the debt on the nine identified units for the project; that is where the construction costs went; and stated he believes the construction costs are contemplated only on this particular property.  He stated when talking about rehabilitation, it does not mean anything other than making the place better; and that would be through construction clean up and things like that.

 

Commissioner Fisher stated the building was already rehabilitated; it was built for a condo association with intent of selling it as condos;  and  then  the market changed.  He inquired if the units were rehabilitated any different than the two-bedroom units already established.  Mr. Cantwell replied Mr. Militano can address that; but Commissioner Fisher is correct in that this is a little different; SHIP funds are to fix up a place to be able to move people in; this was a situation where it started off with a different goal, but work was done beforehand, the condo market fell through; and there was little else to do.

 

Commissioner Infantini stated if the Board is going to be spending $630,000, it is going to save the individual units, unit-by-unit; the regular market rent is $750; and $500 will be charged, which is going to save her $250 per month, which works out to be $3,000 per year per unit, multiplied by nine units.  She stated it looks like the money the Board is spending in today’s current dollars is about the same as the total amount of rent that is going to be saved by the homeowners; and stated her question would be why does the Board not go out and buy buildings and then own them after 25 years.  She stated the only debt she was able to find was the $525,000; when someone does not pay their interest, it is called accrued interest; it turns into a liability, but it is not debt in the concept most people think of as debt; now she is paying for the contractors unpaid bills so he can use the money for whatever purpose; and then going forward, the Board has at least two years of unpaid taxes, which is where the $15,000 comes in.  She stated she is not comfortable paying down all of the contractors unpaid bills so that low-income housing can be provided; and stated low-income housing can be provided if the Board only paid the $525,000.

 

Mr. Ellis stated there is no evidence that there is any construction debt; there is no lien on the property; based on the statement given for the $525,000 construction loan, all the construction costs are paid, so it is not even debt; and stated beyond the fact that the accrual should not be there, debt is the mortgage.  He stated Attorney Knox mentioned there was a private note from 2005; that has never been disclosed to anyone that he knows of; and he does not know that it was disclosed when the application was made; but the private note has not been recorded.

 

Attorney Knox advised it was signed by Mr. Militano to Michael Goodwin.  Mr. Ellis inquired where it sits in the order of the County’s lien.  Attorney Knox replied it is unsecured; it does not sit anywhere; and once the County records its mortgage, it is ahead of everybody.  Mr. Ellis stated if it is unsecured and does not sit anywhere, then why would the County pay on it; with Attorney Knox responding it is a debt.  Attorney Knox stated his only concern is that the contract says it is to be used for reducing debt, paying down debt; it does not say recorded debt or mortgages, it says any debt associated with the project; and he is not sure what that money went to, or for which project; but he is sure Mr. Militano can provide the proof needed to establish that.  Mr. Ellis stated he does not see that the construction is a debt; he does not see that it has not been paid; there is no mechanics lien; there is a notice of commencement that goes back over four years; stated he does not see there is any outstanding construction debt on the property; and it seems like it was just used as a plug number to hit $630,000.  He stated he has one attorney telling him the County Attorney’s Office reviewed every one of his concerns, and that there were no problems; but he has never received a report from anybody during the two week period between the 19^th and the 4^th of the closing date; and he has another attorney telling him that he has received a report from the County Attorney stating there were no problems and that he is abusing his office and withholding payment.  Attorney Knox stated he disagrees with Mr. Cantwell on that issue. 

 

Commissioner Fisher inquired when the note was signed by Mr. Goodwin.  Mr. Militano responded it was September 2005.  Commissioner Fisher inquired when the project was completed; with Mr. Militano responding he does not have a completion date, as he ran out of money as he went along.  Mr. Cantwell advised he has the actual balloon note copy; and stated he has a signed letter from the note holder as of last week as to what the outstanding balance is.  Commissioner Infantini noted that is not disclosed in the title insurance policy.  Mr. Cantwell advised it is not a recorded mortgage, so it would not be picked up; title companies find recorded encumbrances on the property that are recorded; it is an unsecured note; and there is no question the money is for this project and used on this project, and it is debt on this project.

 

Mr. Militano stated if he had put up the $125,000 note, there was no way he would have gotten the $525,000 from the bank; and that is why it was not recorded; but he has a note and a signed agreement. 

 

Commissioner Fisher inquired when Mr. Militano purchased the building.  Mr. Militano advised it was close to the date of the note in September 2005, because that is what part of the money was for acquisition; but he does not remember the exact date.

 

Commissioner Fisher stated from a SHIP standpoint, he wishes the Board had an appraisal on the property; it bothers him that the Board is buying a piece of property that it does not know the value of, because he is not sure that it would still stay the same value with the first note that the Board is getting ready to pay off.

 

Ms. Williams advised, the Board is not purchasing the property; there is two different strategies that the Board has already approved in looking at creating affordable housing; one strategy is acquisition; if the Board were purchasing the property, staff would have appraisals done and the Board would see the value; it is strategy to buy down, as the economy has everybody upside down; and the Board still has to create affordable housing in this type of market, understanding the Board is given latitude so it can buy down those upside down debts that it might not otherwise be able to do.  She noted the County does not have people knocking down the door, even with this strategy, to help create affordable housing, because of the restrictions placed on it; and within the market time, if something is right-side up within five years, the Board would still have a commitment of 25 years. 

