October 24, 2006 Special
Oct 24 2006
MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
October 24, 2006
The Board of County Commissioners of Brevard County, Florida, met in special session on October 24, 2006 at 5:32 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Helen Voltz, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Peggy Busacca, and Assistant County Attorney Christine Lepore.
The Invocation was given by Chair Voltz, District 3.
Commissioner Carlson led the assembly in the Pledge of Allegiance.
REPORT, RE: CLOSING DOCUMENTS FOR FORTENBERRY WASTEWATER SITE
Assistant County Attorney Christine Lepore stated the County has a piece of property under contract with a closing soon; some documents were received today for the closing; and she needs the Board to authorize the County Attorney’s Office to execute the closing documents on the Board’s behalf. She advised the language is standard; the buyer wants to do a like-kind exchange under the IRS Code; they need to use the bank as an intermediary, so documents need to be executed recognizing the bank’s role as an intermediary; and it also requires the County to waive any liability against the bank. She noted it is fairly standard; and it requires Board authorization because of the wavier of liability.
Chair Voltz inquired where is the property; with Ms. Lepore responding the property the County is selling is from the Fortenberry Wastewater Site; the County bid it out and it is under Contract to sell; the buyer has another piece of property he is selling; one uses an intermediary when buying and selling properties contemporaneously; and one can get a tax savings and only be taxed on the difference of the sale.
Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the County Attorney’s Office to execute the closing documents on behalf of the Board regarding the Fortenberry Wastewater Site. Motion carried and ordered unanimously.
REPORT, RE: SIGN POSTINGS
Commissioner Scarborough advised he is sure everyone has seen the signs posted to trees and telephone poles throughout the County for US Postal jobs and other things; the USPS does not advertise for its positions; it is a business gimmick; and when someone makes a phone call, they are charged for information that is otherwise free. He stated the proliferation of the signs stuck in the ground or on poles is not only unsightly, it is prohibited by Ordinance; and he would appreciate it if County Manager Peggy Busacca would direct Code Enforcement and other staff members who drive around Brevard County to remove the signs when they see them.
REPORT, RE: EDUCATIONAL MATERIAL FOR PARKS AND RECREATION
REFERENDUMS____________________________________________________________
Commissioner Carlson inquired if County Manager Peggy Busacca could inform the Board of what is being done in terms of educational material that is put out for the Parks and Recreation Referendums; she knows there is something on the website, but she would like to make sure people at home are aware of it and that it is being distributed throughout the Commission districts and to anyone else the Board is in contact with.
County Manager Peggy Busacca stated the County has taken several steps as far as providing educational information about the Parks and Recreation Referendum; the County has provided some information online that people can look at; there are questions and answers, along with language on the referendum itself; and that is available at www.brevardparks.com. She stated in addition to that, people who are requesting information via email can have that information provided to them; staff has also provided language for people who want written information; and that information has been provided to groups who have requested it, so that they can inform their members as to what the Parks and Recreation Referendum is about.
Chair Voltz inquired if the Board has a list of options as to what will happen if the referendum fails; with Ms. Busacca responding the Board will have to make some difficult choices and identify which projects it will want to put on the back burner and which projects it will want to move forward. She stated staff can tell the Board how far along projects are and how much money is estimated to be needed; and what the Board has not done is prioritize those which will be done sooner and which will be done later.
Chair Voltz stated in looking at the projects in general, there were many projects added to the list once the referendum was complete; there was a gentleman speaking to the Board about the ball fields that were not on the referendum; she would like to see what projects are progressing at any stage, to see whether or not they were on the referendum; and she would like to identify the projects that were specifically on the referendum and how the Board would fund those particular projects.
Ms. Busacca inquired if the Board would like staff to provide that information to it individually; with Chair Voltz responding a status report would be fine; and she wants to make sure there is nothing that slips through the cracks that is added on after the referendum. Ms. Busacca stated she would be happy to provide a status report to the Board.
REPORT, RE: PERMISSION TO ADVERTISE
Chair Voltz stated she would like to ask permission to advertise a public hearing for the Barefoot Bay Water and Sewer District for November 14, 2006; Barefoot Bay purchased Snug Harbor; the people in Snug Harbor are now going to be charged an impact fee of $1,600; and they are being charged because the bond language says there shall be no free services. She advised County Attorney Scott Knox looked at the bond language, called the bond council, and determined Snug Harbor does not have to be charged the $1,600; and she would like for it to come back at the November 14, 2006 meeting to be discussed and potentially do away with that impact fee.
REPORT, RE: SPAM EMAIL
Chair Voltz stated recently she has been getting a lot of spam emails; it is much more than in the past; it seems like since the new system started there is a lot more spam email; and she has been forwarding the emails to Marion Haines so he can put them on the spam list, but there have been so many of them, she does not have time to do that. She noted the County should have a more secure email system or some other software.
REPORT, RE: DUST AT SEBASTIAN BEACH TENNIS CLUB
Chair Voltz stated she would like to address the dust at Sebastian Beach Tennis Club, north of Barefoot Bay; the people of Barefoot Bay and Snug Harbor should not be subjected to this kind of dust from the development; they are not watering like they should be watering; and something has to be done legally in order to stop it from happening, because it is going to be a while before the property is developed. She advised it was seeded a long time ago, but big trucks are driving on it, and stirring up the dirt; she is getting a lot of phone calls in her office and it is not right that the residents have to be subjected to it; their windowsills have dirt in them and they are breathing it in; and there are a lot of elderly people there who are on oxygen. She inquired what can be done legally in order to make something happen so the residents are not subjected to dust for another two yeas while the property is being developed.
Assistant County Attorney Christine Lepore advised she will look into the matter and report back to the Board.
Chair Voltz stated she understands there is a stormwater ordinance coming before the Board that may address this issue.
Natural Resources Director Ernie Brown stated the Stormwater Ordinance will bring a lot of tools to the table that will assist staff in minimizing, if not preventing, both wind-born and water-born soil erosion; and it will be several months before it is actually implemented.
Chair Voltz stated what needs to be looked at is what the Board can do after the fact; with Ms. Lepore responding affirmatively.
