MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

December 3, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 3, 2002, at 9:00 a.m., in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Joaquin Cato.

Chairperson Jackie Colon led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the Minutes of September 17, 2002 Regular Meeting; September 24, 2002 Special Meeting; October 1, 2002 Regular Meeting; and October 3, 2002 Zoning Meeting. Motion carried and ordered unanimously.

REPORT, RE: AGENDA ITEM III.A.8

County Manager Tom Jenkins requested Item III.A.8, Extension Agreement with Indian River No. 1 Dev., Inc., Re: Aquarina Boulevard, be deleted from the Agenda.

Commissioner Higgs inquired if the road has been completed; with Assistant County Manager Peggy Busacca responding no, staff has not received the bond and the bank chose not to extend the bond.

REPORT, RE: OFFICE SPACE FOR CONGRESSMAN TOM FEENEY

Commissioner Scarborough advised the County had an inquiry from newly-elected Congressman Tom Fenney about office space in the North Brevard Government Center; and recommended the County Manager be authorized to discuss it with him under similar conditions as the arrangements made with Congressman Weldon.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the County Manager to have discussions with Congressman Tom Fenney about office space in the North Brevard Government Center. Motion carried and ordered unanimously.

REPORT, RE: STATEMENT ON MOTIONS TO TABLE

Commissioner Pritchard stated the Board voted on two resolutions at the first meeting he attended; he made a motion to table those resolutions so he could understand their contents before voting on them; but the resolutions were voted on and passed. He stated he recognizes the need for timely resolutions, but believes it is inappropriate to call for a vote on any subject matter that expresses a policy or position of the Board, as the two resolutions did, without affording each Commissioner the opportunity to understand what he or she is voting on. He stated it is his intent to ensure that a reasonable opportunity to understand a subject matter is provided; and if a resolution has a short time constraint, that is more of a reason to pre-coordinate wording by means of an advanced agenda thus precluding anyone being surprised. Commissioner Pritchard advised it is his understanding the Board has a policy of providing complete agendas by the Friday before the Tuesday meeting, but in reality volumes of additional material continue to arrive late on Monday. He stated government should be run like a business; to that end, he would suggest that any resolution, other than congratulatory in nature, that expresses policy positions or fiscal issues, shall require that each commissioner, should he or she choose, be afforded a reasonable time to become familiar with the contents before a vote is called for by the Chairperson.

Chairperson Colon thanked Commissioner Pritchard for his statement, and noted it is well taken.

Commissioner Higgs stated to follow up on Commissioner Pritchard’s statement, would the Board not wish to table the item regarding Congressman Feeney’s request because that had not come in any way, shape, or form, to the Board, whereas the two resolutions were distributed well in advance of the meeting. She inquired if Commissioner Scarborough might table the request to determine the fiscal impact, and consider it at another time. Commissioner Scarborough stated the Board could view it that way, but also that would have to come back; this is just to open up discussions as opposed to taking a position; but if the Board prefers to have it on the next agenda, he does not think the time is of that great an essence. Commissioner Higgs stated the Board had discussions about the cost and ability of Congressmen to get funds to cover those costs; Congressman Weldon has covered the full cost as opposed to other Congressmen’s offices, which costs have been shared by the entire country; so if the Board could, she would be happy to work with Congressman Feeney and believes the Congressman should cover the cost.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to reconsider the previous motion authorizing the County Manager to discuss office space in North Brevard Government Center with Congressman Tom Feeney. Motion carried and ordered unanimously.

Commissioner Pritchard advised there is a difference in what is being discussed; the motion about Congressman Feeney’s request for office space was for the County Manager to enter into negotiations; and he does not see where his consideration of being surprised by what he considered to be last minute resolutions has anything to do with discussion by the County Manager with the Congressman. Commissioner Scarborough stated that was the intent, and he will be glad to restate it to make it clearer. Commissioner Higgs stated the resolutions did go out, and she regrets that Commissioner Pritchard did not have it because it was sent to his office; they were part of the information distributed; and she apologizes if he did not have them. She stated her concern with Congressman Feeney’s request is that there are funds available for congressional offices; and both Congressman Feeney and Congressman Weldon should cover their costs. She stated the County is lucky to have them in its facilities and wishes to keep them there, but there are allocations for congressional offices; and they should treat each the same and ask them to have their appropriations cover the costs.

Commissioner Scarborough stated if the Board is going to get into discussion not only on arrangements with Congressman Feeney, but also with Congressman Weldon, that would expand the scope of the discussion to some extent; and the Congressmen should be treated under similar basis. He stated to simplify the matter, he will restate the motion that the County Manager be authorized to enter into discussions and leave it there with no reference to similar arrangements with Congressman Weldon even though that continues to be his belief.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize the County Manager to enter into discussions with Congressman Tom Feeney regarding office space in North Brevard Government Complex. Motion carried and ordered unanimously.

REPORT, RE: SAMPLE OF THE ARTS - BREVARD MUSEUM OF ART AND SCIENCE

Commissioner Carlson requested Jack Lambeck, Executive Director of Brevard Museum of Art and Science, come forward and tell the Board about the Museum.

Jack Lambeck advised he has been the new Executive Director of the Brevard Museum of Art and Science since July 2002, and thanked the board for the opportunity to express their views on the metamorphosis that is taking place at the Museum. He stated the Museum exists to enhance and enrich the quality of life of the community and its visitors with an enduring appreciation of art and science through exhibitions, collections, and educational programs, which enlighten and inspire the human creative spirit. He stated that is a recent revision of the mission statement that they voted on last month, and a refinement of their statement and mission. He stated as well as a cultural institution, there are many things that are taking place in the Museum at this stage; and it should be looked at as an educational facility as well as the cultural asset of the community and an alternative and additional educational facility that will directly be coordinated with the curriculum of schools and teachers in the area. He stated it will be a great benefit to the metamorphosis of the museum. Mr. Lambeck stated in light of that, they have offered new accredited courses; they will be degreed courses if one is in a degree program through Brevard Community College; and on the science level, his plans are to expand it. He stated right now they have a hands-on science museum for children basically K through 5; the goal is to expand it from age 2 to 102 so that it accommodates everyone in the community as an educational facility regarding science; and they will have revolving exhibitions as well as hands-on experiments that are built by the local community. He advised the Museum was established in 1978, so they are in their 25th year this October and will end it with a celebration in October 2003; he invited all the Commissioners to come and do a personal tour with him; and stated they should find it beneficial to go through all the back rooms and areas, hear the explanations of what the Museum does, and see pictures of other things. He stated the Commissioners could make an appointment with him and he will be glad to go through the Museum and show them all the things they do and explain in detail where they are at Stage 3 and where they plan to go in the future.

Commissioner Carlson stated when the strategic efforts are finished, Mr. Lambeck could come and present them to the Board; and they are doing a lot with the City of Melbourne also. Mr. Lambeck stated the Board can play a role in the area of Eau Gallie; and it is a good direction to go in if they consider it a cultural district, because it will be a large asset to the County as well as surrounding counties. He stated the Museum could be the anchor to the revitalization of the area; there are other properties they can expand right there; there has been debate in the past about the Museum moving to another area; and as long as he is the Director, that is the area it should be built in and expanded as a cultural institution.

Commissioner Pritchard advised his office is devoid of paintings; and inquired if the Museum puts any pictures out on loan; with Mr. Lambeck responding they do not do that, but Brevard Cultural Alliance does those things because it is into public art. Commissioner Carlson stated the County has a program called Art in Public Places. Mr. Lambeck stated Brevard Cultural Alliance is the institution to start with because it has a broader scope; and a museum is about coming to see the works there. Commissioner Pritchard stated he had the pleasure of touring the Museum a couple of months ago and saw many of the pieces; and that is why he asked, because the Museum has some beautiful pieces of art.

Mr. Lambeck stated they just received a donation of a new important collection from a local collector Enrique Kanal Mendoza; it is a collection of art deco work done for the Chase Brass and Pipe Company that started in the 1930’s; it is 1,000 pieces of work, which is an important link to art and culture and science in this high-tech area; and he sees it as an educational link between all those features, and hopes the Commissioners will come and see it. He noted some of it is on display now.

REPORT, RE: TIME CERTAINS

Chairperson Colon advised Item V.F., Performance Review of Property Appraiser Request for Proposal, is scheduled at 10:00 a.m.; VI.B.1, Approval of Grant Application is scheduled at 10:30 a.m.; V.E., Discussion of the Seawall is scheduled at 1:30 p.m.; Item V.C., Special Masters is scheduled at 2:30 p.m., and a similar subject, V.D., Extending Existing Contracts with Special Masters, is also scheduled at 2:30 p.m. She stated the Board has an executive session at 11:30 a.m., which means it will recess and go upstairs for half an hour or so; and at that point they will decide when they will come back from lunch. She noted it will probably be 1:00 p.m.

REPORT, RE: LIAISON APPOINTMENTS

Chairperson Colon inquired if there were any questions about the liaison appointments; and stated if not, she would appreciate a motion to approve them.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the liaison appointments. Motion carried and ordered unanimously.

REPORT, RE: POLICY FOR ADDRESSING AGENDA ITEMS AND TIME RESTRICTIONS

Chairperson Colon advised if an item is pulled from the Agenda by the public, it will be heard right after the Consent Agenda; and the public should address the Board and not an individual Commissioner or staff member. She stated throughout the meeting, she will ensure everyone focuses on the things she addressed so they can have a smooth and professional meeting. Chairperson Colon advised five minutes will be granted for Consent items, fifteen minutes for Public Hearing items, and five minutes for Unfinished Business and New Business items.

REPORT, RE: AGENDA ITEM III.E.1, 2003 MEETING SCHEDULE

Commissioner Carlson requested Item III.E.1., Approval, Re: 2003 Board Meeting Schedule, be pulled for discussion. She advised she has to leave at 4:30 p.m. to get a flight at 7:00 p.m.

REPORT, RE: AGENDA ITEM III.F.7

Commissioner Scarborough requested Item III.F.7, Approval of Write-off, Re: Various Uncollectible Receivables, be pulled from the Agenda.

RESOLUTION, RE: COMMENDING EAGLE SCOUT JEREMY COWLEY

Commissioner Scarborough read aloud a resolution commending Jeremy Cowley for attaining the rank of Eagle Scout; and thanked Mr. Cowley for choosing a project in Wickham Park.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution recognizing the achievement of Eagle Scout Jeremy Cowley, and offering congratulations and best wishes for a successful future. Motion carried and ordered unanimously.

Commissioner Scarborough presented the Resolution to Jeremy Cowley, who thanked the Board and advised the bridge is about 42 feet long and 7 feet wide, so people can use utility carts and wheelchairs to cross it; it is behind the amphitheater connecting the camping area to the park; and the Vietnam veterans that come to the park can cross the bridge instead of going a long way around.

RESOLUTION, RE: PROCLAIMING WORLD AIDS DAY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution proclaiming December 1, 2002 as World AIDS Day, and urging all citizens to take part in activities and observances designed to increase awareness and understanding of HIV/AIDS as a global challenge and join the effort to prevent the future spread of HIV/AIDS. Motion carried and ordered unanimously.

FINAL ENGINEERING APPROVAL, RE: MURRELL ROAD WIDENING, PHASE 1

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final engineering approval for Murrell Road Widening, Phase 1, subject to minor engineering changes as applicable and developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: WINGATE ESTATES, PHASE 3

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final plat approval for Wingate Estates, Phase 3, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: SONOMA
SOUTH SUBDIVISION, PHASE 1

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final plat approval for Sonoma South Subdivision, Phase 1, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining jurisdictional permits; and execute Contract with The Viera Company guaranteeing infrastructure improvements in the subdivision. Motion carried and ordered unanimously.

CONTRACT WITH FLORIDRON, LTD., RE: IMPROVEMENTS IN INDIAN LANDING
(RIVERSIDE), PHASE 4

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Contract with Floridron, Ltd., guaranteeing infrastructure improvements in Indian Landing (Riverside), Phase 4. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH WILHELM REINDL, RE: TREASURE LANE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Unpaved Road Agreement with Wilhelm Reindl for a building permit off an existing right-of-way, known as Treasure Lane, which has been constructed to the standards of the Unpaved Road Code, Section 62-102. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH CLINT STORY, RE: MULBERRY LANE,
EXTENSION B

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Unpaved Road Agreement with Clint Story for construction of a road in the existing County right- of-way, known as Mulberry Lane, Extension B, under the Unpaved Road Code, Section 62-102. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING ACTION AGAINST THE PERFORMANCE LETTER
OF CREDIT FOR AQUARINA BOULEVARD

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution authorizing staff to take action against the performance Letter of Credit issued to guarantee the performance of construction on Aquarina Boulevard as the developer has failed to complete the work; and to discontinue processing the claim if the Letter of Credit is extended and an Extension Agreement is executed by the developer. Motion carried and ordered unanimously.

RESOLUTION NO. Z-10751, RE: STATEWIDE MATERIALS’ PROPERTY CONDITIONS
FOR LAND ALTERATION

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution setting forth conditions for Statewide Materials’ Conditional Use Permit for Land Alteration on parcel located east of Space Coast Executive Airport. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH SCI FUNERAL SERVICES OF FLORIDA, INC.,
RE: OPERATION OF FLORIDA MEMORIAL GARDENS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Binding Development Plan Agreement with SCI Funeral Services of Florida, Inc. setting forth conditions for operation of Florida Memorial Gardens. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: ORDINANCE REVISING SECTION 62-1102, ZONING CODE,
FOR FIRST FLOOR PARKING EXEMPTIONS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve the legislative intent to amend Section 62-1102 of the Land Development Regulations, to clarify that single-family homes do not qualify for first floor parking exemptions in calculating building height. Motion carried and ordered unanimously.

ACCEPTANCE, RE: BRAIN INJURY ASSOCIATION OF FLORIDA GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to accept a grant from the Brain Injury Association of Florida, in the amount of $1,150 to purchase a small enclosed trailer to transport and store bicycle safety rodeo equipment, and approve necessary budget change requests for the grant. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS AND APPOINT COMMITTEES,
RE: PICK-UP AND DISPOSAL OF ANIMAL CARCASSES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise request for proposals for pick-up and disposal of animal carcasses services; appoint Richard Rice, Laurie Whiting, Jim Lee, a representative from Central Services, and Craig Engelson to the Selection Committee; and appoint Laurie Whiting, a representative from the County Attorney’s Office, and Craig Engelson to the Negotiating Committee. Motion carried and ordered unanimously.

AMENDMENT NO. 2 TO AGREEMENT WITH THADDEUS COHEN ARCHITECT,
RE: HARRY T. AND HARRIETTE V. MOORE MEMORIAL PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Amendment No. 2 to Agreement with Thaddeus Cohen Architect, to provide update design documents and provide additional services for development of Harry T. and Harriette V. Moore Memorial Park, at $5,200. Motion carried and ordered unanimously.

AMENDMENT NO. 5 TO AGREEMENT WITH IVEY, HARRIS & WALLS, INC.,
RE: POW/MIA PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Amendment No. 5 to Agreement with Ivey, Harris & Walls, Inc., to provide additional services at $8,040 for development of POW/MIA Park; and amend Article 4 authorizing execution of change orders pursuant to Policy BCC-25, Procurement. Motion carried and ordered unanimously.

RESOLUTION AND LEASE AGREEMENT WITH CHILD CARE ASSOCIATION OF
BREVARD COUNTY, INC., RE: USE OF WOODY SIMPSON RECREATION CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution and execute Lease Agreement with Child Care Association of Brevard County, Inc. for use of Woody Simpson Recreation Center from January 1, 2003 through December 31, 2003, at $700 per month. Motion carried and ordered unanimously.

AUTHORIZATION TO MODIFY BUDGET PROGRAM, ADVERTISE BIDS, AWARD BID, AND
EXECUTE CONTRACT, RE: NATURE CENTER AT RIVERWALK A FAMILY PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize modification to the 2001-02 Budget Program, from purchase and installation of a mobile unit to construction of a permanent building at Riverwalk A Family Park; and authorize the Parks and Recreation Department to advertise for bids to construct a permanent building, award bid to lowest qualified bidder, and the Chairperson to execute the Contract. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH TOWN OF INDIALANTIC, RE: WATSON
DRIVE SAVE OUR COAST SITE E

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution and execute Agreement with Town of Indialantic to sublease the Watson Drive Save Our Coast Site E for development, operation, and maintenance as a park. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA INLAND NAVIGATION DISTRICT, RE: GRANT FOR
KELLY PARK EAST

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement with Florida Inland Navigation District (FIND) for a grant of $80,000 for improvements to Kelly Park East. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH CITY OF SATELLITE BEACH, RE: SUB-LEASE
OF PARADISE BEACH DEVELOPMENT PARCELS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution and execute Agreement with City of Satellite Beach to sub-lease Paradise Beach Development Parcels for development, operation, and maintenance as a park. Motion carried and ordered unanimously.

FIRST RESPONDER AGREEMENTS WITH MUNICIPALITIES, RE: ALLOCATION OF
EMS FUNDING

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute First Responder Agreements with Cities of Cape Canaveral, Cocoa, Cocoa Beach, Indian Harbour Beach, Melbourne, Palm Bay, Rockledge, Satellite Beach, and Titusville, and Town of Indialantic allocating EMS funds for first responder services. Motion carried and ordered unanimously.

EXECUTION, RE: DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
NOTIFICATION OF SECTION 215.97, FLORIDA STATUTES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Florida Department of Agriculture and Consumer Services Notification of Section 215.97, Florida Statutes, for financial assistance in the amount of $46,945.20 for arthropod control. Motion carried and ordered unanimously.