 

Commissioner Fisher stated he is all for affordable housing, but he disagrees with Ms. Williams in one sense; with the way SHIP works, he wishes he did not have a conflict of interest because he would go buy and piece of property with 100 percent financing on it and do it on a limited amount, which would be a good deal; he does not feel comfortable about the second note on the property; stated he is comfortable with the $525,00, but he would like to make sure the interest is verified; and he does not feel good about the rehabilitation expense because it was already done before the actual construction before the Board got involved in SHIP.  He stated if the federal government is going to be allowed to help buy down debt, the Board  should at least be in  compliance at the time it is done; paying back taxes does not make sense to him because if dealing with a normal purchaser, the taxes would have to be current; stated he is not comfortable approving the rehab and expenses in the $105,000 note; and inquired if he is still in compliance with the contract.

 

Attorney Knox stated as of the date of closing, the Board is in compliance as far as the $58,000 that was attributed to the construction costs; the contract is clear that it cannot be used for payment of construction costs; it can only be used for paying down debt; and in his view, the $58,000 as the date of closing does not qualify.  He stated the $564,000 is legitimate because that is the first mortgage; any lender that is holding a mortgage in which there has not been a payment and the interest has not been paid, and $564,000 is owed, that is going to consider that a debt; and there will not be a release until it is paid. He stated the back taxes are not part of the contract; it is part of the RFP, which is not incorporated into the contract; it could be argued that it is part of the debt because it does attach to the property, and it does eventually end up with the property being taken away from the owner if it is not paid; and that is an arguable point under the broad definition of debt and the SHIP Program.  He stated where the Board is right now, the $58,000 does not qualify under the contract; and the question is what does the Board want to do about it, if anything.  He noted the Board can amend the contract and incorporate the construction costs into it, because they are permitted to be paid by the SHIP Program; or the Board can make Mr. Cantwell and Mr. Militano come up with evidence that the $100,000 that was borrowed initially to finance the purchase of the property actually went toward the purchase of the property, in which case it would constitute debt, even though it is not recorded debt.

 

Commissioner Infantini stated she believes that by Florida Statute, all debt is required to be recorded in order to pay tangible tax and doc stamps; but it does not exist for the Board’s purposes; and stated she does not think it is the County’s responsibility to pay back taxes on investments.  She stated finally, the Board is paying twice as much as the property is assessed, according to the Property Appraiser; in 2008 the market value was $407,000, but now it is down to $328,000; and she does not want to reward someone for not paying their bills for two years, including taxes.

 

Commissioner Fisher inquired when the $564,000 mortgage is paid off, will it be a clear piece of property; with Mr. Militano responding affirmatively.  Commissioner Fisher stated the Property Appraiser does not really assess property at 100 percent of value; and the $368,000 is probably 85 percent of the value.

 

Commissioner Anderson stated County staff needs to tighten up on issues such as these; it kills him that the Board is using federal money to pay down Brevard County taxes; and staff has direction from the Board on where it wants to go with that.

 

Mr. Whitten stated regardless of the supervision of the Housing and Human Services Department, this is a SHIP issue and the definitions that are broadly defined by SHIP; the one criticism that can be given to staff is that it has not been back to the Board soon enough to have it address those policy issues; but it has nothing to do with an oversight or accountability, or supervision of staff; and these are approved programs under the Board’s affordable housing program that are State defined.  He stated if the Board wants to go beyond those broad definitions then it will have to do that when staff brings those back to it; and staff will try to make all of those issues clear so that there will not be matters of policy when doing these projects in the future.

 

Commissioner Anderson inquired if staff has reviewed the recommendations by Carie Exline of the Clerks Office, in the white paper she submitted.  Mr. Whitten replied he thinks there are definite policy issues the Board is going to have to look at, from the back taxes to if the Board is going to actually pay down debt based on some criteria that it determines; and staffs hope is to bring all of those back to the Board, including everything that is addressed in a white paper. 

 

Chairman Bolin inquired if Mr. Cantwell mentioned there are nine units that are occupied at this time.  Mr. Cantwell stated he believes there are a couple units that are open.  Mr. Militano advised the units are approximately seven percent occupied; when the contract was signed, he asked if he could go ahead and rent the units, and he was told that he could; but when any issues came up he stopped renting; and there are six out of nine units rented currently.

 

Chairman Bolin inquired how much in rent is being charged to the six units; with Mr. Militano responding $540 per month.  Chairman Bolin inquired if clients are being sent to the facility from a list, and what method was used to get the six renters.  Ms. Williams replied staff does not have a list and it does not direct people to facilities; if someone calls asking about affordable housing, staff lets them know what it has been working with and if there was any availability.  Chairman Bolin inquired if the renters have to prove they are in the income range for the rent; with Ms. Williams responding yes, they have to go through eligibility determination.  Ms. Williams stated when staff goes out to monitor they verify and re-determine that those eligibilities are correct. 