PUBLIC HEARING, RE: LANDSCAPING, LAND CLEARING, AND TREE PROTECTION
ORDINANCE ______________________________________________________________
Chair Voltz called for the public hearing to consider Landscaping, Land Clearing, and Tree Protection Ordinance.
Natural Resources Director Ernie Brown advised this is the second hearing to address the Landscape, Land Clearing, and Tree Protection Ordinance; it has been a very long process; in March 2004 the Board directed staff to proceed with legislative intent to change several key areas in the existing Ordinances; that process went on for about a year; and the decision was made that no significant progress is being made through that process. He stated a Task Force was developed with a diverse group of interest and stakeholders to try to form a draft document to present to the Board for review; on August 29th the document was presented at the first public hearing; and today is the second public hearing. Mr. Brown advised the Task Force did an
extraordinary job; the objective was to develop a consensus document that could be presented to the Board; the Task Force accomplished that; and while it is not a perfect document, it provides a number of benefits the current Ordinance does not provide, such as a relief valve for mitigation, clarity in the agricultural exemption process, and greater flexibility in the canopy tree protection criteria and the mechanisms to deal with that. He noted those were the key issues the Board identified as significant impediments in the existing Ordinance; and where they are today has taken two years of workshops, public meetings, and the Task Force process. He stated he would like to tell the Board this is the silver bullet that will solve all of the woes; he can assure the Board it is not; he believes and supports the sentiment of the Task Force that it is a better document than what they are currently operating under; and it will provide significant relief from what they currently have. He stated during the last public hearing there was a consensus that this will need to be tweaked throughout its implementation; as it moves through the process, it will have to be revisited with regularity as things are identified that create impediments; staff does not want something approved with the expectation that it is going to solve all of the problems and expect to walk away; and they need to be vigilant. He stated his staff has looked through the ordinance and identified areas that may be problematic; and staff is looking forward to addressing those. He noted as a whole, the Task Force did an extraordinary job in coming up with a consensus document that satisfies the vast majority of the concerns of the Board; and staff understands it needs to actively and aggressively address any concerns that come up in the future.
Mr. Brown stated what he has provided to the Board today, in addition to the actual proposed ordinance, which has not changed since the first hearing, is an associated resolution for mitigation; Exhibit 3 is an action list of some of the items that organizations such as BCAC, LPA, and the Task Force, have requested the Board’s consideration on; page one, in particular, is where the BCAC, LPA, and the Task Force have brought forth some issues for the Board to consider; and page two are administrative and staff public comment issues, some of which were brought forward by individual Commissioners to be discussed at this meeting.
Commissioner Pritchard stated he would like to hear from the public. He inquired if the additional actions were unanimously approved by the Task Force; with Mr. Brown responding he does not recall how the recommendations were set forth; in the original documentation, the Task Force said the additional actions are something it believes unanimously the Board needs to look at, such as linear projects, agricultural rollback issues, and trust fund usage option; and it is a bit of a mix, but he can get the numbers for the Board. Commissioner Pritchard stated he did not want to spend the evening rewriting the effort; if these things can mesh without any gnashing of teeth, then he does not have a problem moving forward; and he does not want to be in a position of tearing apart all that was done because there is another submittal.
Chair Voltz advised the Board will hear public comments and then discuss the items.
Sean Gallagher stated he is the Florida Division of Forestry’s Senior Forester for Seminole and Brevard Counties; the Division generally supports ordinances that are designed to protect tree canopy and cover; the Division’s concern is there is a reference to its Champion Tree Program and the Big Tree List in the ordinance; those programs were never intended to be regulatory or cited in this sort of ordinance; the program is voluntary; and it is administered by one person in the State office; and also through field foresters like himself. He stated in Brevard County there is only one current Champion Tree; and in the four-county Orlando District, which is Orange,
Seminole, Osceola, and Brevard Counties, there are only four Champion Trees. Mr. Gallagher advised the Division would like to see a strike to the references to the Big Tree List, the Champion Tree Program, and also the term “Specimen Tree.” He noted the proposed ordinance has definitions of Specimen Tree and Heritage Tree; if possible, what the Division would like is to replace the definition of Heritage Tree with the definition of the Specimen Tree; and he thinks that will accomplish the same goal. He stated the reason for wanting the change is that the program is voluntary; the Division has strived to protect private property rights when it comes to the program; the danger is that if the program were codified in such a fashion, participation may fall; people statewide may begin to see the program as being a quasi-regulatory program; and modifying the proposed ordinance in this fashion may prevent people from doing proper maintenance to their trees that are considered Champion Trees. He noted the Florida Division of Forestry is not a regulatory agency; and it would rather its programs are not used as such. He stated as the County Forester, he would like to be included in any other task forces in a technical capacity.
Chair Voltz inquired if Mr. Gallagher was involved in the proposed ordinance; with Mr. Gallagher responding no. Chair Voltz inquired how Mr. Gallagher found out the Board would be discussing it today; with Mr. Gallagher responding a citizen contacted the Tallahassee office and informed him yesterday. Mr. Gallagher advised Brevard County has not had a forester for 12 years; and he represents two counties that were combined into one.
Commissioner Carlson inquired if Mr. Gallagher has the authority to speak for the Division of Forestry; with Mr. Gallagher responding he has been given the authority to speak as far as the Champion Tree Program is concerned. Commissioner Carlson stated the Division of Forestry does not want reference to the Champion Tree.
Mr. Brown stated there is one Champion Tree in the County; and the County would like to keep it. He stated they are significant species that should have a degree of attention that is higher than the average tree. Commission Carlson inquired if the Board footnoted the reference to those trees, could it still be used; and advised they are worthy books to reference for the reasoning behind what the Task Force wanted.
Mr. Brown stated Natural Resources is not making the program regulatory; it is using it as a reference document to a type of tree or a particular size of tree or specimen; and it is using it by reference as a mechanism to understand the issue. He stated the County is not making the program regulatory, it is just used as a reference. He noted he understands the Florida Division of Forestry’s concern with that regard because it is a non-regulatory support entity; it does not want to be intertwined with a regulatory component in that regard; and he can appreciate that. He stated classifying the tree and maintaining the tree is the volunteer program; and the ordinance states if there are trees of this type, then they have a higher degree of protection in the ordinance.