USE OF MANATEE COUNTY RFP, RE: PROCUREMENT OF ODOR AND CORROSION
CONTROL CHEMICALS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize proprietary procurement of US Filter’s Bioxide odor and corrosion control chemicals under Manatee County’s RFP #99-1080-FL. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA POWER & LIGHT COMPANY, RE: PURCHASE OF
RECLAIMED WATER FOR CAPE CANAVERAL POWER PLANT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement with Florida Power & Light Company for purchase of reclaimed water for its Cape Canaveral Power Plant for a term of 20 years with one 20-year renewal upon request of Florida Power & Light Company and approval of the County. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: WASTEWATER CAPITAL
RECOVERY ORDINANCES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise public hearings to consider ordinances establishing capital recovery charges for Palm Shores Regional Wastewater System, North Palm Shores Wastewater System, and West Myrtice Avenue Wastewater Pump Station System. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH TECH SYSTEMS, INC., RE: PARKWAY COMPLEX
BUILDING J ROOF REPLACEMENT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Change Order No. 1 to Agreement with Tech Systems, Inc. for Parkway Complex Building J Roof Replacement, increasing contract price by $95,592.30 to replace the entire roof due to unforeseen conditions. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH ALLIANCE DELIVERY SERVICES CORPORATION,
RE: COUNTYWIDE POSTAL AND COURIER SERVICE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Amendment to Agreement with Alliance Delivery Services Corporation for Countywide postal and courier service at approximately $180,000 per year through January 2, 2004. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
CHAPTER 30, CABLE COMMUNICATIONS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise a public hearing to consider an ordinance amending Chapter 30, regarding cable communications to incorporate changes mandated by the State communications services tax replacing cable providers’ franchise fees. Motion carried and ordered unanimously.

AGREEMENT AND RELEASE WITH DAVID ALVAREZ AND WILLAMINA RUIZ,
RE: HEALTH INSURANCE COVERAGE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement and Release with David Alvarez and Willamina Ruiz to enroll Mr. Alvarez in the County’s Group Health Care Plan, paying the premium applicable as a Medicare eligible retiree, and the Clerk of Courts agreeing to transfer $40,000 into the Employee Benefits Group Health Insurance Reserve Fund. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE AND SCHEDULE EXECUTIVE SESSION, RE:
MILLER v. BREVARD COUNTY

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise and schedule an executive session for December 17, 2002 at 11:30 a.m. or as soon thereafter as possible, to discuss strategy relating to mediation and litigation in the Miller v. Brevard County case. Motion carried and ordered unanimously.

REQUEST NOT TO APPEAL SPECIAL MASTER’S DECISION, RE: CODE ENFORCEMENT
ACTION AGAINST STEPHAN PROPERTIES, INC.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to not appeal the Special Master’s decision to dismiss Code Enforcement Case No. 02-2946, Brevard County v. Stephan Properties, Inc. Motion carried and ordered unanimously.

PERMISSION TO SEEK DECLARATORY STATEMENT FROM STATE BOARD OF
MASSAGE , RE: DEFINITION OF MASSAGE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize the County Attorney to seek a declaratory statement from the State Board of Massage Regulation regarding the definition of massage. Motion carried and ordered unanimously.

RESOLUTION, RE: SALE OF BREVARD COUNTY HISTORY BOOKS, VOLUMES 1,
2, AND 3

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution authorizing the Historical Commission to set wholesale and retail prices for the History of Brevard County Books, Volumes 1, 2, and 3; request competitive bids; set subscription fees and advertising rates for future publications; establish a retail shop; and set wholesale and retail prices for retail shop items. Motion carried and ordered unanimously.

APPROVAL, RE: WRITE-OFF OF UNCOLLECTIBLE AMBULANCE ACCOUNTS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve write-off of uncollectible ambulance accounts receivable totaling $1,884,765.51 for FY 2001-02. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to appoint Albino P. Campanini to the Economic Development Commission of the Space Coast with term expiring December 31, 2002, and Ken Black to the Marine Advisory Council with term expiring December 31, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve the bills and Budget Change Requests as submitted. Motion carried and ordered unanimously.

PERMISSION TO NEGOTIATE AND ENTER INTO AGREEMENT WITH OUTSIDE COUNSEL,
RE: LANDFILL GAS UTILIZATION PROJECT AND ASSOCIATED ENVIRONMENTAL
PERMITTING

Robert Watts with Energy Recovery Associates, inquired if permission to enter into agreement with outside counsel and negotiate means to negotiate with Energy Recovery; with Chairperson Colon responding yes.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to negotiate and enter into a fee agreement with outside counsel for specialized legal services in connection with the landfill gas utilization project and associated environmental permitting for operation and expansion of the landfill gas management system. Motion carried and ordered unanimously.

AGREEMENT WITH DEPARTMENT OF COMMUNITY AFFAIRS, RE: GRANT FOR
COUNTYWIDE SCHOOL FACILITIES INTERLOCAL PLANNING AGREEMENT

Dolores Kane of Merritt Island inquired if the item is the one that will not allow any more building if the schools are considered overcrowded; with Assistant County Manager Peggy Busacca responding Florida Statutes require that local governments and the School Boards enter into planning agreements; this item does not relate to the Board’s policy to review rezonings; it is a grant to allow the County to enter into local agreement so it can participate and provide information. Ms. Kane stated she will go along with it.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement with Department of Community Affairs for a grant of $13,100 to administer State-mandated School Facilities Interlocal Planning Agreement. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING ALLEY IN MERRITT WINTER HOME
DEVELOPMENT - RIVERSIDE BUILDERS OF BREVARD, INC.

Chairperson Colon called for the public hearing to consider a resolution vacating an alley in Merritt Winter Home Development, as petitioned by Riverside Builders of Brevard, Inc.

Robert Gray with Riverside Builders of Brevard, Inc. advised we have pending before the County a proposed site plan; when we did the surveys, we found an alley that was on the property; and the County asked that the alley be vacated before approval of the site plan.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution vacating alley in Merritt Winter Home Development, as petitioned by Riverside Builders of Brevard, Inc. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING DRAINAGE EASEMENT IN SECTION
17, TOWNSHIP 25S., RANGE 36E. - CONDEV ASSOCIATES, LLP

Chairperson Colon called for the public hearing to consider a resolution vacating a drainage easement in Section 17, Township 25S., Range 36E., as petitioned by Condev Associates, LLP.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt Resolution vacating a drainage easement in Section 17, Township 25S., Range 36E., as petitioned by Condev Associates, LLP. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING DRAINAGE EASEMENT IN SECTION
25, TOWNSHIP 27S., RANGE 36E. - ROBERT L. COCHRAN

Chairperson Colon called for the public hearing to consider a resolution vacating a drainage easement in Section 25, Township 27S., Range 36E., as petitioned by Robert L. Cochran.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution vacating a drainage easement in Section 25, Township 27S., Range 36E., as petitioned by Robert L. Cochran. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION CONFIRMING PRELIMINARY ASSESSMENT
ROLL FOR THE WOODLANDS WATERLINE MSBU

Chairperson Colon called for the public hearing to consider a resolution confirming the preliminary assessment roll for The Woodlands Waterline Municipal Service Benefit Unit (MSBU).

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution confirming the preliminary assessment roll for The Woodlands Waterline Municipal Service Benefit Unit and recording of the assessments in the Brevard County Clerk of Courts Official Records Book; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION REVISING CRITERIA FOR WATER AND SANITARY
SEWERAGE SYSTEMS

Chairperson Colon called for the public hearing to consider a resolution revising the criteria for water and sanitary sewerage systems.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution amending Exhibit “A”, Criteria for Water and
Sanitary Sewerage Systems within Brevard County, Florida; Section 110-184, County Code of Brevard, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD
VALOREM EXEMPTION TO AMERICA AEROSPACE, INC.

Chairperson Colon called for the public hearing to consider an ordinance granting economic development ad valorem exemption to America Aerospace, Inc.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance granting an economic development ad valorem exemption to America Aerospace, Inc., specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of Florida Statutes 196.012; providing for proof of eligibility for exemption; providing for an annual report by America Aerospace, Inc.; providing an effective date. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: TRANSMITTAL OF 2002B COMPREHENSIVE PLAN
AMENDMENTS TO DEPARTMENT OF COMMUNITY AFFAIRS

Chairperson Colon called for the public hearing to consider transmittal of the 2002B Comprehensive Plan amendments to Department of Community Affairs.

Janina Allen advised she owns one of the properties involved in the rezoning; and they are wanting to change from planned industrial park to rural residential.

Commissioner Scarborough stated there are four items involved with the transmittal; the item the lady spoke to deals with property just south of Kennedy Space Center on Merritt Island; he does not have any objections to that; however, in the document a reference is made to the School Board criteria, which he does not think the Board has been privy to.

Planning and Zoning Director Mel Scott advised the essence of the three amendments, 02B.2, 02B.3, and 02B.4 on pages 19, 20, and 22, was to solidify in the Comprehensive Plan that the Board is able to and has begun to incorporate the status of educational facilities as well as the other traditional public facilities that are concurrency related as it deliberates Comprehensive Plan amendments and rezonings that seek to increase residential density. He stated the first point they wanted to accomplish was to articulate that they are including educational facilities in the discussion. Mr. Scott advised the issue Commissioner Scarborough was talking about is on page 21; it is an attempt to do away with some facilities standards that have no place in the School Board’s reality in the year 2002 by having 940 elementary student stations per school listed as a level of service; and staff wanted to replace that with a paragraph that attempted to articulate the types of data the Board of County Commissioners would be receiving from the School Board; and the design capacity and student station analysis are received from the educational plant survey of the School Board. He stated in addition to that document, they also receive printouts of the three types of schools, elementary, middle, and high schools, that will be served by a particular property that is hoping to increase its density.

Commissioner Scarborough stated he does not like to incorporate things by reference to a document that he does not know; therein lies a fundamental problem; but beyond that, Mr. Scott offered two solutions—(1) this is a transmittal phase; and (2) amendments can be added later. He inquired if it has to be transmitted today; with Mr. Scott responding the submittal window closes, but the window of opportunity to add amendments is not closed. Commissioner Scarborough stated the School Board and the Board are going to be entering into a dialogue; there needs to be a lot more discussion on the issues; his concern is the Board only looking at very limited criteria as to quality of education; and he would prefer to hold off on this item, and let the School Board work with the Board more closely on it until the comments are received from Department of Community Affairs.

Commissioner Higgs stated the additional language allows design capacity and student station analysis to be a part of the deliberations, which gives the Board a greater ability to look at the total educational experience; and design capacity includes other infrastructure that is available in schools, not just student seats. Mr. Scott stated it would give the Board the latitude to include cafeteria size, gymnasium size, and things of that nature. Commissioner Higgs stated the total education experience begins to be expanded beyond just the number of stations for students; so she would support transmitting the item as it is today, but change “should” to “shall”.

Commissioner Scarborough stated the better schools have overcrowding because of the freedom of choice; some of the dynamics within the system are grading and moving of students between school stations; and one thing he found most surprising is the most overcrowded school is Mims Elementary. He stated Mims has the least number of building permits; the anomaly is occurring by people electing to go to the school outside of their districts; and they have limited that now where people cannot go to that school because overcrowding is not occurring because of building but due to factors outside of building. He stated they have contrary policies being enacted with Article IX passing because it is going to impact the size of the classroom; and how that plays out is going to further add dynamics to the funding as well as what is in the schools. He stated he is glad the Board is going to work with the schools as required by the Legislature and the Comprehensive Plan; and he does not have a problem moving forward, but a simplistic approach would be a disservice to the entire thought process in the long run unless the Board gets more involved.

Commissioner Pritchard stated he has a question regarding design capacity, student stations, and analysis; it is his understanding they have not only created a problem by having schools of choice, but he does not know why every school is not a school of choice; and if they are not counting portables as a facility to teach students in, it is doing a disservice. He stated allowing folks to make the choice and move children to a school they would prefer they go to creates impact on the business and development communities; and he does not agree they should be able to shut one door by opening another. He stated it should be a win/win opportunity on both sides; students are deserving of a fine education and good facilities; but it should not make the business community suffer because they decided to go with a school of choice program.

Commissioner Carlson stated all the schools are schools of choice; as long as the parents deliver the child to that school they can go there provided other things are equal; but the Board is not the School Board and has no jurisdiction. She stated the Board can work with the School Board as much as possible because it has large mountains to get over regarding the school of choice and what it has done in terms of competition among the schools, which tends to be an issue with some parents; but she does not see a problem submitting the amendment. She inquired what is the time frame before staff gets a response from the State; with Mr. Scott responding roughly 60 days from the time they submit the amendments to Department of Community Affairs. Commissioner Carlson stated the Legislature is going to be moving on Proposition 9 amendment in the coming session, so by the end of April 2003 the Board should have some feedback on where that stands; and her concern is how to inject any details on that into the Comprehensive Plan.

Commissioner Scarborough stated the Board is heading in the right direction, but there are some dynamics that are going to require more than adoption of the language if the Board is serious about creating quality education. He stated most people want the Board to be concerned about it even though it is the County government rather than School Board. Commissioner Higgs inquired if the Board passes this amendment today for transmittal, what would Commissioner Scarborough want from staff; with Commissioner Scarborough responding a commitment by the Board to enter into further discussions staff-wise and meet with individual School Board members and superintendents. Commissioner Pritchard stated he agrees and can support that motion.

Motion by Commissioner Higgs, to approve transmittal of the 2002B Comprehensive Plan amendments to Department of Community Affairs.

Commissioner Pritchard stated he has a question about Amendment 2B.1; the property is located on the north end of Merritt Island south of Kennedy Space Center; the area for the most part is industrial and agricultural; and he has not heard anything from any of the other property owners on what the effect might be if the property is rezoned to residential and if it would create a problem when trying to develop commercial parcels because of a nearby residential neighborhood. He stated he would be interested to hear from any property owners who have property in that vicinity.

Janina Allen stated she spoke to most of the owners in that area and was surprised that none of them managed to make it here today; her understanding, from speaking to them, is that they all plan to build their homes there. She stated they are directly across the street from Air Liquide, which puts out quite a bit of noise; they know it is there and have no problem with it; and as far as she understands, they are comfortable with the way it is and plan to make their retirement homes out there.

Commissioner Pritchard inquired if they do not view it as a potential issue a few years from now like buying next to an airport and complaining about airplanes; with Ms. Allen responding not at all; they are used to Air Liquide and it is not a problem at all. She stated she understands they are trying to redo their facility, which they say will be more quiet than it is now; anyone who lives near it can hear it from quite a distance away; but it does not bother them at all. She stated from talking to other property owners, they are not having a problem with it either. Commissioner Pritchard inquired what would happen if someone puts in some type of industrial facility or business development adjacent to the parcel; with Ms. Allen responding most of the property encapsulates all the property owners who want it changed with the exception of Air Liquide across the street on the north side of Courtenay Parkway, and to the west there is one person who has a construction company that is planning to stay PIP. She stated they have no problem with those; and even if they kept their groves the way they are, there is going to be heavy equipment in there to take care of it. Commissioner Pritchard inquired if they plan to subdivide the parcel for other homes; with Ms. Allen responding no one wants to subdivide the parcels they have; and there are a couple of house pads that are already there.

Chairperson Colon advised there is a motion on the floor to approve transmittal; and called for a second to the motion. Commissioner Scarborough seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL OF STAFF’S INTERPRETATION FOR ISLAND POINTE
PUD FINAL DEVELOPMENT PLAN

Chairperson Colon called for the public hearing to consider an appeal of staff’s interpretation by Richard Amari regarding Island Pointe PUD Final Development Plan.

Attorney Richard Amari, representing Towne Development of Island Pointe, Inc. and Indian Cove Marina, stated he is here to appeal the interpretation of the Natural Resources Management staff regarding Chapter 62, Section 3668 of the County Code. He stated the section establishes a 25-foot shoreline protection buffer along Class III waters; there is no question they have Class III waters along their shoreline; and the specific objection relates to subparagraph (5) of the Code, which reads, “Development within the shoreline protection buffer is limited to fences, docks, boat ramps, pervious walkways, and elevated walkways.” He stated the problem is their plan calls for asphalt driveways and parking within the buffer area; however, the next section of that Code says, “In addition, approved accessory uses are permitted in private non-vegetated bulkheaded canals adjacent to Class III waters, which utilize approved stormwater management techniques.” Mr. Amari stated there is no question they have an approved stormwater management technique; their stormwater will drain away from the bulkhead into a filtrated system and actually improve the drainage from the property, which now drains into the water; so the only question therefore is if it is a private canal. He stated it is bulkheaded; the entire area along which the asphalt road goes is bulkheaded; so the only distinction is if it is a private canal. He stated Natural Resources has refused to process their final development plan; and in its letter to him dated November 14, 2002, Natural Resources stated the basis of its claim as, “historical aerials clearly show that the waters were a cove of the Indian River Lagoon prior to filling and dredging activities and these waters are considered public not private.” He stated Natural Resources’ position is they cannot have a canal in an area that always was water, a canal must go through something that was previously uplands, and they cannot have a private canal if the submerged lands are owned by the State of Florida. He stated although that may be the policy the Board wishes to adopt, it is not what the Code provides; it is not the plain reading of the Code; the law requires them to plainly read the Code to interpret it; and inquired what does a plain reading require. Mr. Amari stated the term canal is defined in the Code, Chapter 62-3668, as, “a manmade channel, which conveys water and which may be used for navigation”; there is no question all along the bulkhead water is conveyed; it is used for navigation; they moor boats there; boats come in and go out; and the only question is, is it a manmade channel. He stated it is certainly manmade; the entire length of the bulkhead was dredged through properly obtained dredge permits; it was not a deep area in there; and once upon a time it was a shallow basin that boats could not navigate, and had to be dredged by man for that to occur. Mr. Amari stated the Code does not define what a channel is, but Webster’s New Collegiate Dictionary defines channel as, “the deeper part of a river, harbor, or strait”; it is a deeper part of a river because they dredged it; it was not deep before; so the problem is the mind’s eye views a canal as a strait such as the Panama Canal; but in reality that is not what a canal is. He inquired who is to say what a canal is supposed to look like, and stated the Code simply says a canal, a manmade channel, a deeper part of the river; and that is certainly what they have. He stated in order to reach the conclusion that Natural Resources read, they would have to read words into the Code; and that is not a plain reading of the Code. He stated once they agree that the water in question is a canal, the only remaining question is if it is private; Natural Resources’ position is it cannot be private because the State owns the submerged lands; but they own submerged land leases, which gives them the right to control the waters over the submerged lands and the docks that go in there. Mr. Amari inquired if a person rents a home owned by the County, does the Board believe the home is not private; stated it certainly is private; and people cannot come into that home because it is rented from the County. He stated they rent the submerged lands from the State; and if the Commissioners do not believe it is private, he would invite them to bring their boats in there, anchor them overnight, and see if they remain there the next morning. He stated they have the right to regulate the use of those waters, so it is a private canal; and once the Board reaches the conclusion that it is a private canal, accessory uses can go there. He stated the policy reasons for the 25-foot shoreline protection buffer are (1) protect the disturbance of natural shoreline along Class III waters, and (2) protect the waters from degradation from stormwater runoff; and those make sense. He stated the property is bulkheaded so the shoreline has already been disturbed and it no longer needs the protection; and they have approved stormwater management techniques that will drain the water away from the Class III waters through a filtrated system designed to filter out impurities; and that will improve the drainage condition. Mr. Amari advised they have met the policy provisions of the County Code; however, Natural Resources believes that they are going to set a bad precedent if they are allowed to do it in this area and the whole Indian River lagoon is going to be opened up to do it. He stated that is vested rights; the Board may be inclined to deny the appeal and give them vested rights thinking it may avoid a bad precedent by doing that; but he would urge the Board to avoid that approach because it would be getting to the right result for the wrong reasons. He urged the Board to protect the credibility of its Ordinances; and stated only in that way will citizens respect its governing. He stated a decision can be reached without threatening the Indian River lagoon; it is the right decision; and if it makes that decision, it will benefit by avoiding having to listen to him pontificate about vested rights.