 

Commissioner Nelson stated certainly the Board and staff need to tighten up and create a subset of policies related to SHIP; but he does not want to throw the payment of taxes out the window, because he can foresee a circumstance where someone coming in up front is aware that there are back taxes owed on a property and they are willing to take the risk of trying to improve a property; and that may be the difference between making it work or not making it work; but the key is that the Board needs to know that up front. 

 

Mr. Cantwell stated more than one Commissioner raised valid issues with respect to dealing with the SHIP Program in the future and how Brevard County wants to deal with it, and what measures it wants to put in place while still maintaining eligibility for it; but this contract was approved for $630,000 and it includes what it includes; and stated Riverbend has certainly fulfilled the obligations they were required to do. 

 

Commissioner Fisher stated the actual contract fronts up to $630,000; there is not really a dollar limit approved; and stated the way he understood it is that the Board would not exceed the $630,000 allowance.  Mr. Cantwell advised the contract states it shall not exceed the awarded SHIP Program funds in the amount of $630,000.

 

Commissioner Infantini stated she would like to see the process changed; and she thinks the Board should be able to limit its losses and go with the $525,000.  Attorney Knox advised the contract reads that the funds may be used solely for the purpose of reducing the debt on nine units, making them affordable to tenants who are at or below 50 percent AMI; the mortgage is an easy call in terms of whether it has debt on the nine units; the $100,000 might be treated the same way; but he has not seen the evidence yet, just the note; and that is something the Board may be looking at in the future. 

 

Commissioner Fisher stated he is hoping it does not turn into a legal matter; he disagrees with Commissioner Infantini on limiting it to $525,000; his concern is that there was not $50,000 in rehabilitation expenses because the units were already rehabilitated at the time they put them in; and all indications to him is that the units were already rehabilitated, and the developer was trying to sell them. 

 

Mr. Ellis stated there are two tax certificates that have been sold on the property; they are held by the person who has the note; and he wants to reemphasize again that the $525,000 note is a construction loan for the rehabilitation.  He stated he does not understand how there would be any outstanding expenses left when the rehab itself was only $170,000; and stated $500,000 worth of rehabilitation cannot be done without pulling a permit. 

 

Mr. Militano stated the $525,000 was not a construction loan at all; originally, he obtained a loan through Prime Bank for two years; it was refinanced strictly to pay off the other Prime Bank because it was only a fixed two-year loan. 

 

Mr. Ellis stated he read the mortgage and it is a construction loan mortgage for the purpose of financing the construction of improvements upon the property.  Mr. Militano stated it was a loan for refinancing only; he was not given $500,000; and he did not put $500,000 worth of construction into the property. 

 

Commissioner Infantini stated the documents show that it is a construction loan mortgage; and she does not know what Mr. Militano used the funds for, but that is what he said he was going to use it for.

 

Mr. Militano stated he is a General Contractor; every loan his customer’s get are construction loans; a bank may use the wording that it is for construction; but he did have some funds set for construction and some purchasing; and that is why he had to get a separate $100,000 note to pay for those expenses. 

 

Attorney Knox stated when he was in private practice representing people like Mr. Militano, they would obtain construction loans from a bank; it would be a short-term loan until the project was finished; and once the project was finished, they would have to pay back the construction loan.  He stated the way people paid back the loan was by taking out a loan from another bank, which would either pay them off, or pay off the prior bank, or the original bank would extend its loan as a first mortgage; and it is not unusual to see Prime Bank writing a loan for a construction project and then have a private party pay off the bank to eliminate the bank’s mortgage.    

 

Commissioner Fisher stated he assumes when the Board settles this, it is not going to get into legal ramifications with Mr. Militano; stated he is thinking the Board should go ahead and pay off the recorded first mortgage and the interest accrued after that point; and he would also like to give the applicant 2009 taxes, which he assumes is approximately $8,000.  He stated unfortunately, there are no other notes or anything recorded on the property, so he does not feel like the federal government could pay for something that is not recorded; he does not believe Mr. Militano had the rehab expenses because he believes it was done prior to that; the contract allows the Board to pay up to $630,000; but he would approve $570,000 if it is something Mr. Militano is comfortable with.

 

Commissioner Anderson stated he will not vote for that motion; he cannot face the taxpayers of Brevard County in good faith when there are red flags all over the deal; and $524,000 is the most he would feel comfortable with.  Chairman Bolin stated she feels the 2009 taxes are a fair thing to cover.  Commissioner Anderson stated that is true, but he is going back and correcting a mistake he made by not paying enough attention to the first time it came to the Board; he is not happy with the whole thing, but $524,000 is a concession on her part; and he will not approve anything over that.

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to approve Contract Amendment with Riverbend Pineapple Partners, LLC for preservation of affordable rental housing for low-income families, with the buy-down of debt including the mortgage at $564,238.87 and the property taxes for the tax year of 2009.  Motion carried and ordered; Commissioners Anderson and Infantini voted nay.

 

 

 

 

ATTEST:                                                                    

 

                                                                        _____________________________

                                                                        MARY BOLIN, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)