Chair Voltz inquired if there is alternate language that can be put in the ordinance; with Mr. Gallagher responding he does not have anything at this time, as he was informed of the issue yesterday; and was instructed to come down and make sure the Board understood what the Champion Tree Program is and the Division of Forestry’s reasons for not wanting it to be referenced. He stated it all sounds fine to him, but it is people in Tallahassee who told him to be here.
Chair Voltz suggested Mr. Gallagher and Mr. Brown have a meeting to discuss the issue.
Walter Pine stated he is the citizen who contacted the Division of Forestry; the proposed ordinance is as bad or worse as the SEAS Ordinance. He stated if a tree is listed, fines can be levied on the basis of the designation of the tree; there are problems with the proposed ordinance; he was not aware of the previous meeting; he was told that some of the documents, such as Appendix C, had been peer reviewed; and he was told it was peer reviewed by IFIS and the Division of Nursery Growers. He noted he spoke to Sally Scalera and Jim Fletcher from IFIS, as well as numerous people at the University; and the ordinance was not peer reviewed by IFIS. He stated he also spoke to the Florida Nursery Growers and Landscape Association and it was not peer reviewed by them either; and that representation is false. He stated the Heritage Tree definition is on page 4; it means any tree that is listed by the American Forest Association; there is no American Forest Association; it never existed; nor did any tree that was listed on the Big Tree List; and as the Division of Forestry just told the Board, there is a Champion Tree List, but not a Big Tree List. He stated the proposed ordinance references the Florida Department of Forestry; Florida does not have a Department of Forestry; and it never has. He noted Florida has a Department of Agriculture, under which it has a Division of Forestry; that is a significant difference; a Department has a right to set policy by law; and a Division does not. He stated there is no scientific or factual basis for the definition of Heritage Tree; the term Greenbelt, as presented throughout the document, does not exist in Florida Statutes; Greenbelt as a singular word does exist, but it does not apply in the same manner and does not mean the same thing; and it basically means a walkway around the cities. He stated the ordinance takes away property rights and it should not be approved; and as it stands, it needs to go back to the drawing board.
Commissioner Colon requested Mr. Brown reiterate the Task Force and the folks who sat on the Task Force; and stated the Board was conscious in making sure that people such as environmentalists, realtors, developers, and others were part of the discussions. Mr. Brown stated the list of Task Force members includes the Homebuilders Association, all of the District Offices, the Garden Club, American Society of Civil Engineers, the Cattlemen’s Association, Florida Farm Bureau, Florida Native Plan Society, Florida Nurturer and Growers Association, Florida Forestry Association, and the Brevard Nature Alliance. He stated the representatives were appointed by their particular organization to represent the organization in this process; in addition to that, each District Office represented its interests by appointing somebody at large; and there were widespread interests at the table, both from development, the Farm Bureau, and the Forestry Association, which are strong proponents of property rights. Commissioner Colon inquired how many meetings were held altogether by the Task Force since being approved by the Board in February of last year; with Mr. Brown responding the first meeting was held on March 23, 2005 and the meetings were held through March 2, 2006, which would have made a total of 21 meetings.
Commissioner Pritchard inquired if Appendix C was or was not peer reviewed; with Mr. Brown responding he and Mr. Pine had a discussion about peer review and whether or not it is referred to peer reviewed in scientific journal, or reviewed by peers, which was the question at hand. He stated the Nursery Growers Association, as represented by Mr. Gallagher, is a peer to that industry as a professional peer; Sally Scalera is a professional peer of the industry associated with horticulture; there was some discussion as to whether or not it was scientifically peer reviewed; and the answer is no. Mr. Brown noted it was never intended to do so because this is not a scientific study; it is dealing with compatibility for regulatory application and consistency with the entities there. He stated peers did review it, but it was not scientifically peer reviewed; there was a diverse group of professionals, implementers, and practitioners at the table for the Task Force; and then input was solicited from various groups outside of that.
Commissioner Pritchard inquired if the American Forest Association exists; with Mr. Brown responding it used to. Mr. Brown read an excerpt from the Big Tree book, “It has long been recognized that big trees are of exceptional interest to several people. Since 1941, the American Forestry Association (now American Forest), Washington D.C., has retained records and published listings of trees that were the largest in the United States.” Mr. Brown noted in the document it is recognized that the organization used to be called the American Forestry Association, but is now called American Forest; and it is not uncommon for the group to be called the American Forestry Association, but it is, in fact, called the American Forest. Commissioner Pritchard stated the verbiage states Forest, and not Forestry; with Mr. Brown responding it can be rectified. Commissioner Pritchard inquired what about the Florida Department of Agriculture, Division of Forestry as the language states Florida Department of Forestry; with Mr. Brown responding he will correct that also.
Thelma Roper stated she polled some of the Task Force members; and their comments to her were that they were given a document, were told how it was going to go, and were told they had to have a unanimous vote to change anything. She stated her concern is that the issue started out with three ordinances; the general consensus from the public meetings was to leave it alone; and citizens were told their comments from the meetings were in the trash can. She stated that seems wrong to the citizens; Natural Resources did not listen to the citizens; and then it created a task force. She stated the citizen input did not count; and citizen input only counts when it comes to the ballot boxes. She stated another issue she has is with the consulting of Code Enforcement; there is already someone in Code Enforcement from Natural Resources; right now, they are not doing any good; they go out with Code Enforcement and they do not know what they are looking at to be able to tell if there is a native plant there or an endangered species; and Code Enforcement is saying to cut it down because it is overgrowth.
Franck Kaiser, representing the Home Builders and Contractors’ Association, stated he would like to commend the Task Force for doing an extraordinary job under Mr. Brown’s leadership; this has been a Herculean task; nothing is perfect, but it is a huge step in the right direction; and it is something that is needed. He stated the existing Ordinances, with all of the conflicting definitions, were difficult to work with; this proposed ordinance is more of a common sense approach; and it is easier to understand and a lot less conflicting than what currently exists. He stated he would like to view the proposed ordinance as a first step; it is not a perfect document; it needs more work as there are some areas that need more time; and he feels it needs to move forward because it will benefit all the citizens in Brevard County. He thanked Mr. Brown for doing a great job on the proposed ordinance; stated he is impressed with the work that has been done; there was a diverse group in the Task Force; and to reach consensus with that many people from all different aspects of the community is challenging. He noted he would like to make this the first step and be able to come back and review it on a regular basis.