Doug Robertson, MIRA Consultant, advised the MIRA Board strongly supported the project in the past and recommended approval of the preliminary development plan and the final development plan for the project, which reflects the setbacks the Board is considering today, so MIRA is aware of it. He stated they believe the project is a cornerstone of all the work they have been doing and the money that has been spent in that general area; it will eliminate a significant amount of slum and blight; and it has clear environmental and economic benefits. Mr. Robertson stated is important to MIRA as it will provide a consumer base, and shoppers who will go across Tropical Trail to Merritt Park Place and spend their money in the shops and restaurants there; so they feel it is important for the overall success of the project. He requested the Board utilize whatever flexibility it may have to approve the request and expedite the project.

Chairperson Colon requested comments from staff.

Natural Resources Management Director Conrad White advised last year staff reviewed the initial preliminary development plan for the project, and in their review they made note of the Surface Water Ordinance and told the consultants that they would have to comply with the 25-foot setback along the natural water bodies. He stated that was included in their comments that went to the Board; the Board approved the zoning change at that time; they since looked at the site plan; and they had discussions with the engineers for the project. He stated staff maintains it is a sovereign land area of the lagoon; it is not a private canal; it is an embayment of the Indian River lagoon; and that is staff’s position.

Commissioner Pritchard advised Mr. Amari’s interpretation of what is a canal is primarily what this hinges upon; and based on the definition he provided, he would agree that a canal is a deeper part. He stated it is a channel and has nothing to do with being a straight line carved through uplands; it is simply a deeper part of the waterway; and he does not see how the Board can take a position of denying something when it appears that the interpretation of the definition of the canal is what Mr. Amari said.

Commissioner Scarborough stated it would be easy to say a canal is a manmade channel then go into the list of horribles in the whole lagoon because it has channels in it subject to the same interpretation; if a canal is a manmade channel, then Mr. Amari is right; but the phrase “conveys water” bothers him. He stated conveys water and has water in it are two different things; conveys water is where water moves from one area to another; therefore, it would not touch the lagoon, but only be a part of the canal and have a ditch-type function as opposed to being part of the lagoon where there are many channels. He inquired if “convey” means there is movement; with County Attorney Scott Knox responding that is a fair reading of “convey.” Commissioner Scarborough stated the word “convey” makes it impossible to be under Mr. Amari’s interpretation; therefore, he would side with staff.

Commissioner Higgs stated she agrees with staff’s interpretation; and in the permit given to the parcel by the Trustees of the Internal Improvement Trust Fund, dated September 9, 1964, one of the conditions states, “the permittee shall in no way obstruct or impair the free traffic of the general public along any beach and the area outside of and beyond the normal high water line.” She stated it is a public water body to which they have a sovereign land lease; it clearly states in their permit and the permit from the Corps of Engineers that, “no attempt shall be made to forbid the full and free use of the public of all navigable water”; and it also says, “anyone desiring to submit a protest based on the proposition that the proposed work would unreasonably interfere with public navigation and the public’s navigable capacity of said waterway would submit such a protest in writing.” She stated the critical question, not only whether it is a canal, is the issue of private or public; and clearly this is not private, it is public sovereign land; and the applicant does not have ownership of the water; he has a sovereign land lease that allows him to use certain parts of that to put in docks; but it is not a private water body. She noted that is demonstrated in the permits that were issued for the project.

Commissioner Carlson inquired if the Board knows they have leases, bulkheaded areas, and dredged submerged lands, does that imply ownership in any way or the lack of ownership; with Mr. Knox responding it does not imply ownership, it implies permitting from the State because it is State lands. Commissioner Carlson inquired if it is permit over a lease; with Mr. Knox responding affirmatively.

Commissioner Pritchard stated in the letter from Mr. Amari to Conrad White, he states, which he said at the podium, the water along where the bulkhead lies meets the definition of a canal set forth in Section 62-3661 of the Code; and canal as defined in that section, means “manmade channel, which conveys water and which may be used for navigation.” He stated they have a lease; it is their property to use; others cannot use that property; so they have the right to exclude others from using the property, which is the same as the analogy used of renting a house, where the person does not own it but has possession of it and the right to exclude others from the property. He stated they have that right in the area; there are many areas of the Indian River Lagoon that are not navigable; that would exclude the part, “may be used for navigation”; permitted dredging occurred; and they have a lease of the sovereign land. He stated it is a manmade channel they created through dredging; and by definition that is a canal.

Commissioner Carlson stated the “conveying water” nips it in the bud in terms of whether it is a canal or not; the ownership issue is curious because submerged lands are public waters; and inquired how do they keep people off leased property. She stated there is a lot of leased submerged property in the County; and inquired how is that really affected; with Mr. Knox responding the lease holder has certain rights that exclude other people from exercising those rights, so there is a private interest in holding a lease. Commissioner Carlson inquired if the public can travel on that water freely; with Mr. Knox responding not necessarily, as it would depend upon what the lease says. Commissioner Carlson stated they cannot keep the public off those waters, so there is a conflict. Mr. Knox stated the Board is wrestling with the definition of private as it applies to this particular set of circumstances; if people can use it for boating and navigation, then it may not be private in a sense that it excludes people from that particular use; but it may be private in the sense it excludes people from other kinds of uses.

Assistant County Manager Stephen Peffer advised this public hearing is styled as a challenge to staff’s interpretation; and in reviewing staff’s work, he agrees with them that in essence they are making a distinction between what they would commonly refer to as a canal and what they would refer to as a channel. He stated most citizens, when they think of canal, would think of such things as the Erie Canal or Suez Canal, or even the Barge Canal, which is clearly an excavated cut for navigational purposes; and that would be distinct from something such as a channel in the intercoastal waterway that runs down the Indian River. He stated staff would not be thinking of that sort of channel as a canal; therefore, those upland things that apply in the Code would not apply in the sense of a canal to something like a channel in the intercoastal waterway. Mr. Peffer advised because it is a challenge to staff’s interpretation, it has precedent setting ramifications; if the Board wishes for staff in the future to look at channels as canals, then they would take that guidance from this hearing; and if the Board believes that the navigational conveyance is not a canal, then staff will continue to interpret the Ordinance as they have in the past. He stated what staff has determined with this project is consistent with past determinations on similar projects. Commissioner Pritchard stated it might be consistent with previous interpretation, but it is not consistent with Section 62-3661 of the Code; and if staff is going to interpret something, then they need to have a standard to go by.

Chairperson called for a motion to support staff’s interpretation or not support it.

There being no further comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to uphold staff’s interpretation and deny the appeal for Island Pointe PUD Final Development Plan. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR
ISLAND POINTE PUD

Chairperson Colon called for the public hearing to consider a request for determination of vested rights for Island Pointe PUD.

Attorney Richard Amari, representing Towne Development of Island Pointe, Inc. and Indian Cove Marina, Inc., advised he is here on a claim for vested rights, which the Code provides for under Section 62-507, recognizing equitable principles adopted by the courts of this State; and in order to get vested rights, there must have been some act or omission of government, and they must have relied on that act or omission and made a substantial change in position or incurred excessive obligations and expenses. He stated their claim is based on (1), Natural Resources failed to raise specific objections to the asphalt surfaces during the preliminary development plan process, thus failing to determine that the preliminary development plan was inconsistent with the County’s plans and policies as the Code requires; and (2), the Planning and Zoning Office failed to provide the Natural Resources Office with the revised plans as the Code requires. He stated had the Zoning Office provided the revised plans to the Natural Resources Office, perhaps it may have seen that they had asphalt within the 25-foot buffer and brought to their attention that they felt it violated the terms of the Code. Mr. Amari stated Planning and Zoning also wrongly assumed they had complied with the Code; that the area of the lagoon, because it was bulkheaded, was proper; and staff said to the Board in its report that they assumed his clients complied with Natural Resources’ request, but apparently they were wrong as the Board now has told them; so that was an omission. He stated the Board approved their preliminary development plan with knowledge that the asphalt was located along the green areas; they have it highlighted clearly within the 25-foot protection buffer; and the Board had the statement from Natural Resources that there should not be the surfaces within the 25-foot area in its Zoning review worksheet at the time it approved it. He stated that is what their claim is based on; and at this time he would like to call his first witness Joyce Gumpher.

Mr. Amari asked Ms. Gumpher numerous questions to which she replied she is a Project Coordinator with Allen Engineering, has a pre-engineering degree, and has worked at Allen Engineering for 30 years in the Engineering Department, and she took the preliminary development plan for Island Pointe through the application and review process with Planning and Zoning for rezoning and waivers. She replied she read the applicant’s memorandum of law that was filed in support of this claim; with the exception of the statement regarding review #2 through Natural Resources of the buffer area at that time, which was not brought to their attention at the beginning of the process, the facts stated in that memorandum are true and correct; and she submitted 18 sets of plans to the Planning and Zoning Office. She responded the Planning and Zoning Office sent back to her by cover letter dated March 30, 2001 comments of the reviewing agencies within the County; she received comments from the Natural Resources Management Office as part of those comments; and she noticed generic comments about the 25-foot shoreline protection buffer and called the County and spoke to Chris Eber. She stated one of the concerns was that the building and swimming pool deck was within the 25-foot buffer area; and she moved the buildings and pool deck out of that buffer. Mr. Amari inquired if Ms. Gumpher asked Ms. Eber what part of the plan violated the buffer area; with Ms. Gumpher responding yes, and was told building #2 and the swimming pool deck, so she moved them out of the shoreline buffer on the north side along the river. Mr. Amari inquired if Ms. Eber pointed out that the asphalt surfaces violated the shoreline buffer; with Ms. Gumpher responding no, she did not. Mr. Amari inquired why Ms. Gumpher did not ask if the asphalt violated the shoreline protection buffer; with Ms. Gumpher responding in reading the Ordinance pertaining to stormwater protection, the intent of that Ordinance is to protect a vegetated shoreline protection buffer; she has worked on many similar projects for years; and she had never intended to change anything along the bulkhead. Mr. Amari inquired if Ms. Gumpher did not envision that the bulkhead was within the statute; with Ms. Gumpher responding no, because there is a boat dock, it was totally bulkheaded, and there was no vegetation or stormwater directed into those areas. Mr. Amari inquired how did Ms. Gumpher respond to Natural Resources’ comments that pointed out there was a 25-foot buffer area; with Ms. Gumpher responding she relocated the building and pool deck outside of the buffer area. Mr. Amari inquired if that response was part of her comments and revised submittal of additional 18 sets of plans that went back to the Planning and Zoning Office; with Ms. Gumpher responding that is correct. Mr. Amari inquired when she gave the revised comments to the Planning and Zoning Office, did she believe that office would redistribute them to the reviewing agencies, including Natural Resources; with Ms. Gumpher responding yes, that has been the standard practice in the past. Mr. Amari inquired if Ms. Gumpher was aware that the revised plans were not delivered by the Natural Resources Office to the Planning and Zoning Office because they apparently improperly believed there were no violations of the 25-foot buffer any longer; with Ms. Gumpher responding yes, but she was not aware they did not redistribute the plans to any of the departments after her response.

Chairperson Colon advised Mr. Amari his time was up. Mr. Amari stated there are cards for Ms. Gumpher and others. Chairperson Colon advised Ms. Cody and John Grandlich each have five minutes. Mr. Amari stated Ms. Gumpher has a card, and he intends to use a part of his time in the questioning of witnesses for vested rights. Chairperson Colon advised Mr. Amari that he should have said that in the beginning; he only has five minutes left of his time; and inquired who would he like to give it to. She stated Mr. Amari spoke for ten minutes; she has a card from Ms. Gumpher for five minutes; and she would like to go to the next speaker, or Mr. Amari can give his time to Ms. Gumpher. She inquired if that is what Mr. Amari wants to do. Mr. Amari stated he has five minutes left and Ms. Gumpher has five minutes. Chairperson Colon stated Ms. Gumpher has used her five minutes because Mr. Amari did not state whether it was his five minutes or hers; and if he gave her five minutes, he does not have time to rebut. Mr. Amari inquired if he had spoken ten minutes; with Chairperson Colon responding yes, and has five minutes left. Mr. Amari stated then Ms. Gumpher should have five minutes also. Commissioner Pritchard stated the Board has an option of extending the time and granting another ten or fifteen minutes. Mr. Amari stated his problem is vested rights determination is a quasi-judicial procedure; he has to put on witnesses and provide testimony as the County Code requires; and he has to put the testimony on for the Board’s determination because without it, it would violate their due process rights. Chairperson Colon advised that is correct, but Mr. Amari was also aware he had 15 minutes and each person had 5 minutes; and she would like to know how he would like to do that. She inquired if it is Mr. Amari’s or Ms. Gumpher’s five minutes that is being taken up right now; with Mr. Amari responding Ms. Gumpher’s.

Commissioner Carlson inquired if Mr. Amari is allowed to talk to the person who is given the five minutes as he is doing right now to get Ms. Gumpher’s testimony; with County Attorney Scott Knox responding it is her five minutes and she can have Mr. Amari ask her questions.

Commissioner Scarborough stated the purpose of the time limits is to keep the meeting moving and not as to the matter of who was there and how the presentation takes place; so he does not have any problem with Mr. Amari asking questions as long as they do not exceed the total time.

Commissioner Pritchard stated this is an issue of vast importance; it is a multimillion dollar project that could involve the County in litigation, depending on how the Board votes today; and he would rather spend an extra 10 or 15 minutes this morning to resolve some of the issues rather than initiate some type of legal action in the future.

Chairperson Colon stated the Board has to go by how many minutes each person is allowed; after they have spoken, he has an opportunity to bring them back; the Board wants them to keep their time; and Mr. Amari was fully aware of how many minutes he was able to have. Mr. Amari stated he did not understand what was being said and was just trying to clarify it. Commissioner Carlson stated the next five minutes is Ms. Gumpher’s time.

Mr. Amari inquired, during the review process, did the Planning and Zoning Office indicate that there were several provisions of the preliminary development plan that failed to comply with County Regulations such as breezeway requirements, building height restrictions, project density restrictions, and PUD perimeter setback requirements; with Ms. Gumpher responding yes, they did. Mr. Amari asked Ms. Gumpher when staff acknowledged there were parts of the plan that did not comply with County regulations, did they require her to specify those parts on the plan so they would be brought to the attention of the Board for its approval process; with Ms. Gumpher responding yes, she had to do a detailed itemized list of every item that did not comply. Mr. Amari inquired did she believe the Planning and Zoning Office identified all compliance issues that were required to be addressed by the Board; with Ms. Gumpher responding yes. Mr. Amari inquired after the County approved the preliminary development plan and PUD zoning in May 2001, did Ms. Gumpher immediately proceed to final engineering and final development plan approval; with Ms. Gumpher responding yes, she did. Mr. Amari inquired after completing the final engineering and development plans, did Ms. Gumpher attend the pre-application meeting with various members of County staff to review the final development plan before submittal for approval; with Ms. Gumpher responding no, but she made department calls, and had a pre-application meeting with all the staff on the final engineering. Mr. Amari inquired if a staff member from Natural Resources was present at that meeting; with Ms. Gumpher responding yes. Mr. Amari inquired was the plan presented with the asphalt located where it is currently; with Ms. Gumpher responding correct, they had the overall site plan. Mr. Amari inquired did Natural Resources raise any objections at the meeting to the location of the asphalt where it existed; with Ms. Gumpher responding no, they did not. Mr. Amari inquired as a result of that meeting, did Ms. Gumpher then move forward and apply for final development plan approval; with Ms. Gumpher responding yes. Mr. Amari inquired when was Ms. Gumpher first advised that the asphalt surfaces violated the 25-foot shoreline buffer; with Ms. Gumpher responding during the second review process. She stated when she submitted the final engineering plan, she got staff comments; she responded and resubmitted the plan; staff reviewed it again and had additional comments; and it was at review #2 that Natural Resources specifically stated the pavement violated the 25-foot setback. Mr. Amari inquired if Ms. Gumpher is able to comply with all the comments of other reviewing agencies to meet the requirements of the Code for final development plan approval at this time; with Ms. Gumpher responding yes. Mr. Amari inquired if this is the only thing that stands in the way; with Ms. Gumpher responding it is the only thing that is outstanding. Mr. Amari stated he has no further questions, but would like to call John Grandlich as his second witness.