Brad Smith, representing the American Society of Landscape Architects, stated he was on the Task Force; and he has practiced under many Ordinances throughout the State, and has been observing and participating in Brevard County for over 20 years. He stated it has been an enlightening process to participate with the myriad viewpoints and diverse areas of expertise that were on the Task Force; and to reach consensus was a major accomplishment. He noted the Task Force did an economic reality check; they wanted to make sure it made sense in the real world and it is not just paper planning; following the path of least resistance leads to the desired result; and that is where the incentives work. He stated there was a sub-group that took several plans of real projects and did the math economically under the old Ordinance and the new ordinance; the outcomes were in the right direction; and they were pleased with that. He stated his opinion is the key to proper implementation is going to be starting with a site assessment; it is not site cosmetology on the landscape end, but it is site planning and site design in an enlightened fashion; and that is where the developer needs to understand what the options are with tree preservation versus replanting. He noted he likes the fact there is a lot of flexibility in the ordinance rather than a carte blanch 25-percent canopy preservation; and it gives more flexibility in how to develop a piece of property in a way that makes sense. He commented on the high level of staff expertise; stated he is pleased to work with the staff, not only in his private practice, but also on the Task Force as well; Mr. Brown has exerted great leadership; staff has done a lot of research; and this has not been a staff-directed effort, as it has been a Task Force-directed effort. He stated he would urge the Board to approve the ordinance and also that it continue to pursue avenues of further integration; there were things outside of the charter and scope as a task force, such as integrating with stormwater regulations, with zoning, and others; and he is proud of the document and is glad for the opportunity to have worked on it.
Commissioner Scarborough stated one parameter is that the County wants to have native species; another parameter is that the County does not want to have more than 50 percent of one species; the idea is that the County would like to have more diversity; and one comment was that everybody plants the same thing and it becomes convenient. He noted there can be one plant material that works in Brevard County, so there begins to be the same palate; and he is referring to the non-native species. He inquired is there any way to create a format to create more diversity; and if builders had more materials available from nurserymen and nurserymen were willing to vouch the plants would survive, then would the County have this sameness. He inquired why every house in Brevard County should essentially look the same with its landscaping. He noted that may not be able to be incorporated today, but it is a challenge for everyone that if there is going to be a latitude as individuals, somehow there can only be used what is available in the palate; and inquired how to increase the palate.
Mr. Smith stated if the objective is to accomplish canopy, Live Oak is going to do that. Commissioner Scarborough stated he is talking about the general basis; there is the native issue with 50 percent; one species can come into disease and all of the trees are lost; beyond that, to move to a greater diversity for a greater flexibility in the plant palates that can be planted, it may be beyond the nurserymen to understand there are builders who would like to demonstrate different facets of plant materials. He stated there are still some people in the community who would like to see it encouraged.
Mr. Brown stated staff wants to give people examples of greater plant palates to get away from that; the nursery growers are doing a lot to develop new cultivars; and they are making those known to designers. He stated the industry is moving in the right direction.
Commissioner Scarborough stated there are many species of palm trees that can grow in Brevard County; if you go to a nursery, there are probably less than 20 varieties available for purchase; and he does not know if the wholesale community even has that many.
Commissioner Carlson stated the East Central Regional Planning Council has been going through numerous DRI’s recently; some of the provisions developers are willingly putting into recommendation form to the RPC are things dealing with the St. Johns Water Wise Florida Landscapes, which look at the seven principles of Xeriscaping; and inquired if Mr. Brown looked into that; with Mr. Brown responding yes, he did. Commissioner Carlson stated in the ordinance are some incentives that come from that avenue; she is impressed with things that have come through the RPC on the large developments; and one is The Hills of Mineola in Seminole County, in which no St. Augustine grass is used.
Vaughn Holeman thanked the Board for the opportunity of working on the Task Force and representing Brevard County; and stated he is a long time resident of Brevard County and a professional architect. He noted architects are often faced with a balancing act when it comes to master design of sites; working with landscape architects and civil engineers. He stated it is his opinion that the previous Landscape Ordinance did not work; and the proposed ordinance is a great move towards something that does work if it can be tempered by Mr. Brown and his staff with common sense. He stated there are going to be times when a tree is in the way; there will be times when other ordinances will have to rule over this landscape ordinance; and that is where the professional staff will be empowered to make those judgments. He noted it is clear the ordinance was not developed by a rubber stamp; and there were strong words and conflicts at times because of special interests; but the outcome was a workable document. He stated he is asking the Board to please move forward with it, acknowledge it is a work in progress, and not let semantics or wrong punctuation be an impediment.
Lillian Banks stated she is not here to appease or to give anybody accolades; this ordinance should not be passed; the County is inserting itself into all aspects of the citizens lives; and it has to cease somewhere. She stated the regulations that govern how developers have to develop properties are the only thing the Board should be concerned with; for years, the Board has tried to stuff its environmental socialistic regulations down the throats of citizens; and the citizens have had enough. She stated the majority of the members on the Task Force will realize financial gain if the ordinance is passed; that is wrong; new businesses spring up; and existing businesses get a new stream of revenue every time a new environmental regulation is created. She stated new business is not particularly beneficial to the community, but it does serve to enrich the coffers of a select few; it is getting old to hear the refrains such as saving it for the children; what is really happening is that the Board is catering to a small vocal segment of society; and it is time for the Board to consider all citizens. She inquired what is the cost to the citizens who have lived here for years and thought they were in charge of their homestead, and why is the Board constantly trying to interfere and manage the lives of the citizens. She noted the many costly hours spent on this ordinance is ridiculous; there must be more profitable ways for the Board to spend its time; citizens have to worry about hurricanes, terrorists, and other things; and that is where the Board’s effort should be. Ms. Banks listed several problems the proposed ordinance raises, such as it is too long, it should be an aid to developers and not punitive, it violates property rights, it is made for landscape architects and nursery professionals, and property values and costs will increase. Ms. Banks noted she lives in a clear-cut subdivision; there are trees and shrubbery planted by the residents; and it was done without the direction of the Board. She noted citizens can go to jail for putting in the wrong bush or cutting the wrong tree; and commented on the wildlife being a nuisance in her neighborhood.