Mr. Amari asked Mr. Grandlich to state his name and address; with Mr. Grandlich responding John Grandlich of Cocoa Beach, Vice President of Towne Development of Island Pointe. Mr. Amari inquired what type of experience does the company have in building comparable projects; with Mr. Grandlich responding they have been in business over 53 years, and over 25 years in Brevard County; so they have been doing this type of development in this County for a long time. Mr. Amari asked Mr. Grandlich if he read the memorandum of law attached to the claim and if to his belief and knowledge the facts stated in that memorandum are true and correct; with Mr. Grandlich responding yes. Mr. Amari inquired if Mr. Grandlich made a determination how relocating the asphalt surfaces outside of the 25-foot shoreline buffer would affect the project; with Mr. Grandlich responding it would significantly impact the project; it would be very difficult to get access to the westerly building in Phase 1 which has 27 units without the driveway; therefore that building would likely not exist based on the current plan. Mr. Grandlich stated in addition, in Phase 2, there are approximately 16 units they would lose as well as the parking for the commercial marina; the loss of any unit to this project is very significant from a development standpoint; so by loss of those units, based on their preliminary analysis, the project would be significantly impacted. Mr. Amari advised Mr. Grandlich stated he would lose a total of 41 units, but if they lost the commercial parking at the bottom of the project, they would lose the commercial use, which is the basis for the PUD; and inquired if he kept the mixed use, would he lose even more units; with Mr. Grandlich responding absolutely, because they would lose 16 parking spaces which is an additional eight units. Mr. Amari inquired if they would have to take a loss of 49 units to comply with the setback; with Mr. Grandlich responding that is correct. Mr. Amari advised Mr. Grandlich filed an affidavit in support of this claim; and inquired if the facts stated in that affidavit are true and correct; with Mr. Grandlich responding yes. Mr. Amari stated the affidavit discloses that almost $1.7 million have been spent on land acquisitions; and inquired if the contracts to acquire that land were contingent on preliminary development plan approval; with Mr. Grandlich responding yes, they were. Mr. Amari inquired if Mr. Grandlich would have gone through with the purchases if he did not have the approval of the preliminary development plan in the fashion that he has it; with Mr. Grandlich responding absolutely not. Mr. Amari inquired if he would have paid what he did for the land if the project density was reduced by 49 units; with Mr. Grandlich responding no, they paid a premium for the land based on the Board’s approval. Mr. Amari inquired if Mr. Grandlich demolished existing trailers in reliance on the lack of objection by staff and approval by the Board of the preliminary development plan; with Mr. Grandlich responding yes, they did. Mr. Amari inquired if the trailers were income producing; with Mr. Grandlich responding yes, they were located on a portion of the property and had been existing there for quite a few years. Mr. Amari inquired if Mr. Grandlich would have expended over $600,000 in development costs if he knew he could not develop the project in that fashion; with Mr. Grandlich responding no, he would not have expended those funds, which are close to $2.25 million since the approval. Mr. Amari inquired when did Mr. Grandlich first have knowledge that staff claimed the asphalt surfaces violated the 25-foot shoreline protection buffer; with Mr. Grandlich responding approximately six weeks ago during the second submittal of the final site plan to the Planning and Zoning office. Mr. Amari inquired if the project is approved, when would he break ground and commence construction; with Mr. Grandlich responding he would hope, if they received approval today, that within the next six months they would start construction. Mr. Amari stated he has no further questions.

Mr. Amari advised the equitable principles of vested rights adopted by the court in essence require fair play; and read a provision from case law recognizing vested rights, “Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced to stand thereon. A citizen is entitled to rely on the assurances and commitments of the zoning authority and if he does, the zoning authority is bound by its representations whether they be in the form of words or deeds. Town of Largo v. Imperial Homes Corp. 2nd D.C.A., 1975.” He stated Section 1448(b)(4) of Chapter 62 requires the Planning and Zoning Office and the other agencies to determine the consistency of the preliminary development plan and policies prior to submission to the Board; it is not the developer’s obligation to determine consistency; the Code says staff is required to do so, which makes sense since they make the rules; and people try to comply but look to staff to tell them if they are complying. He stated it says County Planning and Zoning and other agencies have to determine whether the preliminary development plan is consistent with the County’s polices; and the Board has determined that they are not. He stated the problem is County staff did not determine that they were not in compliance; the Planning and Zoning Office thought they were in compliance; and read staff’s note, “The revised PDP as packaged and presented to the MIRA. Planning and Zoning staff reviewed the revised planning development plan, which moved structures away from the shoreline that covers the northwestern boundary of the site and was not aware that Office of Natural Resources Management would view the interior of the marina as an area that would also be required to respect the 25-foot shoreline protection buffer.” Mr. Amari stated it seems as though staff made the same mistake they did, they read the Code plainly; but it turns out that was a mistake; therefore it is the responsibility of the departments to tell the developers if their plans do not comply with the County’s policies and procedures. He stated six specific instances were spelled out on the plan, and they addressed those, as Commissioner Higgs had a problem with some of them. He stated building heights, breezeways, densities, and setbacks were specifically called out; because they could not comply with the provisions, they had to come to the Board to address those; yet nobody ever mentioned to them that the asphalt could not be located there. He stated they spent over $2 million to get where they are; and there was clearly an act or omission on the part of the County. He stated the Board approved the plan; and in reliance on that approval and the omission, they spent the money and went forward. He urged the Board not to lose sight of the importance of the project to MIRA; stated the Board has to remember the problems they had with drugs, prostitution, and crime in the area; and the project will do a lot to improve the area and even bring in sewer service. He noted they have gotten calls from other property owners waiting to tap into their sewer line; so the whole area can explode with the kind of growth MIRA needs, which it has not had for years; it is good for the public interest; they should not be penalized at this late stage; and urged the Board to recognize their vested rights and let them go forward to build the project.

Planning and Zoning Director Mel Scott advised Mr. Amari did a nice job framing the point upon which he is basing his vested rights claim; the preliminary development plan, which accompanies a PUD rezoning request is an opportunity for the applicant to hear from staff on whether or not there are any deal breakers for the project; and typically they encourage applicants to use the PUD process because it gives the County a better product, but in doing so, they also recognize that by requiring the level of detail that a site plan approval would require is also asking an applicant to bear upfront costs with the uncertainty regarding whether or not the applicant will get the rezoning. He stated staff is caught in the posture of wanting to get the applicant’s preliminary concepts on the table for the Board’s consideration as part of the PUD request, but not extracting from them in every instance the level of detail that will ultimately get them site plan approval; and that is why this process has extracted from the applicant certain things upfront that the Board was able to consider in granting the rezoning request. He stated certain departments were able to recognize, regardless of what the proposal is, if they wanted additional height, they might as well ask for it as part of the PUD approval; and if they wanted waivers to breezeway requirements, they should have the Board entertain that as part of its approval; so when it came to this particular point, and this is one of those things where a fairly small detail has great consequence, what they were seeing is a process that by and large requested the applicant to provide conceptual plans but failed to bring to the surface a detail that now is of utmost importance to the applicant, and that is whether or not the 25-foot buffer not only extends along the northwestern boundary of the lagoon, but also to the interior of the marina area, which the Board has determined it does. He stated the applicant has framed the issue appropriately; and the Board needs to consider whether the vested rights should be granted. Mr. Scott advised the Planning and Zoning Office does not resubmit or re-circulate all revisions to preliminary development plans because at some point of the process they are on their own deadline as the applicant hopes they would maintain, and that is getting the proposal to public hearing. He stated there is a circumstance where a process that hopes to get conceptual approval was in fact relied upon greatly by the applicant to the point where he was hoping to have details such as this one worked out as well; and the process clearly did not flush that out. He stated the Board, in considering whether or not to grant the vested rights, is called upon to weigh the inability of the process to flush out this very important detail, and whether or not it is great enough for the vested rights claim to be granted.

Commissioner Carlson inquired if any part of the complex process was compromised by submitting a more thorough site plan as the applicant did; with Mr. Scott responding in some regard yes, but that is the calculated risk they see applicants in general taking. Mr. Scott inquired at what point do applicants need to provide the Board with the details necessary to get the approval; stated the Board had some PUD approvals come forth that were covering much greater land area that just provided conceptual bubble plans, which said in this quadrant of 20 acres they will have one unit per acre, in this general area they are proposing two units an acre, to the interior they are proposing some commercial use, and the PUD allows them to go to BU-1; so in this instance, the applicant assumed, and it is a calculated risk that is made, that greater detail would be required; so the preliminary development plan marked closely what staff would typically see in a site plan. He stated in the final analysis, the preliminary development plan process is not to extract that; and that was something that was offered. Commissioner Carlson stated one of the testimonies regarding objections to the asphalt driveway was pointed out by staff; and inquired if review #2 was done prior to the Board’s approval; with Mr. Scott responding yes, if Commissioner Carlson is referring to the comment that was made that they needed to respect the 25-foot setback. Mr. Scott stated that comment was made as part of the first submittal; they responded to it as part of their second submittal; but if Commissioner Carlson is referring to the asphalt driveway, that showed up as part of the pre-application conference that happens after the Board’s approval. Commissioner Carlson stated the zoning item of May 7, 2001 gives a lot of staff explanation and offers their comments; and the last page of that is from the Office of Natural Resources Management and states the site is located in the 100-year floodplain and is not subject to density restrictions, development must observe a 25-foot setback landward of the mean high water line, and no encroachment of development is allowed within the buffer except for shoreline access. She inquired if that comment may have led the applicant to assume it was okay to have the asphalt driveway there; with Mr. Scott responding the applicant has represented that a misconception here was what portions of that property needed to respect the 25-foot shoreline buffer; and their claim is they only needed to respect that buffer on the northwestern portion of the property; so upon receiving that comment, they, in their second submittal, before the Board saw the preliminary development plan, pulled back buildings and impervious areas that were surrounding the pool from that portion of the property. Commissioner Carlson inquired if they changed anything having to do with the asphalt driveway; with Mr. Scott responding no, they did not change anything in the interior of the property because they assumed the Class III waters stopped at the northwestern boundary of the property; and did not include the marina. Commissioner Carlson stated she does not see comments from Stormwater; they talked about vegetated shoreline protection and implications in terms of stormwater; and inquired if there are comments from Stormwater; with Mr. Scott responding at some point in the process, they did let Stormwater know that because of the fact the applicant was proposing so much impervious surface on the site, that it appeared the traditional retention methods that they see in ponds would not work on the site. He stated the applicants were put on notice up front before the PUD approval that they would need to do some very highly-engineered and detailed surface water treatment things, which is diverting some of the water under the buildings for percolation in that manner as opposed to the traditional ponds when land is more abundant.

Commissioner Higgs advised the action the Board took was zoning; and inquired if zoning vests someone with the right to develop; with Mr. Scott responding no, it does not. Commissioner Higgs stated zoning does not vest someone with the right to develop; and even in the zoning hearing, reading the comments from Mr. Amari, he stated if the Board gives its approval tonight, the developer would know he has something to work with and would be willing to take the risk from that point on and close on the property. She stated it was recognized by the applicants’ attorney that this was the beginning and not the end; it did not vest them, it gave them something to work with; the Board did deal with more specifics than it would normally in a zoning hearing; and there is a lot of discussion in the Minutes about specific things that were being packed into the project in terms of the waivers and what the Board was dealing with that night. She stated the final determination on whether this project, as it currently is designed, is vested is that it was not vested at the zoning hearing; it never is vested in zoning hearings; and the Board does not review site plans, and the items being discussed are site plan issues which the technical staff does and not what the Board does. She stated this is not a vested right that the applicant has for the project.

Commissioner Pritchard stated the interesting thing about the process is that Brevard County has become a community where second-effort denial is becoming the way of conducting business; he disagrees with that; and the calculated risk that was taken was only taken after the inference of Board approval, which provided them an acknowledgment to go ahead with the project. He stated it is a multimillion-dollar project; the applicant has spent over $2.25 million on it so far; staff may have missed the issue about the parking along the driveway along the seawall; and if so, then staff missed it. He stated it is not a vegetated shoreline buffer; the condition of the property at this time is that the income producing aspect of it has been destroyed; the developers had to pay additional fees of $1,105 to come back before the Board; and while in the great aspect of the cost of the development that might not sound like a lot of money, it is an insult to charge someone an appeal fee to come back on something that was missed in staff’s approval process. Commissioner Pritchard stated there is no precedent that is going to be set by approving this item because there are not many other waterfront developments with submerged land leases and literally the rights to the area; however, many others already have a dredged canal, so he does not buy off on the issue of precedence being set. He stated the applicant paid a premium for the property; all through the process, he was given the determination that the property was going to be developed to its full and best use; and if they are not able to put in the buildings as prescribed, they are not going to be able to build the project, which clearly is something that is desirous of MIRA. He stated the neighborhood can certainly use the boost; that is what will happen; it is a prime location; it is one of the issues he spoke about on numerous occasions; they need to redevelop blighted areas before cutting down more green spaces; and this is a blighted area that needs to be developed.

Commissioner Scarborough stated he has more questions than answers at this point; he may be able to arrive at some conclusion after asking a lot of questions here; but there are numerous time certains and an executive session; therefore, he will move to table the item to get additional information.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to continue the public hearing on a request for determination of vested rights for Island Pointe PUD until December 17, 2002. Motion carried and ordered unanimously.

REPORT, RE: TIME CERTAINS

Chairperson Colon reiterated and described the items for time certains at 10:00 a.m., 10:30 a.m., and 1:30 p.m. and executive session is at 11:30 a.m.; and advised each speaker will have five minutes to address the issues.

APPROVAL OF REQUEST FOR PROPOSALS, RE: PERFORMANCE REVIEW OF
PROPERTY APPRAISER’S TANGIBLE PERSONAL AND COMMERCIAL PROPERTY
ASSESSMENT METHODOLOGY

Thelma Roper with the Center for Civil Rights Advocacy, stated they heard about the audit issue at the last minute and were surprised to get calls about it; however, they are in support of an audit. She stated it is an issue that is on the tongues and in the minds of people in North Brevard; it is severe for people on fixed incomes, senior citizens, and the disabled; and that should not be overlooked. She stated the audit is necessary; and she hopes the Board will go ahead with it.

Doris Brong, representing Lakes of Melbourne Homeowners Association, advised the Florida Statutes, Florida Constitution, and Constitution of the United States, plus the elected officials are here to protect citizens from unfair practices; the Property Appraiser and Chief Deputy Property Appraiser have overstepped their legal rights with an increase of 200 to 300% of assessments on all manufactured homes on leased land; and the Property Appraiser keeps comparing mobile homes on leased lands to real property, condominiums, and the taxes they pay. She stated there is no way they can compare to those that have caps on assessments and homestead exemptions; they do not have any of those concessions; and in fact, their mobile homes depreciate in value each year, which can be verified by realtors, sales offices, and newspaper ads on used mobile homes on leased land. She stated the Property Appraiser has taken Florida Statute 193.11, Part V, which reads, “The cost of the property and the present replacement value on improvements. . .” and used that as his right to the high increase, except he did not take into consideration the rest of that Statute, Part I, which pertains to present cash value, market value of property, etc, and Part A. Ms. Brong stated the attachments are never replaced in their entirety; they may be cleaned, painted, holes taped and leaks repaired, but they are never replaced entirely; and if they had added improvements such as a spa or porch, that would be okay, but anything that is added or replaced in its entirety would have to get a permit and would be on record. She inquired if the window on the shed broke and was replaced, would they be reassessed for the whole shed. She stated from the information she received, the Property Appraiser has used today’s costs for installing porches, sheds, carports, etc.; that is not a fair and justifiable assessment of their property; mobile homes on leased lands have those installations put out to bid; and she is sure the owners took the lowest bid; so there is no way their attachments can be compared to today’s value of attachments to new homes. She stated the Building Codes have changed, therefore they last longer, are much stronger, and the builder and installer must comply with the new Codes to withstand high winds and hurricanes; the Property Appraiser, in the documentation gave everyone a 30% depreciation regardless of age on replacement costs, to arrive at his assessment, which is not fair or right; and if appraisers are allowed to do that, then next year, according to the higher cost of materials, they will be subject to another large increase as nothing decreases in the building industry. Ms. Brong advised she received a letter from the Property Appraiser and part of it says, “owners of mobile or manufactured homes in rental parks have enjoyed conservative assessments on attachments for many years”; in other words, he is saying he does not think they paid their fair share so they can received a new and higher assessment; and inquired if he has that right to personally decide who is not paying enough taxes. She stated they pay their share of property taxes through their leases which amount to $425; their non-ad valorem taxes are $192; mobile home tax is $104; and now their tangible tax is $104, which is a total of $827 per year. She stated until they replace the attachments and are reassessed, they should be assessed on the original cost of the existing attachments; and the Property Appraiser in 1985 must have received notification from the builder or owner of the park because they had the tax assessment within a month of taking possession of their property.

Chairperson Colon advised Ms. Brong her time was up. Ms. Brong inquired if there were any questions; with Chairperson Colon advising her she will be called back if there are questions.

Donna Maxwell, representing Lamplighter Village Homeowners Association advised on September 23, 2002 a letter was sent to Jim Ford signed by Lamplighter Village 1 and 2 Homeowners Associations’ Presidents, which stated, “Dear Mr. Ford. On behalf of Lamplighter Village Homeowners Association, we want to file this protest against the exorbitant increases to the tangible property taxes imposed on our members. We believe as a group that we have been selected to bear the brunt of your office’s effort to raise additional tax revenues. We believe the enormous increases in evaluations of our property were unilateral without input from anyone of knowledge of the values here at Lamplighter Village and arbitrary with no basis of fact. We also believe your use of replacement cost rather than market values is a great injustice to us, especially since the market values are used universally by most communities to assess property valuations. In addition, we believe the exclusion of property owned by manufactured homeowners from the 3% cap used for other property owners is unfair and illegal. The nearly $3,000 needed to file a petition for appeal of these increases on behalf of our residents is unreasonably high and oppressive and constitutes an unfair burden on our senior citizens. It is liken to the poll taxes of times past. The political ploys of your representatives at the public meeting held at Lamplighter Village on September 9, 2002 were disgraceful. To scare the senior citizens with a 300% increase only to lower it to another arbitrary amount was bad enough, but then to further try to buy appeasement with the announcement of the relatively small exemption available to widowers, widows, and the disabled was frosting on a political pie. We think it was disgraceful and a sham that should be exposed for what it was. Most importantly, the tax increases should be rescinded and any increase justified in writing with documented valuation capped at the 3% used for other property owners. It is requested you meet with us and representatives of other manufactured homeowners associations here in Brevard County to further discuss a more equitable settlement of this matter. Thank you for your cooperation and any assistance you may lend.”