Dolores Kane stated she understands there needs to be a new landscape ordinance to replace the old one; she does not know if the new ordinance costs more than the old one; people have to be paid to implement the ordinance; and she believes in keeping government regulations simple and as small as possible. She noted she read that 20 percent of the cost of a home is because of government regulations; that is $40,000 on a $200,000 home; and she thinks it should be as easy and simple as possible. She stated the ordinance should exclude buildings, driveways, septic tanks, drainfields, and swimming pools; inquired how many people can plant a tree where there is a building; and advised it seems to her that to plant a tree, it should be in a plantable area, not a buildable area. She stated she is concerned about a specimen tree; and it seems to her if you cannot cut a tree down on your private property, a person should be compensated. She inquired why one would have to pay for a permit to have his or her property surveyed; and if a permit is required, one should not have to pay for it. She commented on the minimum of five trees on a lot; and stated it is too much of a government regulation.
Dick Thompson stated he is a part-time engineer; he appreciated the opportunity to work on the Task Force; he missed several of the meetings due to health problems; and he reviewed the minutes of the meetings he missed and was able to keep up with the Task Force. He stated eight to ten years ago he worked on a revision to the Ordinance; a lot of the revisions that were in the Ordinance then, are in the proposed ordinance now; one of the philosophies eight or ten years ago was that they should be trying to help the public instead of condemning them by putting them in jail or fining them; and the thrust of the ordinance should be one that gives direction and help to a person who wants to do something with his or her yard. He noted on Merritt Island, the subdivisions that were clear-cut 40 years ago have many trees, bushes, and flowers; people have done a good job of landscaping their yards the way they want them; and he believes some of that philosophy is missing right now. He stated he hopes the ordinance will be reduced in volume; there is no reason to have 77 pages; and he can guarantee the public is not going to read it.
Tom Schuller stated he was Brevard County’s Farm Bureau representative on the Task Force; and it was an enlightening experience. He noted there have been some comments about the public being involved; all of their meetings were open to the public; only one or two citizens took the time to attend the meetings; and the public comment sections at the end of the meetings were not taken advantage of. He stated the ordinance is not perfect; it is a workable ordinance everyone can work with as a starting point; and he would urge the Board to pass it.
Glenn Storch stated he is an attorney in Volusia County, representing Miami Corp.; he helped draft the Tree Protection Ordinance in Volusia County 12 years ago; and it has been interesting to watch the experience in Brevard County. He stated the proposed ordinance is thoughtful and complete; it is far beyond what Orange County has; the intent of the ordinance is clearly to create more types of trees; and that is to be commended. He stated it is obvious the ordinance was created by experts who knew what they were talking about; the Board may want to look at a workshop for landscape professionals, development professionals, and nursery professionals so they can know what the ordinance is and help gather their consensus in making sure the ordinance is applied correctly; it has been his experience that if everyone is not on board, there will be violations; and that creates animosity towards the proposed ordinance. Mr. Storch stated there is a provision for a survey permit requirement; the Board should look at that; as a general rule, surveyors are protected by Florida Statutes; and they can actually trespass on land to do a survey. He stated on the whole, the Task Force did an extraordinary job in bringing people together and it is something the Board can be proud of.
Matthew West stated he is here on behalf of a client; he worked for the City of Lake Mary for 11 years; and he had the privilege of enforcing their Arbor Ordinance. He stated he would recommend the Board build into the ordinance that within two years the Board reconvene the Task Force and examine the results of the first two years of enforcement to see if there is anything that needs to be tweaked. He noted the Board may find that in the first two years all of the bugs are going to come back; and the Board may want to call the Task Force back together again. He advised he does a lot of work with due diligence, which is far before engineers are involved in laying out developments; it is interesting that the Board would require a permit from surveying crews who are trying to provide the information by which the Board would make development decisions; and he would recommend the Board look at that again and consider deleting it. He stated most survey crews on a site do not want to have to cut down trees; they would like as little manual labor as possible because they have a job to do; and that requirement for a permit would probably delay a lot of folks.
Bo Bar-Navon stated he served on the Task Force representing the HBCA; the proposed ordinance is actually a reduction of the past ordinances; and it is less regulation. He stated the proposed ordinance is something that provides for the intent of the preservation of the landscaping and for more flexibility to the development community; it also does not affect single-family lots of under one and a quarter-acre; those are exempt from the ordinance for the canopy and preservation portion; a lot of the discussion regarding the surveying permits is not accurate; the permit is only if one wants to clear trees; and the permit is not needed if trees are not being cleared. He stated generally speaking, to reach consensus with the Task Force was very time consuming and difficult; it is a good ordinance, easy to understand, and easy to enforce; and it is something the Board must pass forward. He noted the nine recommendations the Task Force gave the Board are important because a lot of the meat of this ordinance depends on some of the other recommendations, which unfortunately were outside of the purview of the Task Force.
The meeting recessed at 6:55 p.m. and reconvened at 7:04 p.m.
Commissioner Pritchard inquired why a permit is needed for a survey, regardless of the purpose of it; with Mr. Brown responding it is a relic from the old Ordinance that was tweaked; and there was a survey permit requirement from the old document.
County Manager Peggy Busacca stated when people call when there has been any kind of land clearing activity, they assume the worst; if there is something on record, then staff can tell people what is going on; there are people who do surveys with very narrow lines; there are
other people who felt it was an opportunity to survey extensively on a piece of property to the point it was difficult to tell where the land clearing stopped and the surveying began; and so there were people who did not understand that a survey can be a certain width. Ms. Busacca stated it is a quick and easy permit to obtain.