John Mercer, Lamplighter Village Board of Directors member, stated he will read the reply from the Property Appraiser’s office addressed to Donna Maxwell, Treasurer and the President of Lamplighter Village 2. “This is in reply to your letter of September 23, 2002. This office takes exception to the assertions in your letter. No increase in property valuations by this office are performed for the purpose of raising additional tax revenue. This is why the County Commissioners and other local taxing authorities have no control over this office. If you felt valuations were arbitrary with no basis in fact, you have every right to file an appeal with the Value Adjustment Board (VAB). Filing fees are not established by this office. One option would have been to file petitions on only a few properties to determine if your opinions are supported by the independent appraisers hired by the VAB, which could have an identical view indicated for the park as a whole. By State law, the 3% cap on the annual assessment increases can only be applied to properties, which are qualified for a homestead exemption. Mobile homes in rental parks do not qualify for the homestead exemption. One must own both the land and the mobile home to qualify. Replacement costs are not the only approach to value used by my staff, but it’s the primary method for valuing tangible personal property. We have analyzed limited rental parks sales data, the valuation of similar attachments, which we have considerable market data, and the listing prices for units in rental parks. All of these were considered in spite of your continued use of the term arbitrary. Our efforts to inform you of the law for widows, widowers, and disability exemptions are efforts to be as fair as possible, giving every recognizable benefit regarding depreciation allowance, are mis-characterized as appeasement, in this case political ploys. Considering the tone of your letter, your continued disagreement with your valuations, failure to appeal to the VAB, and asking this office to illegally apply a 3% cap, I am of the opinion the meeting that was held at your park on September 9, 2002 is sufficient and no further meeting is warranted. This office met with representatives of other manufactured homeowners associations on September 16, 2002 at Swan Lake Mobile Home Park. Sincerely, Jim Ford, CFA.” Mr. Mercer stated they live in a mobile home park that is quite old and is on the way down, not up; the values are becoming worth less and less; some of the replacement values on the sheds are being assessed higher than the mobile home unit is worth because they are selling very cheap; and they cannot be worth more, and should be worth less. He stated the appreciable item is wearing out; the bolts are falling out; screens have to be replaced; but according to Mr. Ford’s office, the Board cannot do much to help them; but the Commissioners are their representatives and should know how they feel about this. He stated they are being taken advantage of; many elderly people cannot afford this increase even though it is very small dollar-wise, to some of them it is the difference between eating and not eating; and the Board has an obligation to help support them in this effort.

Ernest Newsome from Lamplighter Village stated the Property Appraiser’s replacement costs are not reflective of real values and are inequitable to them; he has an elderly sister who lives two doors from him; her original sale price for the property she bought was $32,000; and that included the attachments; however, they were able to purchase the property for $28,000, so at that time the real market value was $28,000. He stated they estimated the dwelling at being a minimal of 90% of the cost with the attachments being a maximum of 10% or $2,800; the Property Appraiser last year appraised those things at $1,900; this year they increased it to $3,280; and now if they look at the real value of her property, it is no longer worth $28,000, based on sales he will present to the Board. He stated her property value today is more like $10,000; the dwelling being $9,000 and the attachments $1,000, based on recent sales. Mr. Newsome stated in 1986 his brother purchased a home there of comparable size three or four blocks away for $10,000; and his dwelling they estimate at $9,000 and the tangible personal property at $1,000. He stated he purchased a unit two doors from his sister’s home in 1999 for $3,500; it was a repossession and extremely low priced; but if the 90% and 10% are applied, it would put the tangible personal property at $350. He stated a neighbor across the street from his sister’s home also purchased a repossession at the price of $3,500; and more recently in 2001, a neighbor across the street from his brother purchased a home for $15,000 furnished. Mr. Newsome stated the estimated value of the furnishings was at least $5,000, so he actually paid $10,000 for the home; and that would be $9,000 for the dwelling and $1,000 for the tangible personal property. He stated last year, Mr. Ford’s appraisal for his property was $1,340; this year it increased to $2,530; and that is almost 3/4ths of what he paid for the facility. He stated he realizes they did some estimates with the 90/10, but they are far more representative and accurate than the Property Appraiser’s estimates. He stated when the issue came out about appraisals, he did not receive an assessment from the Property Appraiser’s office although he lived there more than two years; he went to the office in Melbourne and was put on a phone with a lady in Titusville; and when he talked to her, she advised him their records had not been updated in two years and that is the reason he did not receive a notice of assessment. He stated the information is very important; and something should be looked into so that this matter can be more equitably distributed among the taxpayers.

James Kratzer of Palm Bay stated he moved to Florida recently, does not live in a mobile home park, and is not affected by the tax increase, but he had the privilege of being here for the elections; and during the campaign speeches he heard on television, the main thing all the way from the Governor down, was on helping the elderly. He stated it is obvious that most of the people here speaking today are elderly and retired; and after the elections, the County turned around and appraised their attachments from 100 to 300%. He stated another thing that worries him is he bought a home in Palm Bay; his property is assessed and he is taxed on appraised value, which is much lower than replacement value; the people who live in mobile homes and have attachments are being appraised on replacement value; and there is no state or county in this Nation that taxes people on replacement value of any property. Mr. Kratzer stated he is from South Carolina where they have taxes on autos, boats, property, etc.; he bought a Cadillac in 2000 and the appraised value was $50,000 so he was taxed on $50,000; but in 2001 and 2002, those taxes came down as the vehicle depreciated. He stated it scares him to think the Property Appraiser is getting away with taxing people who live in mobile homes on replacement values; and inquired how long will it be before his home is taxed on replacement value. He stated everyone stood on soapboxes saying help the elderly; some of the people cannot afford prescription drugs or food; but the County is raising their taxes by 300%. He noted a letter from Mr. Ford said the Board of County Commissioners had no jurisdiction over him, but he believes it does as the Property Appraiser has an office in this building; and 300% tax increase on a shed, driveway, and carport is absolutely ridiculous.

Attorney Joe Caruso, representing Brevard County Property Appraiser Jim Ford, advised Mr. Ford is at a Department of Revenue meeting in Orlando and asked him to appear on his behalf and answer any questions the Board may have and to make a brief presentation. He stated all the speakers spoke on the topic of mobile home attachment rates; the Department of Revenue reviewed the mobile home attachment rates and verified that they were correct; and the special masters for the VAB that considered the petitions filed by mobile home owners challenging the correctness of the rates for their attachments, upheld the Property Appraiser in every single case. He stated the Legislature has determined that the property appraisers of the State have the responsibility to determine the fair market value of property in the counties; the Legislature, by virtue of Florida Statute 193.011, has said those are the criteria the Property Appraiser must consider to arrive at fair market value; and the property appraisers must consider all the criteria, but have complete discretion to determine what weight would be given to each of the criterion in determining the fair market value and assess it thusly. Mr. Caruso advised the protection the homeowner, landowner, or taxpayer has is the right at any time he feels his property has been mis-assessed, to request a conference with the office of the Property Appraiser, tell him what he thinks there is wrong, and why he is right; he has a right to file a petition with the Value Adjustment Board and have a special master consider his argument and his position with regard to the propriety of his assessment; and if he still is not satisfied, he has the right to file suit in the circuit court and have a circuit judge hear the case and make a determination as to the correctness of his assessment. Mr. Caruso stated the Legislature has determined that it is the Department of Revenue that has the responsibility to determine that the Property Appraiser is doing what he supposed to do in the manner he supposed to be doing it. He stated the Department of Revenue is the watchdog that determines whether or not the Property Appraiser is meeting his statutory and constitutional requirements with regard to assessment of property; and the Department of Revenue is the exclusive body that has the right to do that. He noted that is the legislative determination; and if the Board disagrees with that, it needs to go to the Legislature so the Legislature can change the law and give someone else the authority to have review power over the property appraisers. He stated Mr. Knox, who he has great respect for even when they disagree, will tell the Board, in every case in this State where a circuit judge has conducted a trial of an assessment issue of a property appraiser and found the assessment invalid, the appellate court has reversed the decision. He stated what that says is the courts of this State do not have the authority to substitute their judgment for the property appraisers. He stated if the courts do not have the authority to substitute their judgment for that of a property appraiser, certainly this Board does not have that authority; no other body has that authority except the one the Legislature has given that authority to; and that is the Department of Revenue. Mr. Caruso stated he understands as elected officials it is the function of the Board to hear the taxpayers and their views; but there are certain circumstances where the system itself has got its own checks and balances; there are certain remedies and rights; and in this case, he respectfully submits to the Board that it does not have any right, as the Attorney General said in Opinion 2-29, to do a performance audit of the Property Appraiser’s office. He stated asking for a review of some commercial methodology and taxable personal property methodology, regardless of the semantics used, is exactly what the Board is trying to do; it would be conducting a performance audit; and he can tell the Board what is going to happen if that happens. He stated there is going to be litigation between the Board of County Commissioners and the Property Appraiser’s office; the Department of Revenue will intervene and the courts are going to decide whether or not the Board has the legal right to do what it is attempting to do; and then based on that court decision, the party that is unhappy with it will take an appeal. He stated it is going to be involved in the legal system for quite a while and is going to be expensive for everybody; and inquired what is to be accomplished by that expenditure of the taxpayers’ money. He stated with all due respect, he would suggest the Board does not have the authority, as the Attorney General has said, to attempt to second guess the Property Appraiser or have someone on its behalf second guess the Property Appraiser and substitute its judgment for his.

Walter Pine, Executive Director of the Center for Civil Rights Advocacy, advised they received a number of phone calls as a result of the TODAY Newspaper’s story; the issue is whether or not the Board will request an audit; the legal representative argued it does not have the authority to do so; but he would argue that the Board does have the authority. He stated the Board is liable for any discriminatory behavior that is taken by its tenants; under the ADA, it specifically states, and it is explicit, that if the Board provides substantial aid, which housing would be a substantial aid, to anybody who has discriminatory practices, it is liable. He stated there is no doubt about that law; so if the Board is liable, it has some oversight responsibilities as well. He stated the people have spoken about the tax increase of 300%; the important thing they need to consider is it specifically impacts the elderly and those people who cannot afford $60,000 and $80,000 homes; if they could, he is certain they would not be living in trailers; so here is a situation where this significantly impacts a portion of the people in the County who are least able to argue about it. He stated they do not have the money to go to court; and what they are asking the Board to do is audit the procedures, policies, and situation with the Property Appraiser. He stated there have been many reports where one person’s house was substantially the same as another and the appraisals were significantly different; and there have been comments received, but he has not done the proper research yet, from members of minority communities that have stated they have worked to increase or better their community, but the Property Appraiser has not properly updated the tax rolls so home improvement loans and things of that nature are not available to them. Mr. Price stated there are a lot of situations here that are not covered by this particular tax increase; however, this has brought it to light; they are having a public upwelling; and this is the beginning of the upcoming curve. He stated as this impacts people and becomes more widespread, the Board will see more and more people fussing about it; so he strongly encourages the Board to support an audit. He stated the Property Appraiser’s legal counsel said that special masters are available and procedures are available, but he also stated they always rule in favor of the Property Appraiser; that is not what due process was intended to do; due process was intended to be a check and balance; clearly it is not available here; and the constituents of this County have nowhere else to go at this point, especially those who do not have the economics, other than to turn to the Board. Mr. Price stated if the Board is unwilling to help them and do what is necessary to put this question to the challenge, then they have a real problem because there is nowhere else to go; as the Property Appraiser’s attorney said, the courts cannot do anything about it; so there are a number of things that the Board needs to pay attention to. He requested the Board proceed with the audit, and pass a referendum that goes before the Legislative Delegation requesting not only a procedural audit, but a full 100% financial audit as well. He stated if it is determined that the Board does not have the authority, it has taken the steps to protect its constituents and seek their civil rights and protection of their property rights. Mr. Pine stated one of the most basic issues in the Constitution is equality; race, disability, and age, are considered in their own little microcosms; but this particular tax roll change has a significant impact on the elderly, disabled, and those on fixed incomes; and requested the Board think about it as an equality issue. He stated when the Property Appraiser appraises property, there should be equal impact according to property value; and that property value should be consistently appraised whether it is a home in Melbourne Beach, out in the woods, or a trailer. He stated the issue of trailers brings up another thing; in many of the areas of the County where trailers have been grandfathered in, they cannot replace the trailers; if they pull a trailer out, they have to build a house; so that is another issue to consider. He stated the people do not have an escape from this; they cannot afford to build another dwelling or they would not have the trailer; so now they have come to the Board and requested it take what steps it can to protect them. He stated they support the audit and the resolution to request it from the Legislature as well.

Charles Moehle of Cocoa Beach, stated he is speaking as a 40-plus year resident and taxpayer of Brevard County; today’s action is to carry on or issue request for proposals (RFP’s) for a study; it is unwise to do it at this time; the RFP is too broad and seems to be brought about to solve an issue of people who live in trailers and have assessment with attachments, which they consider to be in excess; and the way he sees the proposal, it would cost from $10,000 to a million dollars because it is too broad. He stated the Board needs to zero in on the problem that it is trying to solve; and he is not sure it is solvable or appropriate to have an audit as the Board is proposing to do because it should not be as open-ended as it is. He stated at least three Commissioners have been passing Ordinances that greatly affect the Property Appraiser and cause him to reduce the value of properties; the good example is the commercial and industrial zoning classifications; if they have wetlands, they cannot build in them; and that takes it from a high value to zero value. He stated even those properties with zero value, owners have to fight with the Property Appraiser about it; they cannot get a building permit for that property; but the Property Appraiser still assesses it at $500 an acre and it is practically worthless; so this is a complex issue that the Board has helped to bring about. Mr. Moehle advised he came to Brevard County in 1958 in a 1949 Ford with $200; he lived in a 26-foot trailer that was eight feet wide and the toilet was in the shower; he has been through the whole gauntlet of what is happening in the County, and lived in all kinds of things; but he worked hard and the County has treated him well. He stated this is a complex issue and not an issue that is going to be solved by an audit; the audit being proposed becomes an open ended burden on the taxpayers; it is going to go on and on and on; and it is improper to do an audit at this time until the Board can zero in on the issues that are the real problems. He stated the problem is very narrow and may not be solved this way; so the Board should spend its money wisely somewhere else.

Bea Polk of Titusville inquired if industrial land in Melbourne is assessed the same as industrial land in Mims, and why two buildings of the same size, built in the same year, in equal condition, are assessed differently; and stated those questions can only be answered through the Board. She inquired why does the State require assessments higher in one county than another. She stated every time she asks the Property Appraiser’s office, it is always what the State tells them; she calls the State and that is not the same answer she gets; and if the only place they have to go is to the State, then they are in bad shape. She inquired if Brevard County needs an independent view of all properties; stated they need an independent review of the politicians from the State to the Property Appraiser. Ms. Polk stated the Property Appraiser always says he is elected; he is elected, but he serves all the people, not a few; there are many people whose properties are not the same valuation; and the only way they are ever going to get anything done is to get someone from outside the County to come in and check some of the valuations. She asked the Board to go ahead with the proposal; stated the law is not always made for the taxpayer and common people; and they are not just talking about the trailers, they are talking about everybody in Brevard County. She stated it is hard to get a reduction before a special master; she is surprised after talking to a special master the things they come up with; the paperwork they get is not always accurate; so she would like to ask the Board to please go ahead with this issue. She stated it might cost money, but she has not seen anything good that comes without a cost; and Brevard County needs an independent review of the properties.

Chairperson Colon inquired if the Board gets an appraiser to come in and give it some data, and it contradicts the Property Appraiser, what would the Board do then if the State is not willing to listen to it and the court is saying the Board does not have jurisdiction. She inquired what would Ms. Polk suggest the Board do from there; with Ms. Polk responding if the Board gets the information and the people stand behind the information, the State is going to give in. Ms. Polk stated she guarantees if there are enough people with enough information, something will happen; and until they get it, nothing is going to happen. She stated it is time to do it and get the people behind it; and if the Board gives her the information, she will get it out. Chairperson Colon stated it is not just mobile homes; one Commissioner brought up commercial property from one end of the County to the other; there is a lot to be covered; and inquired what would be a suggestion. She stated Ms. Polk brought this to the Board in the past and that is why she is focusing on her statements. Ms. Polk stated the Board cannot do all the properties, but it can do some commercial and some residential and if it finds something after doing part of it, it can always go and look at more. Chairperson Colon inquired if Ms. Polk would consider the Board putting a committee together to try and get feedback because it is a broader subject than mobile homes; with Ms. Polk responding as long as the committee is formed soon and gets to work because the people cannot handle another year of this; and if the Board forms a committee, she would like to serve on it.

Commissioner Carlson stated she received a paper yesterday that was prepared for the Value Adjustment Board, which was labeled “Support Documentation 2002 Tangible Personal Property Assessments of Mobile, Manufactured Home Attachments and Appurtenances” prepared by Lance Larson who is the Chief Deputy Property Appraiser, dated October 21, 2002; she has not had the opportunity to really review it, but it basically goes through step-by-step how the mobile homes and attachments were assessed and the methodology used at that point; and just reading briefly through parts of it brings up a lot of questions. She stated it talks about calculations in terms of the quality of the attachments and things like that; it talks about superior, excellent, average, above average, whatever, and is subjective; but it has a table of reference in the document, which starts with a base rate that is based on replacement cost of an average mobile home and then it is multiplied out by the quality element that identifies the particular attachment as being below average, average, above average, excellent, or superior, and adds a percentage to the base rate. She stated she has a better idea of how the methodology has been executed, and she would like the other Commissioners to have the opportunity to read it. She stated she noted right off that it appears the methodology may be unfairly applied being that it does not look like this might have been applied to some of the mobile home owners who had the 200 and 300% increases, but maybe she does not understand how it was applied completely. She stated what really concerned her was the testimony the Board had by one constituent several meetings ago that said Mr. Larsen came out to their mobile home community; she knows he has been there when there has been an uprising of different concerns and different communities and actually on the fly changed the assessment; that was at Trailer Haven; so her question is why they cannot retract all the assessments until such time as the methodology is understood to be fairly applied. She stated her concern is the evidence she sees in the document; it would have been nice to have received the document when the issue came in front of the Board from the very beginning; it was brought to her as a member of the VAB; and she knows that Commissioner Scarborough has never seen it. Commissioner Scarborough stated if he received it, he never reviewed it. Commissioner Carlson stated she and Commissioner Scarborough have been on the VAB all year, and Commissioner Pritchard is on it, but she does not know if he has seen it. She stated it does help in terms of understanding the methodology, which the Board is questioning. Commissioner Carlson stated one thing she noticed in the Department of Revenue communication dated October 30, 2002, is that it talked about the issue in question on the last page; this does not cover Commissioner Higgs’ issue, which was the commercial side of things, but the mobile homes in particular; and it talked about getting the Department of Revenue (DOR) to review the valuation of those parcels. She stated it says, “The Department has agreed to comply with the Property Appraiser’s request and will schedule the review as soon as possible”; and inquired if that is taking place. Mr. Caruso stated to his understanding, DOR reviewed all the assessments on the mobile home attachments and found they had been done properly and correctly. Commissioner Carlson stated her office has not received anything to that extent; the letter she is referring to is the one everybody has been referring to, which states that they did not review mobile home assessments, and they would do that based on the Property Appraiser asking them to do that; so she is questioning whether or not that has been done and a report given to the Property Appraiser’s office. Mr. Caruso stated to his knowledge there have not been any additional reports; but there may be, so it is not a definitive no, and he can find out for the Board. Commissioner Carlson stated if the Board is going to have an appraiser or someone review the methodology, the document she just received would be a great basis to start from because it is her understanding that is how Mr. Larsen started out with his valuations. She stated the other question she has is on the replacement value; the document talks about where they start out first, which is replacement value; and she does not know if Mr. Caruso knows that part of the law or whatever, but inquired if he could explain how they derive fair market value from replacement costs. Mr. Caruso stated he is not an appraiser, he is a lawyer; but he understands that one of the methods to arrive at fair market value is replacement cost; but how they arrive at the replacement cost and the various factors considered to do that he does not know because that is not his area of expertise. Commissioner Carlson stated there is a lot of terminology being thrown around; the DOR stated “I wish to thank you and the rest of the Commission in advance for working with the Property Appraiser and Department staff to ensure that all properties are equitably assessed at its full just value”; and inquired if full just value is equal to market value; with Mr. Caruso responding they are synonymous; and the Supreme Court of Florida has consistently said in assessment cases that sometimes courts refer to one and to the other, but those words are synonymous. Commissioner Carlson stated those are her comments and questions, but it seems to her as they apply the methodology that there may be the potential of discriminatory practices if they are applying equitably on all properties, given the quality, whether it is an attachment or mobile home or whatever. She stated what she is seeing are holes in the methodology; that is the only thing she would be interested in reviewing; however, that is up to the Board; but she thinks there is a need to review it.

Commissioner Pritchard stated it appears that the issue is not that a tax was charged, it is just the amount of tax charged; unfortunately, those folks are caught between a rock and a hard place because they do not have a homestead exemption since they are leasing the land that their mobile home is on; and there was an article in the paper that said if they had homestead exemption, they would pay nothing because with the $25,000 exemption and $25,000 senior exemption, it would take them below the threshold of paying taxes. He stated 300% increase is significant; it is too much too soon; but he does not think that takes the place of the real issue of whether or not the Property Appraiser has performed the audit properly. He stated 103 appeals have gone before the special master and the special master issued recommendations upholding Mr. Ford’s calculations; so it appears he has done the audit properly. He stated Mr. Ford is not accountable to the Board; he is accountable to the State; but the amount of tax that is charged is so high perhaps there is some way that amount can be reduced and they can resolve this issue. Mr. Caruso stated he is not sure how Commissioner Pritchard wants him to respond to that question, but the only way the taxes can be reduced is if the assessed value is reduced. Mr. Caruso stated the assessed value was determined by Mr. Ford’s office using its methodology; it was reviewed by the DOR and found to be correct and accurate; and it has been reviewed in every case that was challenged before the VAB to be correct and accurate; so he does not know how the Board would reassess the properties to reduce the taxes if the correct methodology was used. Commissioner Pritchard stated apparently the methodology had not been applied for several years; all of a sudden it was; they were hit with a substantial tax increase; and that is the part that is an issue of fair play. Mr. Caruso stated he understands where the people who spoke are coming from; but on the other hand, if the Property Appraiser had used the correct methodology five years previously, their taxes would have been increased five years ago instead of when they were; so it would have been an added burden on them for an additional number of years. Commissioner Pritchard stated when someone is on a fixed income and it only goes up very little, the burden could have been far less had it be incremental over the past few years instead of one lump sum at one time; however, the issue the Board is looking at is whether or not to audit Mr. Ford’s operation; and he does not agree with it and does not think the Board should audit his operation, but he is looking for relief for those people who were hit with a significant tax increase this year. Mr. Caruso stated he will take Commissioner Pritchard’s question and submit it to Mr. Ford to get an answer as to whether or not there is a method or basis to get relief; but he is a lawyer and not an appraisal expert, so he cannot answer the question directly.

Chairperson Colon advised time and time again she has called the Property Appraiser’s office to make sure there was someone here who would be able to answer some of the questions; and she does not think it is fair to the Board and citizens not to get some of those questions answered. She stated Mr. Ford requested, since he was not going to be present, to send Mr. Caruso; but a lot of the questions that were asked seemed to be for someone who would have that knowledge; and it is frustrating for both sides and unfair. She requested Mr. Caruso relate that to Mr. Ford. Mr. Caruso stated he will do that, but this goes back quite a while where there were a number of sessions before the mobile home attachment rate issue came up; that opportunity for citizens to appear before the Board and express their comments turned into a name-calling and finger-pointing thing towards the Property Appraiser’s office; and they cannot defend against something like that. He stated if it was an opportunity to come and explain or answer questions, that is one thing; but on the other hand to be accused by members of the public, that is not what he believes is supposed to take place at a Board of County Commissioners meeting; and he believes that is the reason Mr. Ford declined to be here.

Chairperson Colon stated one of the things she realized this morning is that the questions are the same questions that had been asked in the past; Commissioners Carlson and Pritchard have legitimate questions that need to be answered; and at no point has any Commissioner made personal attacks on Mr. Ford. Mr. Caruso stated he did not suggest that any member of the Board did that and said it was members of the public on occasion that have done that.

Commissioner Scarborough stated the scope of services include the Property Appraiser assessment methodology; the Board received an AGO which it requested; but Mr. Knox felt, even though it said the Board could not do certain things, it could do other things; and requested he elaborate on that.

County Attorney Scott Knox advised the best way for him to describe what it is that the Board can do, notwithstanding Mr. Caruso’s opinion to the contrary, which he respects, but does not agree with, is to give the Board an example of what he is talking about. He stated assuming in Volusia County the Property Appraiser arbitrarily decided to assess all commercial property at 20% of fair market value and residential property at 100% of fair market value; the Florida Statutes require fair market value; under those circumstances, the commercial property would not be paying its fair share; and inquired what does the Board do about that. He stated Florida Statute 195.092 says any taxing authority has the right to challenge any decision by agency of the State on any tax matter; and in the circumstances he described, if the Property Appraiser comes up with a 20% arbitrary assessment and sends it to the DOR and the DOR says it sounds like a good idea and goes along with it, then any taxing authority, city, special district, and county commission has the right to challenge that decision by the DOR. Mr. Knox stated one of the remedies that is available if it is not the Board but a private taxpayer who wanted to challenge it is that the judge has the right to order a re-appraisal of the entire county if he wants to; and that is one of the remedies in the Florida Statutes. He stated for the Attorney General to take the position that the Board has no ability to challenge an assessment roll approved by the DOR and does not have the authority to go out and investigate public records to determine whether or not the assessment roll was accurate is crazy in his opinion; and the prior Attorney General is completely wrong about that. Commissioner Scarborough requested Mr. Knox go through the methodologies on billboards and condemnation that the courts require as opposed to what options are available to a Property Appraiser. Mr. Knox advised the Property Appraiser has available to him today three options to determine what the fair market value is; he may use one to the exclusion of the other or combine all three; and it is his discretion how he does that. He stated in the case of billboards, if a person is in the billboard industry and wants the Property Appraiser to look at the billboard as replacement value, the cost of putting up a billboard is about $25,000; after five or six years, there will be depreciation built into that and they are going to deduct depreciation; so if a person had a billboard standing for five years, it may be worth $10,000 on the tax rolls. He stated if the billboard company decides to sell the billboard to another company, in his experience, they would look at the multiplier of the income on the billboard; so if the billboard is renting for $3,000 a month, they will come up with a multiplier of four times the annual revenue on that billboard and it may be worth $100,000 to the billboard company; so that is what they will try to get the other company to pay. He stated when they go to condemnation, if the Board wants to take one of those billboards, they come in and try to get their assessments lowered, and are going to argue it should be replacement value less depreciation; so the discrepancy is between $10,000 and $100,000. Commissioner Scarborough stated the Board had all this discussion with the Legislature last year, which said the Board has to pay full value if it wants to take out the billboards; and inquired what methodology questions of that nature does the Board really need to go through and audit except for some general discussion as opposed to a methodology, which could be more readily available with this simple analysis.

Commissioner Carlson stated when someone actually applies the quality standard in the document she referred to earlier, it is a method of depreciation; that is what it appeared to be to her because she was looking at the replacement cost minus the depreciation, which would have been more of a fair assessment; but she was not sure because she did not have enough time to study it.

Commissioner Scarborough inquired if a comparison of methodologies used by different Property Appraisers around the State indicate abnormalities within Brevard County; with Mr. Knox responding it could, but not necessarily. Mr. Knox stated the DOR is approving a particular methodology that is used throughout the State; that may be consistent through the State; however, it may not be right, but no one knows.

Commissioner Carlson stated the Property Appraiser has a huge box to choose from in terms of applying how he works with the various assessment methodologies; he has the opportunity to do that but with that said, he needs to apply consistency; and that is what she was trying to point out. She stated they do have a methodology, but it does not appear to be consistently applied; and that is where the unfair side comes from.

Commissioner Scarborough stated going back to the billboards, Mr. Caruso used two definitions; and for condemnation it is exactly the same definition the Property Appraiser must use. Mr. Knox stated both cases look for fair market value; it is called just valuation in the Property Appraiser’s business; but Mr. Caruso pointed out it is the same as fair market value and the courts have upheld that. He stated the Board is looking for the same thing in condemnations as it is in property appraisals theoretically, which is fair market value; and how to get there is entirely up to the discretion of the Property Appraiser, but the goal is to get to the fair market value. Commissioner Scarborough inquired how can the courts in one case require one methodology and in another case a totally different methodology and say both are fair; and why should the Board receive taxation on $10,000 if it has to take the sign and pay $100,000; so there is something inequitable in the methodology. He stated that is why he wonders in the methodology, if the Board needs to do an extensive audit as opposed to something that is being discussed here.

Chairperson Colon inquired if Mr. Knox mentioned Florida Statute 195.092; with Mr. Knox responding yes. Chairperson Colon asked Mr. Caruso if that is his interpretation; with Mr. Caruso responding using the example Mr. Knox used, that if Volusia County was foolish enough to assess commercial property at 20% and the DOR said it was a good idea, he agrees the Florida Statutes say exactly what Mr. Knox said, that any governmental agency or taxpayer can challenge that; but while he agrees with that example, that is not the real example being discussed here. Chairperson Colon inquired if Mr. Caruso is saying it could be challenged; with Mr. Caruso responding under those circumstances, any governmental agency or taxpayer can challenge the DOR decision to approve that.

Commissioner Carlson inquired based on Mr. Caruso’s last comments about the methodology and how they can be different, what methodology was he using when it appeared he was arbitrarily lowering assessments; was it based on overlooking some calculations; or what was the purpose of that, because it looked to be very unfair. Mr. Caruso stated it is his understanding it was based upon assumptions they had made with regard to conditions of some of the attachments, which had been incorrect; and based upon those mis-assumptions, there was a basis to do an immediate reduction or reassessment. Commissioner Carlson inquired if that could be the case in all of those that had large assessments; with Mr. Caruso responding yes, if in fact that same error was made. Commissioner Carlson stated only those people who are saying it is not fair and had him come out to look at it again would know if an error was made. She stated all she is looking for is consistency in application; and inquired if the Property Appraiser’s office goes out to the community that screams the loudest and makes changes, should that be done across the board; with Mr. Caruso responding he would think so. Commissioner Carlson inquired if the Property Appraiser’s office would not have them wait to come to the VAB and would go out there and look; with Mr. Caruso responding if anyone requests that, it is his understanding they would go out and look at the it.

Commissioner Higgs stated local government works well when it has checks and balances that are designed in the system and the system allows all kinds of people to question each other about what they do in an open forum; and all the Board wants to do is look in a fair and open way, using expertise, at what is going on with the value of property, including commercial and mobile homes. She stated if Commercial property is not valued in a fair and equitable manner, then the average taxpayer whose home is valued in a fair way pays an unfair burden; so it is simply a way of being able to insure that fair valuations of property are done on all types of properties. She stated no Commissioner has the expertise to do that; so the Board wants to do an RFP to ask for a qualified consultant who will look at the assessment methodologies and assessments on commercial property as well as mobile homes and advise the Board if it is being done in a fair manner; and to do that, she can only assume they would take a random sampling of properties, analyze those for value, and look at what has sold, what is the current value on the tax rolls, and what similar properties sold for and if that is the fair market value. She stated the Board is not auditing Mr. Ford’s office; it is simply looking at what the values are and asking for an expert to do it; so the Board should go ahead with the RFP and see what responses the experts come back with and tell the Board their methodologies and costs; and the Board can then evaluate that. Commissioner Higgs stated value of property being fairly done is fundamental to the whole taxation system; nobody wants to pay more taxes; so the Board has to ensure that it is done fairly; and that is all it is asking to do. She stated everybody at every Commission meeting asks questions of the Board; it is simply asking questions that are fundamental to the fairness of the taxpayers of the County; and the RFP will allow the Board to do that and to look at what the experts would say would be a way to fairly evaluate the property roll.

Commissioner Pritchard stated he believes in a system of checks and balances, but he does not think what the Board is doing here is appropriate. He stated a challenge is not an audit; a challenge is when one takes issue with the Property Appraiser, reevaluates the situation, and may or may not make a determination at that time; but if they disagree then they appear before the VAB, which has been the process that has been followed, the issue of due process has been followed. He stated the RFP to review the Property Appraiser’s tangible personal and commercial properties assessment methodologies and commercial tax roll may open a Pandora’s box that could adversely affect the entire community; the entire community could find itself in a position of having to pay a substantial increase in taxes due to the fairness issue; and he is not advocating that people should be allowed to get away with something, but is saying there are situations that are out there that people are happy they have; and they may be desirous to keep it that way. He stated one issue he hears constantly is taxes; they do not want to pay more taxes and want more services for less taxes; but what the Board appears to be doing here is circumventing the methodology that the Property Appraiser has set up for evaluating property and looking for a back door approach that can change his methodology even though he does not report to the Board and is responsible to the State.

Chairperson Colon inquired if Commissioner Pritchard has any suggestion other than the RFP in regards to trying to figure out how the Board can come up with some kind of solution. She stated she has a problem with the RFP being too broad and not accomplishing what the Board would want; and inquired once the Board gets the numbers, what would it do with them and will it have spent the taxpayers money wisely. Commissioner Pritchard stated the Board should meet with the Property Appraiser and his Chief Deputy and ask specific questions and listen to the replies to resolve the issues so it will be better informed. He stated he does not like the idea of going to contract and relying upon someone else to come back with their evaluation of what they heard and spending money to have it done. He stated the Board is in a position where it could schedule a workshop, meet with Mr. Ford, Mr. Larsen, and his staff, and resolve the questions that it has at that workshop without spending money on having an outside agency perform what they are calling a review of personal and commercial property assessment methodologies, etc. He stated it reeks of an audit; it is not simply asking a question; in effect it is swatting a mosquito with an ax; and it is inappropriate, so he does not believe the Board needs to go that far. Chairperson Colon stated she requested the Property Appraiser’s Office to come before the Board; the Property Appraiser feels that there are going to be personal attacks, not by Commissioners, but citizens of the community, and nothing would be accomplished; and she does not want to speak on behalf of Mr. Ford, but she does not know if Mr. Caruso thinks that a workshop is something they would consider. She stated she would like to have discussions in the sunshine of some concerns they have; she does not know how to stop citizens from being able to come forward and share with him publicly how they feel; and inquired if Mr. Caruso has any suggestions and if he feels it would not be feasible. Mr. Caruso stated every citizen has a right to address the Board; the matters that they address and the manner in which they address those should be based upon facts that they relate to the Board and should be addressed in such a way that whatever comments they make they do not need to personally attack another person, whoever that person is in order to tell the Board what they want to tell it. He stated in the past there have been occasions when members of the public have used this meeting as a forum to do just that; it has not been confined to just Mr. Ford and members of his office, but members of other governmental offices also; and as long as the parameters of the meeting, whether it be a workshop or whatever type of session, is such that the purpose is to be constructive as opposed to destructive and name calling, that may be feasible. Chairperson Colon inquired if Mr. Caruso is saying there is a possibility of something like a workshop; with Mr. Caruso responding he would think so.

Commissioner Scarborough stated the Board talked around the issue today; the concern he has is going out with the scope of service, and someone gets it and tries to listen to the transcript and tries to figure out what in the world the Board wants and where does it want to go with it; and he does not know if the Board defined that clearly enough. He stated the VAB and special master hearings are recourses for the person who is aggrieved with a higher assessment; but with the billboard scenario, there is an inequity in a reverse way; and if all commercial properties were assessed 20%, they would not have a complaining party but for the tax entity if it has a responsibility that is in a different avenue. He stated he does not know how to define it, but he would like to better define it; so if the Property Appraiser wants to meet with the Board, that will help define their respective rolls even more.