Commissioner Pritchard inquired what if the property is an old orange grove; with Ms. Busacca responding with the kind of wind-blown erosion that the County has seen can happen regardless of the type of vegetation that has been removed; there are people who have to live beside property that sometimes is cleared in excess; and then staff has questions about what it can do about that. She stated these things came about because at that time, there had been a history of abuse; and there were not clear specifications and some kind of notification required.
Commissioner Pritchard stated to him, a survey is when a lot line is identified; he is not making the connection between identifying trees and removing trees; and inquired how does that become part of the surveying process; with Ms. Busacca stating staff did not think it was either; someone said to staff that there are no specific requirements or permits required; and if the specifications are not clear, people sometimes see things differently than intended. She stated it was put in the proposed ordinance not for the people who are truly doing the minimal survey, but for those people who took advantage of the situation. Commissioner Pritchard inquired is there such a thing as a land clearing survey; with Mr. Brown responding no, not in this particular ordinance; it is an expeditious process; people are getting the permits now under the existing Ordinance; and they can do what they need to do to get the job done. Commissioner Pritchard inquired if there are different types of surveys that are done; with Mr. Brown responding yes. Commissioner Pritchard inquired if there are different fees attached to those surveys; with Mr. Brown responding no. Commissioner Pritchard inquired how much it is to do a perimeter survey or a tree survey; with Mr. Brown responding it is $78.00. Commissioner Pritchard inquired if someone is told they need to have a survey, are they specifically told what type of survey, what the parameters would include, and that just because someone is surveying the property does not mean they are clear-cutting the property; with Mr. Brown responding it is only if the surveying activity is going to result in the removing of a protected tree, where a survey permit would be required. He noted every survey that is done in the County does not require a survey permit from Natural Resources; and that is an important distinction. He advised the permit requirement is only necessary where the survey process would require the removal of protected trees.
Commissioner Pritchard stated it was mentioned that the proposed ordinance is a consolidation; it is supposedly easier to understand; Mr. Brown stated the appendices make up the 77 pages; the actual document itself has been reduced in size to 26 pages; he would have liked an eight-page document; and if he could have done that, then he would have.
Commissioner Pritchard stated it was alleged that the participants had a vested interest, and it would require professional services and fees that are now built into the ordinance, which would drive up the cost of housing; and inquired if Mr. Brown finds that to be true; with Mr. Brown responding the practitioners are operating under the existing Ordinance and would continue to operate under the new ordinance if passed; every indication is that it would make things easier for those practitioners; and theoretically they would spend less time doing it. He stated he does not believe there was any monetary gain from this outcome; and if anything, the Task Force had the interest of the citizens and the Board at heart.
Commissioner Pritchard stated often the Board hears that it did not listen to the public; the public did not go to the Task Force meetings; the input was not heard; and his concern is if there is public comment to make when the Task Force is developing something, that is where the public comment is made. He noted he has spoken to several Task Force members and he gets the same comment, that it is not the best, but it is a good step; and he would have to agree that he would rather see a three-page ordinance, but that is not going to happen. He stated the hurricanes in Brevard County clearly identified that the 100-year old trees are not exactly the benefit they are thought to be; many of the trees fell on property and destroyed homes; he would hope there would be a certain amount of consideration; and there needs to be ways to mitigate for a tree that is getting to the size that it is going to create a problem. He stated it is his hope that the ordinance will provide an opportunity for people to move or take down a tree and do whatever they need to in order to use their property; it is their property; and if the tree cannot be built around, then there needs to be a way to enhance property. He stated something else that needs to be addressed is that if it becomes an issue where someone cannot put so many trees of a certain caliber because there is no room due to whatever the development may be, it needs to be addressed quickly. He stated he would suggest reviewing the ordinance in six months just to see if there have been any instances that need to be addressed now, in order to prevent bigger things from happening.
Commissioner Scarborough stated it is amazing to have come this far after all of the diversity of views; and he would like to thank the Task Force for the 21 meetings. He commented on the criticism the Board receives for not doing anything right; stated for example, the Purpose and Intent Section Three says to preserve property values; and he has something from www.floridagardening.org that says, “moving from good landscaping to excellent landscaping would increase values 12 percent.” He stated it goes on to quote different scientific studies, “one tree can remove 26 pounds of carbon dioxide from the air, equivalent to 11,000 miles of air emissions. That tree also releases enough oxygen each day to supply a family of four, because we know it has a moderating temperature effect. It also removes organic volatile compounds in the air and toxic chemicals. It helps control odors, it absorbs sound waves, and finally it decreases stress and increases productivity from the reduction of stress by 20 percent, as businesses have found that by having landscaping they can have more productive employees.” Commissioner Scarborough stated to say the County is preserving property values is an understatement.
Chair Voltz stated Ms. Banks suggested the Board do away with the entire ordinance; she realizes a segment of the population would like the Board to do that; but then there is the segment of population who wants ten times more than what the County has; and it is a balance as it is just the first step. She stated she has some suggestions for staff to go back and look at; page three talks about the buildable area meaning the gross area, which is not eligible for the issuance of building permit by the County, such as building setback area, shoreline protection buffers, coastal construction setback areas, wetlands, and other similar areas; after wetlands, she would like to see on-site wastewater footprints included because nothing can be put in the septic tank or drainage area; and she does not want to negate what the Task Force has done.
Mr. Brown stated the on-site wastewater treatment system footprint is an area that cannot be built upon in the future because of the nature of it, nor can it be planted on.
Chair Voltz stated on page 8, Section 62-4334(4) states, “single-family properties of 2.5 acres or less that have a C.O.,” but Commissioner Scarborough wants it changed to Homestead Exemption; and if the Board does that, it will discriminate between two homes side by side, one built for a rental property and one built for someone who has Homestead Exemption. She stated that will be a gross discrimination; and she would like to see it left as a C.O. She noted page 15 states, “the minimum number of shrubs and ground cover, not including sod, per-acre of buildable area or fraction thereof.” She stated if there are 250 plants that have to be on an acre and it is brought down to 62-plus plants per quarter-acre lot, she would say there is not one person who has 62-plus shrubs and plants on a quarter-acre lot; and she would like to look at that number. Mr. Brown stated that particular number was looked at in the Task Force’s cost and applicability process when it reviewed some of the plans to see if it was cost effective; and he can have that evaluation done as part of the first review to get greater clarification as to if that number is the right number to have. Chair Voltz inquired if there is a house on a quarter-acre lot, where would one plant 62 shrubs and trees where they would be viable in the long run; with Mr. Brown responding he can bring that back to the Board before the next revision process. Chair Voltz stated page 19 states, “the property must be free of nuisance vegetation as defined in Section 114, Article II”; she was hoping the ordinance would not refer to many different things; and she would like to add that definition to the definitions in this particular ordinance so that it is available.
Ms. Busacca inquired if Chair Voltz would like that done as part of the proposed ordinance; with Chair Voltz responding this is just a list.
Chair Voltz stated Exhibit 3 lists five items; but the Board is not looking at all of the items; and a decision needs to be made but she does not know if it needs to be made tonight. Mr. Brown stated it would be helpful to get resolution on these; he has presented them as giving the Board options under each one; if decisions are made on the two and one-half pages, it would help with some clarity; particularly, the Task Force, BCAC and LPA thought it was a prudent move for the Board to consider these so they can be integrated.
Commissioner Colon inquired if they can be done separately; with Mr. Brown responding affirmatively, as it is an acceptable change to make at this juncture.
Commissioner Scarborough stated he would like to go back to the listing and the concept of non-native noxious invasive plants; there seem to be three definitions; and he would like to discuss that this evening.
Commissioner Carlson stated she would like to discuss Exhibit 3. Commissioner Colon inquired when Chair Voltz’s suggestions would be coming back to the Board and what exactly is the direction that was given; with Chair Voltz responding the Board did not decide on a time frame; but 120 days is good. Chair Voltz inquired of Mr. Brown if that is enough time get the ordinance in place and use it; with Mr. Brown responding there are some things he knows will need to be changed; and the Board may be able to look at them in 120 days. Chair Voltz stated she knows it will not be enough time to look at every single issue; and if the Board can review it in four-month increments, it would be enough time. Mr. Brown stated the changes Chair Voltz specified just now, and any other ancillary administrative things, such as Department versus
Division, he can bring back in that timeframe; and anything beyond that may have to be looked at periodically.
Commissioner Colon stated her concern is any changes the Board wants to make should be done today; and so when the Board votes, it will be a document that will actually be applied. She noted she is concerned with anything coming back to the Board in 120 days, because that is not being realistic; inquired if that means the Board will be tweaking the ordinance; and noted if everyone is comfortable with the recommendations of Chair Voltz it can be approved today, but some of them may need some research. She noted that is where Chair Voltz is concerned, because she does not want to affect the ordinance in any way; and she wants it to be something everyone is comfortable with. Chair Voltz stated she did not want to do anything that would negate all of the work the Task Force has done; the issues she brought up were not addressed; and that is why she is bringing them up now.
Commissioner Colon stated so far, the Board has addressed everything that has been approved by the Task Force; and now the Board is about to discuss Exhibit 3. She advised Mr. Brown will need to give the Board direction or else they will all be here all night; and the Board will give its input but Mr. Brown will need to be as assertive as possible.
Commissioner Colon stated 1-b. and 1-d., under Exhibit 3 look similar in that one states, “All Linear Projects are not exempt”; and the other one states, “Approve with modification that Linear Projects are not exempt unless approved by the Board.” Commissioner Carlson stated 1-a. is action taken by the Board and the other is not; so the Board will have to go through a public interest criteria; and inquired if the Board wants to look at the items on a case-by-case basis, or does it want to say, “Linear Projects are by definition in the public interest and therefore should be exempt.” Chair Voltz stated she knows Commissioner Carlson mentioned 1-a, but 1-b. says, “All Linear Projects are not exempt.”
Mr. Brown stated 1-a. would maintain the current situation where Linear Projects and County Road projects are exempt from the canopy provisions; 1-b. states no one is exempt; no Linear Projects and no County Road projects are exempt; 1-c. states Linear Projects are exempt unless within 150 feet of a residential lot; and 1-d. states Linear Projects are not exempt unless by County Board action.
Chair Voltz inquired what the mindset of the LPA and Task Force was on 1-b. when that is what it recommended; with Mr. Brown responding it is a government-by-example issue; if a Linear Project is being built by public entity or for public purposes, they should bear the same level of scrutiny that a private subdivision also deals with; the argument is government-by-example says nobody is exempt; the harsh reality is that public roads are built with public dollars; and if the Board has to acquire additional lands to deal with the canopy issue, then that is an additional cost to the taxpayers.
Motion by Commissioner Carlson, seconded by Commissioner Pritchard to approve Exhibit 3, 1-a.
Commissioner Scarborough stated he strongly disagrees with 1-a for reasons other than just setting an example; the Board has learned the driving experience is just as important as the
driving time; having everything become an asphalt issue as opposed to an aesthetic issue is contrary to what many people feel today; and the idea that the Board is setting an example is only part of the issue. Commissioner Scarborough stated if the Board has some concerns, it should opt for 1-d.; and he cannot support 1-a.
Commissioner Carlson stated as justification for 1-a., she was looking at it from the Greenways Master Plan; the intention was not to have to deal with taking out trees, but going around them because it is part of a beautification process; and in the Greenways and Trails Master Plan it is explicitly laid out that the intention is to find the path of least resistance. Commissioner Scarborough stated the Board needs to approve 1-d., as it allows the Board to look at it issue-by-issue. Commissioner Carlson stated that is fine with her; and she will withdraw her motion.
Commissioner Pritchard stated he does not view 1-a. as being nothing but asphalt; with Commissioner Scarborough responding 1-a. exempts it from the provisions and by exempting it carte blanch from the provisions, they will not be reviewed; and under 1-d. there would be a review. Commissioner Pritchard inquired if Commissioner Scarborough thinks there are going to be any roads put in that are just going to be strips of asphalt without any landscaping; with Commissioner Scarborough responding it is easier than can be imagined. Commissioner Pritchard stated he is also concerned that the cost one might have to drive up the compliance of the linear project could be tripled because of additional rights-of-way; with Commissioner Scarborough responding under 1-d., the Board can act accordingly.
Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Exhibit 3, 1-d. Motion carried and ordered, with Commissioner Colon voting nay.