Commissioner Higgs stated someone coming before the VAB complaining that their appraisal is too low is not probable; they complain to the VAB and special master only if the appraisal is too high; so if Brevard County is undervaluing property, particularly commercial property, nobody is going to complain. She stated there is a basic question about due process; if the Board went out with the RFP and a basic statement that the Board is interested in receiving a report from the proposer that will allow it to determine how it believes the appraisals on property are being done in a fair and equitable manner; then it would allow experts to come back and propose methodologies that they would use. She stated it does not mean the Board has to fund any of them; it is a broad statement, but it would allow people to come back and clarify what they want to do and what they think will be the proper methodology to achieve the end the Board is after. She stated that would be the best way to go about it, send it out with a broad statement, and let the proposers come back and tell the Board what they want to do and how much it will cost.

Commissioner Scarborough stated there are two things for persons responding; and one is confusion; the County can spend a lot of money to come up with a product that is totally worthless; he has seen a lot of consultants give the Board garbage when it did not point them at what it wants and say do this; and a lot of people like to get County money, but if they are not tied down, the County may not get what it wants. Commissioner Higgs stated through negotiations the Board can refine and buy only parts of what may be proposed and further refine what it wants them to do.

Chairperson Colon advised Mr. Pine that she had a question for him; and inquired if there is something he would like to be able to give some feedback on. She stated every time the Board discusses this issue, the more it realizes how complex it is; and inquired if Mr. Pine feels a workshop would be productive. She stated she wants to make sure that the Board goes easy on this because this year it has already been told it is too late, and the issue is what can it accomplish for the following year, so 300% increases do not happen at one time. Mr. Pine stated a workshop would be productive if the Property Appraiser is responsive to the issues that are brought up; however, there are two primary issues; one is equity and in that is whether people are paying too much or too little and whether everybody is being treated the same; and the other is the question of compliance. He stated for instance, if someone calls the Property Appraiser’s office and ask for their ADA coordinator, they do not have one; so there are some issues that if the public were to seek redress where they are legally entitled to, it is not available. He stated a workshop while being good for venting is not necessarily a good way to solve problems; the Board needs to know what the problems are or if there are problems; somebody may do a study on equity and find out there are no inequities involved or they are insignificant; however, on the other hand, the exact opposite could be true. He stated the Board could do a survey and find out 70% of the people are paying the wrong taxes; so the question is where is it right now. He stated they have no way of asking that question; he is concerned with the response the Board got from the Property Appraiser’s office because he just asked where the Property Appraiser was and was told he is in Titusville. Mr. Pine stated he does not know if the lady at the front desk is correct or not, but maybe his meeting in Orlando was earlier and he is now in Titusville; so he is concerned with the response because they have elected officials and cannot get a response except to come back with an answer which is a typical delaying tactic. He stated there should be no more delays, the Board should get something done; whatever it does, it should get something positive done; and some kind of review is necessary at this point. He stated a workshop is great only if attached to reasonable and realistic results. Chairperson Colon inquired of Ms. Polk, once the information comes back to the Board, what does it do with it. She stated the State feels there is no wrongdoing; the courts will not hear it; there is controversy in regards to Florida Statute 195.02 whether the Board has a right to challenge it or not; and inquired what should the Board do with the information and should it be done before or after the workshop. Mr. Pine stated if it comes back and the Board finds inequities are there, it has available to it the same process that is available to an individual; it can file with DOR the factual information; but lacking that information, and the average citizen who comes up with a personal complaint, it will be discounted. He stated with a review the Board will either prove there is a problem or there is no problem; if it proves there is a problem, then it can go to DOR or the Legislature and they will take the appropriate steps; but lacking that information, it will not get the appropriate steps.

Commissioner Pritchard stated one of the best ways to write an RFP is to know what the Board wants instead of intimating tell the Board what it needs and hoping they will provide what information the Board would like to have. He stated that is no way to run a ship; the best way to determine what the Board would like from the folks is to meet with them and ask questions; and based upon the answers it receives, if it finds it is having a problem, then do something about it. He stated the first step is to find out what the problem is; the issue about signs valued at $10,000 and sold at $100,000 is beyond capitalism; and would like to know more about it. He stated the issue about the homeowners’ assessments on tangible property is excessive, which he does not agree with; they were hit with too much too soon; and it should have been phased in over the past several years. He stated people do not like to be surprised with additional costs and do not want to pay additional taxes; but the way to go at this point is to have a workshop and then decide what direction the Board is going to take.

Commissioner Carlson stated she does not think there is a problem with an outside objective review; there is enough discontent out there, including the victims of the increase in taxes, suspicions on whether the methodology was applied fairly, and other things; so it is prudent for the Board to request an outside review of that methodology. She stated under the purpose of the RFP, the Board may want to be more specific; and she is not sure she supports just throwing it out and seeing what comes back then pick and choose because it may not get anything it really wants and then a lot of time has been wasted. She stated it would be good to have the assessment methodologies used not only for residential and commercial, but the mobile homes also in order to compare the fairness and see if it is equitable. Commissioner Carlson inquired if there are any other challenges on methodology defined in the courts that can be included in the scope and not reinvent the wheel, if methodologies have been challenged in other counties and turned up zero, does that mean anything, and is there review there that would be helpful. Mr. Knox stated a real estate appraiser has the same three methodologies available that the Property Appraiser has; but how they are applied to get the fair market value is the issue. He stated for example, an appraiser should be able to spot check 30 commercial properties and say of those 30, 17 were above or at fair market value based on the use of the three methodologies; and if he comes back with that, maybe the Board does not have a problem; but if he comes back and says there are only 2 at fair market value, then the Board may have a problem. He stated the methodologies are there, but how they are applied is the key. Commissioner Carlson inquired what would the Board expect as far as a report back from that action, and would it be, this is fair market value, this is not, this was applied correct, this was not, or this was the methodology that was inconsistent. Mr. Knox stated the Board could do it in phases, identify a problem based upon spot checking properties, pick the ones it wants looked at, and if they come back and say they do not see a problem, then the Board would not have to go any further. Commissioner Carlson stated obviously Mr. Ford follows the law; he has it all set out through DOR; but if there is a case, that could be the basis for legislative request to change the law and how it is applied; and that is one reality that might come to pass. Commissioner Carlson stated Chairperson Colon may wonder why the Board is going to do all this; the bottom line is if there is a methodology out there or the application of that methodology that is obviously inequitable across the board or in some category, at least the Board might find that out; and if there is not, there is not, and the Board would know the way it is and each person would go back and try their specific case with the VAB. She stated it would alleviate a lot of questions out there in terms of what is happening; and at least from her perspective, some of the inequities are apparent.

Chairperson Colon stated for this year the procedure was upheld; she had hoped the citizens would have gotten relief for this year; the Board should schedule a workshop in January to have clear discussion; and she would have no problem supporting an RFP if the Board feels at that workshop that not much was accomplished. She stated if the workshop accomplishes nothing, then the Board would owe it to the citizens to move forward with an RFP. She stated she would appreciate it if the workshop would take place soon and not be prolonged longer than January. She requested someone entertain a motion for a workshop; and if not, the Board would move to the RFP.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize scheduling a workshop in January 2003 to discuss the possibility of an RFP for a review of the Property Appraiser’s tangible personal and commercial properties assessment methodologies and the commercial tax roll. Motion carried and ordered unanimously.

Chairperson Colon stated the Board will have a workshop in January 2003, and hopes it can work together with the Property Appraiser. She stated they represent the same citizens; and she would like to cooperate with them; and advised the citizens to make sure they are there as it is important that the Board hears from them.

ANNOUNCEMENT

Chairperson Colon advised a time certain was scheduled for 10:30 a.m.; the Board is two hours behind; the Board also has an executive meeting; and hopefully it can be moved to Thursday at 4:30 p.m.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to reschedule the executive session for 4:30 p.m. on December 5, 2002. Motion carried and ordered unanimously.

Chairperson Colon inquired if the Board wants to break for lunch. Commissioner Higgs suggested taking the item that was scheduled for the next time certain. Commissioner Scarborough stated there are 1:00 p.m. and 1:30 p.m. time certains; and inquired if the Board wants to have lunch or dinner. Chairperson Colon advised the Board will break for lunch for half an hour; and apologized to the people who have been waiting for their time certain.

The meeting recessed at 12:32 p.m., and reconvened at 1:08 p.m.

APPROVAL OF GRANT APPLICATION AND MATCHING FUNDS, RE: RESIDENTIAL
SUBSTANCE ABUSE TREATMENT GRANT FOR PRISONERS HELD IN LOCAL
CORRECTIONAL FACILITIES

Freda Schildroth, President of NAMI and member of the Commission on Mental Health and Community Solutions, requested the Board allocate the necessary funding for the grant to provide substance abuse services to inmates at the jail, a much-needed and currently non-existent component of the reentry programs for inmates. She stated most of the inmates at the jail have some type of substance abuse problem; many of the inmates are repeat offenders because there are no services available to them to help break the revolving door cycle; and even coerced treatment works. She stated approval of the funding for the grant will be an investment in making the system work and will enhance the crisis prevention program that the Board put in place in the County. Ms. Schildroth advised a treatment program is cost effective; and it will save dollars in the long run by ensuring that inmates with substance abuse problems receive the treatment they need to help them return to the community as productive citizens with fewer problems at home and in the community. She stated a vision is for the treatment program in the jail to provide a link with faith-based community programs and stop the substance abusers involvement with law enforcement, non-productivity, poverty, and homelessness; and requested the Board consider the grant favorably because it is the right thing to do.

Mike Harley, representing Circles of Care, encouraged the Board to support the matching funds for the grant from Florida Department of Law Enforcement (FDLE) for inpatient treatment services at the jail. He stated the link between crime and chemical dependency has been well established by research and studies over the years; and based on national statistics compiled by the U.S. Department of Justice, 82% of jail inmates report a history of illegal drug abuse, 25% of property-offending inmates report that they committed the crimes in order to purchase drugs, 37% of those arrested report that they were under the influence of drugs or alcohol at the time of their arrests, over 50% of domestic violence perpetrators report they were under the influence of drugs and alcohol when they committed their acts of domestic violence, 67% of people arrested test positive for some kind of illegal drug, and 87% of individuals on probation report a history of previous use. He stated if anything, these statistics may be slightly under-representing the problem, because they are based on individual reports. Mr. Harley advised the goal of the program is to reduce recidivism; the Board has been told if the County spends the money, it will save money elsewhere; that is sometimes a difficult claim to track; but because there is national research that shows treatment does work, they have an opportunity to use County and FDLE money to test whether that is true. He stated they are proposing to treat some individuals in the jail who have substance abuse problems; and then they will be able to do follow-up research with them and really track whether they were rearrested and came back to the jail at the same rate as the individuals who were at the jail at the same time. He stated it will bear out if treatment does work and results in lower recidivism and lower arrest rates; and it is an opportunity to really test that and show that is the case. He stated the treatment would be intensive residential; that is a combination of group and individual and educational services; the services would be based on a nationally established curriculum for the treatment of substance abusers in correctional facilities; it is not going to be something someone came up with; and it is a national research program that has modules of treatment and education. He stated there is one significant advantage of treating people while they are in jail; there is probably more than one, but the main one is that it is kind of a truism in substance abuse treatment that if they can get someone at the lowest point when their abuse and problems have caused the major difficulties in their lives, that is when an individual is most amenable to treatment; and for a lot of folks being in jail is exactly that point and time. He stated to some degree it is an opportunity to take advantage of the fact that they were arrested and increase their chances that the treatment is really going to work for them. Mr. Harley stated sometimes people are concerned that treatment for substance abuse, especially for people with criminal backgrounds, can be a place for an individual to hide and an excuse for them to continue to have problems because they get arrested and do things and say they are substance abusers and those kinds of things. He stated the focus of the treatment will be on the individuals’ responsibility for their actions and consequences of their actions; so in that sense, the message is they have a substance abuse problem, but it is their responsibility whether they use drugs or drink or not, and for future arrests, etc. He stated they appreciate the Board’s consideration of this application and will be available to answer any questions.

Chairperson Colon stated she does not know if the people are still here, but called for Teresa Miles, Terry Altman, Larry Baxter, and Rita Elkins who did not respond. She stated she believes they were all in favor of the grant.

Commissioner Pritchard stated he is in favor of approving the grant; it is obvious the majority of problems with crime are being caused by chemical substances; the Board has to treat those persons appropriately to stop that downward cycle and get them back into productive lives; so he would support it.

Commissioner Carlson stated the grant will serve 32 to 48 participants; the Board has been told that based on statistics 80% or greater of inmates have some drug-related abuse; there is an overcrowded jail situation; and inquired if those numbers are based on the highest number that can be seen at this time. She inquired if they are limited by space at the jail and would that number be bigger if they had more space. Lead Planner Ian Golden advised the 32 to 48 participants is based on a single cell block being set aside in the jail; they can have 32 to 48 in the program at any one time, depending on their stay at the jail and based on their length of receiving the service; however, they anticipate they will serve far more than 32 to 48, as it would be multiplied by the amount of time they have over the years. Commissioner Carlson inquired if they are limited by the one cell block; with Mr. Golden responding they are limited to that; in order to qualify for the grant they had to specifically set aside an area for treatment; Terry Altman was going to speak to that earlier today; the jail is willing to specifically set aside one cell block; so they would not be able to do any more than 32 to 48 at any one time. He stated traditionally the inmates at the County jail do not stay there for any term longer than a year. Commissioner Carlson inquired if the 32 to 48 is based on the definition of the grant; with Mr. Golden responding yes, they identified that is how many they can have in the program at any one time.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize submittal of an application for Residential Substance Abuse Treatment Grant for Prisoners Held in Local Correctional Facilities to the Florida Department of Law Enforcement; approve $50,000 as matching funds from the General Fund Contingency; and authorize the Chairperson to execute the application forms for the grant. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL OF ADMINISTRATIVE DECISION BY TIMOTHY AND
KAREN NIELSEN

Chairperson Colon called for the public hearing to consider an appeal by Timothy and Karen Nielsen of an administrative decision to deny a building permit request for a single-family home with first floor parking to be exempt from the building height calculation of 35 feet.

Attorney Richard Torpy, representing Timothy and Karen Nielsen, presented a booklet to the Board, but not the Clerk; and advised this is unusual because it is not an appeal of a decision by a specific official. He stated Tab 1 of the booklet is nothing more than an affidavit; and he has applied for a vested rights hearing, but has come on this appeal because of a concern as to whether or not that is the appropriate process to use. He stated Mr. and Mrs. Nielsen purchased a piece of oceanfront property in South Melbourne Beach last summer; they went through the process of getting their plans approved to build a home; the home was designed as a four-story home with the first floor being a non-habitable garage floor; and Mr. and Mrs. Nielsen’s planners and designers worked closely with the Planning and Zoning staff to determine how the property was to be built. He stated one of the issues was height; Section 62-1102 of the Brevard County Code, as shown in Tab 3, addresses the issue of building height; and when he was before the Board to generally discuss this issue, it was mentioned that there was not an intention for the particular provision to be applied to single-family residences. He stated Section 62-1102 is specifically definitions and rules of construction; the Planning and Zoning Office went to that Section and looked first under the building height; the definition says, “means any structure construed or used for residence,” and then it goes on to say, “business, industry or other private. . .”, but it specifically uses the word “residence”; and this project is a private family residence for the Nielsens. He stated the issue of how to measure height came up; Subsection 3 is the only one that applies; it says, “where one level of parking is provided under the principal building, building height shall be measured from the elevation of the lowest point of the structure of the first habitable floor to a point defined in either subsections 1 or 2 of this definition, provided however, that the setbacks, breezeways, visual corridor, and fire protection requirements under this Article shall be based on building height as mentioned from the average elevation of the finished developed grade of the building site.” He stated that Code was applied by the Planning and Zoning Office with approval; and to this date he has no disagreement with Mr. Scott’s office, as that Section applies to determining building height. He stated his clients then developed their plans and were about to obtain approval of their building permit from all the relevant offices of Brevard County when that process was stopped because of a question raised by the Board as to whether or not that Section of the Code applied. Mr. Torpy advised it came to the Board as a general topic; he did not ask to be in front of the Board for any reason back in October; his clients hired him and he came to hear the discussion brought to the Board by its staff of whether or not it intended the Section to be applied to single-family residences. He stated at that meeting the Board voted to direct staff to amend the Section to clarify that it does not apply to single-family residences; that was done in October 2002; clearly the Board realized the Section needed to be amended; and one of Commissioner Higgs’ points was that it was never the intention of the Board in 1986, when the Code was adopted, to apply it to single-family residences. He stated he pulled the minutes of February 1986 when the Code was adopted and found it remarkable that there was virtually no conversation about whether it applied or did not apply to single-family residences; there was a reference to a December meeting; so he looked at those and again there was no conversation about whether it applied or did not apply to single-family residences. He stated it simply was not addressed by the Board; so what they are left with and what he thought was interesting in the minutes that were adopted in February 1986, on page 23, which says, “the Board discussed the provisions of the Ordinance, allowing habitable space under pitched roofs to give incentive, language to be in layman’s terms and understandable”; so even the Board back in 1986, was concerned about it being in layman’s terms so everyone could understand it. He stated his point is the Code could not be more understandable; it determines what the building height is going to be; the building height is to be measured from the first habitable floor; and his clients have designed a building that if height is measured from the first habitable floor clearly meets the Code. He stated the only way his clients’ structure can be denied a building permit is if the Board says they were not covered under Section 62-1102 of the Brevard County Code; however, there is nothing in all the provisions he has that says their single-family residence is not covered. Mr. Torpy stated, with respect to Commissioner Higgs, who has apparently been involved in a board that had discussions about the South Beaches, and whether there was an intention by the Board of County Commissioners at that time to exclude single-family residences from the definition, that may well have been; however, he found no evidence of that in the records of Brevard County; and even if it had been the Board’s intention, it is the burden of the Board to adopt the law that says what it intended. He stated the fact is the Planning and Zoning staff read the clear and plain language of the Ordinance that says measure from the first habitable floor; and as a matter of fairness to Mr. and Mrs. Nielsen, he is asking the Board to pass a motion today to allow them to be issued a building permit so they can go forward with their project. Mr. Torpy stated that would not change the Board’s ability to follow through on what the Board directed staff to do in October, which is to amend the Code to make it clear if that is the intention of the Board, to not allow the provision to be used for single-family residences; and it could change the Code to apply to structures in the future. He stated it is his understanding this is the first case to come before the Board with this particular application; one of the reasons is there are a lot of things that affect single-family residences on the beach; and those lots are generally small. He stated in 1986 Hurricane Andrew caused the Coastal Construction Control and Setback Line to be moved even further back from the ocean, further reducing the building lot size; one of the things, which was created and impacted by the 1986 Code was certain breezeway requirements; so by the time they take all those things away from the building lot, in order to get a usable amount of square footage, they go higher; which is the case with the Nielsens. He stated it would not let people go as high as they want because it is only the first habitable floor; but out of fairness, he is asking the Board to approve this appeal. He stated Tab 2 is the letter from Mr. Scott denying the building permit; he was following what he believed was the intention of the Board; but if plain language is applied, Mr. and Mrs. Nielsen’s structure does comply with the Code; it is within the building height as defined in Section 62-1102 of the County Code; there is nothing in the Code or in the language of any minutes to say it does not apply; so the Board should allow them to go forward with their project and amend the Code to apply to future structures if that is what its intention is. Mr. Torpy requested the document he gave the Board labeled Brevard County Board of County Commissioners December 3, 2002 Appeal of Timothy and Karen Nielsen be made a part of the official record as part of the appeal because it also has affidavits of Mr. Nielsen, his planner, as well as minutes he referred to and various other documents.