Commissioner Carlson stated under number 2 of Exhibit 3, 2-b. is the better choice because it demonstrates the actual agricultural activities and started from where that activity began.
Motion by Commissioner Carlson, seconded by Commissioner Scarborough to approve Exhibit 3, 2-b. Motion carried and ordered unanimously.
Commissioner Carlson stated on number 3 of Exhibit 3, she and Mr. Brown agreed that either one is fine, as they both do the same thing; and she agrees with 3-b.
Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Exhibit 3, 3-b. Motion carried and ordered unanimously.
Commissioner Carlson stated on number 4 of Exhibit 3, she would move 4-a, but delete, “or for the purchase of environmentally sensitive lands.” She stated it would be, “Approved as proposed. Utilize funds only for re-vegetation, restoration and management of public conservation lands; which is quite a broad grouping of things.
Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Exhibit 3, 4-a, with deletion of language, “or for the purpose of environmentally sensitive lands.” Motion carried and ordered unanimously.
Commissioner Scarborough inquired if there is methodology where the vegetation restoration is something in proximity to; with Mr. Brown responding if approved, that is handled through the mitigation process; and if there are funds for the mitigation process, the Board can do that. Ms. Busacca stated staff can put together an administrative order for the Board that relates to how the funds were utilized. Commissioner Scarborough stated when Brevard Crossings was developed near S.R. 524, the St. Johns River Water Management District did mitigation to Tosohatchee State Reserve, which is not even in Brevard County; and there were a lot of comments from the community that the mitigation should be in proximity. Chair Voltz stated she agrees with Commissioner Scarborough; and the off-site mitigation does not state how far off-site it could potentially go.
Motion by Commissioner Carlson, seconded by Commissioner Pritchard to approve Exhibit 3, number 5. Motion carried and ordered unanimously.
Commissioner Carlson stated she did not have a problem with any of the nine issues regarding Administrative, BOCC, staff, individual or public comment issues. Chair Voltz stated she has an issue with the language “fraction thereof” in that part of the exhibit addressing minimum inches of dbh per-acre of buildable area. She stated to her it indicates if there is a quarter-acre lot, there should be 250 shrubs on it, which does not make sense; and Mr. Brown noted 62.5 is the quarter-acre minimum. Mr. Brown stated the intent of “or fraction thereof” was when there is a quarter-acre lot, it also reduces the number of shrubs proportionately. Chair Voltz stated that needs to be clarified. Mr. Brown advised it has been referenced in the intent on the record and that will be one of the things staff can bring back to the Board during the 120 days. Chair Voltz stated at the same time, the Board needs to look at the feasibility of putting 62 plants and shrubs on a quarter-acre lot.
Mr. Brown stated it would be helpful to get clarification on items 1 through 9, because some of them have administrative ramifications.
Chair Voltz advised the Board can make one motion on all nine, but it can get a consensus on them one at a time.
Chair Voltz noted Item 1 is fine with the Board.
Commissioner Scarborough stated he would like to see item 2 eliminated.
Commissioner Carlson stated Item 3 needs further explanation. Mr. Brown stated what that language does is assure that people with less than the required preservation of canopies, which is 20 percent; if they only have 5 percent they are not going to be penalized for the pre-existing conditions. He noted there is 20 percent required preservation; and 10 percent planting, for a net of 30 percent canopy. He stated that is fine if there is a 100 percent wooded site, but if there is only 5 percent, such as an oak hammock, it should not be presumed the developer would have to plant 25 percent; and that is penalizing them for a previously existing site condition. He noted Item 3 clarifies that if the developer has less than the required preservation, staff will recalculate the final end number.
Chair Voltz noted the Board does not have a problem with Items 3 through 9.
Motion by Commissioner Carlson, seconded by Chair Voltz, to approve Items 1, and 3 through 9. Motion carried and ordered unanimously.
Ms. Busacca advised Transportation Engineering Director John Denninghoff has inquired when it come to Linear Projects, does the Board want staff to assume that this Linear Projects issue should be discussed at a different time, or should staff move forward under the previous Code, or should staff exempt Linear Projects.
Chair Voltz noted the Board needs to exempt current Linear Projects. Mr. Denninghoff stated an example would be the Pineda Causeway extension; that project has not been started yet; and it would need another $10 million. Commissioner Scarborough stated Mr. Denninghoff can come back to the Board with any project that is problematic where there is a $10 million overrun.
Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to exempt all the existing Linear Projects that are currently under design. Motion carried and ordered unanimously.
Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Ordinance 06-55, Amending Chapter 62, Article XIII, Division 2 and 3 Code of Ordinances of Brevard County, Florida, relating to Landscaping, Land Clearing and Tree Protection Specifically Repealing Divisions 2 and 3; Creating Division 2 Landscaping, Land Clearing and Tree Protection; reserving Division 3; creating Section 62-4331 Purpose and Intent, Section 62-4332 Definitions, Section 62-4333 Applicability, Section 62-4334 exemptions, Section 62-4335 Non-bona Fide Agricultural Land Clearing Activities, Section 62-4336 Penalties and Remedies, Section 62-4337 Permit Application Requirements and Review Process, Section 62-4338 Land Clearing Performance Standards, Section 62-4339 Canopy and Tree Preservation Performance Standards, Section 62-4340 Landscaping Performance Standards Section 62-4341 Landscape Buffers, Section 62-4342 Maintenance and Inspections, Section 62-4343 Incentives for Increased Canopy and Tree Preservation and Increased Landscaping, Section 62-4344 Alternative Landscape Enhancement Plans, Mitigation, Compensation and Waivers, Section 62-4345 Appeals; Providing for Conflicting Provisions; Providing for Severability; Providing for Area Encompassed; Providing for Inclusion in Code and an Effective Date, as amended. Motion carried and ordered unanimously.
Mr. Brown noted Exhibit 2 was also advertised; it is not essential that it be passed tonight, but he will need to bring it back.
Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Exhibit 2. Motion carried and ordered unanimously.
Upon motion and vote, the meeting adjourned at 7:52 p.m.
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HELEN VOLTZ, CHAIR
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK
(S E A L)
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