Planning and Zoning Director Mel Scott advised counsel for the applicants has represented the issue fairly; the issue before the Board is whether or not the Zoning Official acted appropriately in denying the building permit based on a number of factors, most pointedly on the fact the Board of County Commissioners directed staff to clarify the Code and exclude single-family residences from enjoying the height calculation exemption. He stated upon hearing the facts concerning the application that was before the Planning and Zoning Office, the Board directed counsel to pursue a vested rights application; he felt, in the light of those two actions being taken by the Board, it would be counter to the Board’s direction to issue the building permit at that time.

Mr. Torpy advised he did not ignore the request of the Board to apply for vested rights; he did apply, and it is pending, but for legal reasons he is not sure that is the appropriate venue because vested rights contemplates some law came into existence after his client acquired the property, which may have impacted their vested rights to develop the property or the other version of that is some kind of detrimental reliance, which may be vested right. He stated detrimental reliance is an issue of whether or not his clients acted based on representations by the County even though it was clearly inconsistent with the Code; his problem is the Code clearly was adopted prior to his clients obtaining their property; so he is not sure that it is technically a vested rights issue although that may be the vehicle the Board uses to address those things. He stated if it is an issue of a Code applying, he does not know that the detrimental reliance Code applies to them; and that is why he opted to come to this hearing before the vested rights hearing. Chairperson Colon stated that is the mechanism the County uses to try to help applicants.

Tom McMullen, President of Aquarina Residents Association, Inc., representing approximately 400 residents, advised Aquarina is located immediately south of the property in question; the Association supports the County and Comprehensive Plan, which limits single-family dwellings to be less than 35 feet in height per Section 62-1102 of the Code; therefore, they ask the Board to deny the building permit. He stated the residents of the South Beaches have fought to preserve the beautiful jewel of Brevard County by enacting the Code restrictions; and they hope the Board will continue to protect the lovely and environmentally sensitive area.

Commissioner Carlson inquired if the Zoning Official’s denial based on future acts or events occurring is a proper basis for the denial; with County Attorney Scott Knox responding there is a doctrine called the Red Flag Doctrine, which they have talked about from time to time, but he would tell the Board the case that says that there is such a thing says that if they submitted a site plan, they get under the wire and go by the prior rules. He stated in reading the information he has, there was some kind of a plan submitted, reviewed, and resubmitted; so it probably fits within the old rules as opposed to any new rules. He stated the issue is also an issue of interpretation because the Board had indicated there was never the intent to incorporate single- family residences into that provision in the Code and asked staff to clarify that; so the issue today is whether the Board agrees with the proposition that the Code, as it was written, does not apply to single-family residences, and that is what Mr. Scott had to determine. Commissioner Carlson inquired if the denial was based on intent; with Mr. Knox responding no, it was based on interpretation of the Code that it does not apply to single-family residences. Commissioner Carlson stated she thought to deny something, it has to be denied based on the writing of the law in existence at the time and not based on future actions of the Board or the intent of the Ordinance, because the intent of the ordinance is what is in question. She stated that is what the applicant would pursue in terms of vested right and not the intent of what the Ordinance meant; and she just wondered if that was legitimate.

Commissioner Higgs stated Section 3 of the Code says level of parking; and inquired if that ever applied to a single-family residence. She stated they talk about homes having garages and not levels of parking; and inquired if anyone anticipates a single-family residence with more than one level of parking. She stated the Code goes on to talk about fire protection; that clearly does not apply to single-family but to multifamily; so the Code, when it was written, while not crafted as well as it should have been, clearly applies the 35 feet of building height to single-family homes and the measurement not to include levels of parking. Commissioner Higgs stated the proper interpretation of the Code is the one under which they are being denied a building permit; the house should be within the 35 feet applied to residential buildings; the Code applies throughout the County; and she does not think many people can envision single-family homes 35 feet tall with one or two levels of parking underneath them in their neighborhoods. She stated that has not been the practice and she does not think it was the intent; the proper application is the one that would deny the permit; and she would move to uphold the denial.

Chairperson Colon advised Commissioners Scarborough and Pritchard would like to address the issue; and requested Commissioner Higgs hold her motion. Commissioner Higgs stated she will bring it up whenever the Chairperson wants her to.

Commissioner Scarborough advised Mr. Scott said his action was based on actions of the Board taken in October 2002; and he has difficulty with the Board’s actions in October impacting something that happened in 1986. He inquired if the Board did not meet in October and that discussion did not take place, would Mr. Scott concur with what Commissioner Higgs said as a valid interpretation; with Mr. Scott responding he has been on record previously as stating no, and as a matter of fact, the panel that was created per Administrative Order 43, which consists of the Zoning Official, County Attorney, Assistant County Attorney, and two Assistant County Managers, debated the issue and decided that the Code, in its literal interpretation, did not make the distinction between single-family, multifamily, and condominiums. Mr. Scott stated while they can come to an agreement that the intent of the Code was probably to exclude single-family, a literal read of it did not support that premise; so what is at issue, as was adequately framed, is not the interpretation of the Code, but the series of events that transpired after that interpretation of the Code, which he believed were counter to a permit approval. He stated it is not a question of whether the Zoning Official agrees or not that the exemption can apply to single-family homes; he believes the Code as written can; and he has been placed on record as saying that.

Commissioner Higgs stated the practice of the Building Official substantiates her position that they do not see single-family homes being built around the County with parking and the measurement of the house from anything but the ground level; and inquired if there are many single-family houses built that way; with Mr. Scott responding no, there are not. Commissioner Higgs stated they have not done it; and she disagrees with the group who looked at it, took a very limited extremely literal perspective, and made a mistake in their interpretation. She stated it has not happened before; their interpretation was an error; she does not see how anyone, when reading the Code that talks about levels of parking and fire protection, can believe that it would apply to single-family homes; and they have not done it at other times. Chairperson Colon commented it was quite awkward hearing Commissioner Higgs say they took it literally because she is usually the one who likes to go by the book. Commissioner Higgs stated they took it word by word.

Commissioner Pritchard inquired if there are any single-family homes in the County that are built in excess of 35 feet; with Mr. Scott responding this is the first instance of a single-family residence proposing to benefit from the height calculation exemption by providing for first level parking; it was because of this anomaly that staff brought it to the Board’s attention and for the Board to tell it what to do; they do not know if this is the beginning of a trend or not; but clearly they have seen one now and have taken a position. He inquired if the Board wants staff to continue to apply it that way. He stated the Board in October told staff to change the Code to clarify that single-family residences cannot enjoy the height calculation, but that was the beginning of his statement; he is not aware of any single-family residences in excess of 35 feet, but there might be someone who is aware of some. Assistant County Manager Peggy Busacca stated she is aware of at least two houses that have parking on the lower floor, but they are not in excess of 35 feet. Commissioner Pritchard stated the last house he owned had parking on the first floor and other rooms; the issue about fire protection was a popular issue in the 1980’s for single-family residences; and he has a little background in fire protection and recalls there was quite a bit of talk of changing the life safety Codes as well as the Building Codes to include residential fire protection. He stated there were a lot of companies at that time that went into business providing residential fire protection; so that could be why the fire protection issue was discussed and could possibly have held toward the development of single-family requirements.

Commissioner Scarborough inquired, having heard Commissioner Higgs and Mr. Scott, where does it place the Board; with Mr. Knox responding the Zoning Official interpreted the Ordinance in a letter to Mr. Torpy saying they are going to deny a permit based upon an interpretation of the Ordinance; now that is the letter that is being appealed from; and the Board has heard from the Zoning Official that he does not really agree with that. Mr. Scott stated the letter denying the building permit was based upon discretion he exercised that was granted to the Zoning Official in Section 62-100.1, paragraph 18; it was not based upon an interpretation of the Code; it was based on the Board directing staff to change the Code.

Mr. Knox inquired if the denial of the building permit was based on an interpretation of the Code that said this section did not apply to single-family residences; with Mr. Scott responding no. Mr. Knox inquired on what basis was it denied; with Mr. Scott responding it was denied on the basis of the Board hearing the case of the Nielsens and directing staff to pursue a vested rights claim, coupled with the fact that on October 15 the Board did not officially take a vote on whether or not to uphold the Zoning Official’s interpretation or overturn it; and absent that, he felt it would be counter to the Board’s direction to issue a building permit. Mr. Knox inquired if it was Mr. Scott’s interpretation that the Ordinance did apply to single-family residences at the time he issued the letter; with Mr. Scott responding yes. Mr. Knox stated that being the case, that Mr. Scott denied the permit based on a potential future action of the Board, then Mr. Torpy is going to stand up and tell the Board that he has a right to get the building permit because the site plan was submitted.

Commissioner Higgs stated when staff has erred in their interpretation and the Board was aware of that and it has gone from 1986 until today with an interpretation that has not resulted in houses built in this manner, in her opinion, the Board has an error of interpretation by the Zoning Official. She inquired what may the Board do to not have the error committed and the adverse impact on the neighborhood and surrounding property owners who have voiced their deep concern. Mr. Knox stated realistically the Board can change the Ordinance, but the way it should come up, if the situation posed is what actually happened, is that the interpretation that is erroneous gets appealed by the abutting property owners who do not agree with it. He stated in actuality, Mr. Torpy may find himself on the other side of the shoe than he thought he was on; and it will be the people in the neighborhood who are really the ones who are disagreeing with the interpretation of Mr. Scott. Mr. Knox advised the bottom line is the Board can interpret the Ordinance as of the date that the denial was issued and if the Board agrees that it does not apply to single-family residences, then Mr. Scott’s denial is upheld. Commissioner Higgs stated that is clearly what she believes to be the case and has been the case; the practice of this County since 1986 demonstrates that it is consistent with what the Building Official and Zoning Official interpreted until the day that Mr. Scott or whoever made the interpretation.

Commissioner Scarborough inquired what latitude does the Board have in interpreting Ordinances; with Mr. Knox responding the Board would be the final decision-maker, and three votes would win.

Commissioner Carlson inquired if Mr. Scott’s denial was based on his critique of the existing Ordinances, whatever might apply to building height and residences, would the Board be in a better position or no different; with Mr. Knox responding there is an analogy in the legal field that is called the Tipsy Coachman Doctrine, which means that the driver may be drunk, but he will get the person to the right result no matter which way that person goes; so if Mr. Scott happens to have denied the permit for the wrong reason and the Board decided that he should, if he had a reason to deny it, it is okay; but in order to get there, the Board is going to have to say that the ordinance does not apply to single-family residences.

Mr. Torpy stated he tries to deal with these things professionally, but Commissioner Higgs is wrong; and her analogy is they have never done it before, so clearly he is right; and they did not apply it to single-family, but Mr. Scott told the Board the reason that is the case is no one asked before. He stated he is the first person to ask; so the fact of going on a 15-year history of it not happening or whatever is irrelevant; he is the first guy to ask; and the Code applies, as Mr. Scott agreed and said publicly many times, even today. He stated Commissioner Higgs is trying hard to support her constituents and find something, Fire Code, anything to give support to her proposition that was not what they meant to do in 1986; the government’s duty to its citizen is to write what it means; and if it was really that much of a discussed item, it would have been pretty simple to put it in the Ordinance that “this does not apply to single-family residences.” He stated the Board has done it all the time; for whatever reason, it was not covered in 1986, if it was not the intention, then the government erred; and if it erred, that should not be against the Nielsens. Mr. Torpy stated everyone in the room, the Planning and Zoning official, the Nielsens, all agree the Ordinance says measuring from the first habitable floor; that is a simple solution; the Board directed staff to change its Code so this does not happen again; and that is what government does when problems come up or the intent of society changes. He stated the Board, as the legislative body of the County, changes Codes, but it does not apply retroactively a law that it is going to impose in the future; and that is what the Board is trying to do to the Nielsens. He requested the Board be fair, not come up with hypothetical theories, not try to justify doing the wrong thing, and let the Nielsen’s build their house, but not let people in the future build their houses down there. He stated there are other Codes that do not apply in the beaches that make people go higher; it already limits beachfront structures; but it should change the Code for the future and let the Nielsens go forward because Section 62-1102 says they start measuring from the first habitable floor. He stated there is no attempt in the language anywhere to exclude single-family residences; it applies to single-family residences; Mr. Scott has told the Board his denial was based on his belief of what the Board meant in its action in October; and requested the Board make a motion to allow the Nielsens to build their house and let this issue be done. He stated the Board should not make the Nielsens bear the brunt of whatever mistakes were made by prior Boards or the inability to write an Ordinance in simple language; and inquired if there really had been that much discussion among the Board, Planning and zoning staff, and various committees to exclude single-family residences, does any Commissioner believe that they would not have put that in the Code. He stated he does not think so; they would have put it in the Ordinance that it does not apply to single-family; it just was not considered because the facts that are presented today and the way properties are being restricted, they did not anticipate this problem. He requested again a motion from the Board to let the Nielsens build their home.

Commissioner Carlson inquired if Mr. Knox could frame a motion for the Board; with Mr. Knox responding the choices are to say that the Ordinance does apply to single-family residences, therefore uphold Mr. Scott’s denial of the permit, or say it does not apply to single-family residences and overturn Mr. Scott’s denial of the permit. Commissioner Carlson stated she did not ask for options, she asked for a motion; and inquired, based on what the Board just discussed, would it not be more prudent to go with the second option. Mr. Scott stated the two options are articulated on page 1 of Staff’s report, but Mr. Knox flip-flopped them. Mr. Knox stated he put the same options in a little different perspective; they have to determine, in order to uphold the denial, that the Ordinance does apply to single-family residences.

Commissioner Pritchard stated he does not believe that the Board in 1986 intended to exclude single-family residences from the height; he believes when they were working on the Ordinance it was their intent to allow single-family residences to be built to, within reason, whatever height they wanted to be built to; and just because it has not come before the Board before, does not mean that it is the practice of the County to deny those permits. He stated he would support overturning staff’s administrative decision to deny the building permit.

Commissioner Higgs stated Commissioner Pritchard needs to remember the people who wrote to him and who will be directly affected by this impact on abutting properties; and the abutting property owners to the south wrote, “I understand the party seeks to build a 45-foot tall structure. Clearly the intent of the County Zoning Code is to limit the height of a residential single-family structure and associated buildings to 35 feet.” She stated there are stipulations in the Code limiting the height of residential structures to 35 feet for at least 19 zoning classifications involving single-family homes; and inquired if there are 35-foot height limitations. Mr. Scott responded there are 35-foot height limitations when reading the Code in isolation of other provisions of the height allowances that every zoning classification affords; however, reading the Code in isolation of other provisions can be troublesome. Commissioner Higgs stated people assume 35 feet is the height; that is what they have built; that is what the Board has administered; and the use of this provision is outside of every bit of practice that the Board has endorsed since 1986. She stated the impact on abutting properties in any neighborhood is substantial; the Board does not have to let it happen because the practice of the Board and staff has been to administer the Code of 35 feet; she can read what the Code says as clearly as anyone; and there is no way that anyone would agree that levels of parking apply to anything other than multifamily or commercial structures. She stated one level of parking is provided under the principal building; it is not talking about single-family homes; it is talking about something other than that; so the Board should uphold the denial, uphold the Code, and uphold neighborhoods because there is not a single neighborhood in Brevard County that the Board would want to see a 35-foot tall building with two levels of parking underneath. She stated it does not matter where it is, that is not the kind of neighborhood the Board has ever endorsed nor does she think the Code endorses it.

Commissioner Scarborough inquired if level of parking is a term that would be found normally when referring to single-family dwellings; with Mr. Scott responding probably not consistently. Commissioner Scarborough stated he would support Commissioner Higgs because the words level of parking, principal buildings, and things like that are indicative of a type of structure that is not single-family.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to uphold the denial of the building permit for Timothy and Karen Nielsen to construct a single-family home with first floor parking calculating the building height from the first habitable floor.

Commissioner Carlson stated she agrees with Commissioner Higgs in terms of the Board not doing it and the intent of the Ordinance; she is sure everyone would agree that the Board was not looking for parking under a single-family residence; and she does not have any problem supporting staff. She stated she does not have a problem supporting the motion because it will come back to a vested rights hearing; then the Board will get an interpretation from staff that it did not get today based on the reasoning behind staff’s denial and maybe that will shed a little more light on the topic. She noted unfortunately, they will have to pay $1,000 to get the vested rights hearing. Mr. Torpy stated he has already done that.

Chairperson Colon inquired how soon will the vested rights issue come to the Board, and could it be the next meeting; with Mr. Scott responding December 17, 2002.

Commissioner Scarborough recommended the motion include the County Attorney coming back with a written order, like the Board has done with more complex cases, setting forth the findings of fact. Commissioner Higgs accepted the amendment to the motion.

Chairperson Colon called for a vote on the motion as amended. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

Chairperson Colon advised on December 17, 2002 the Board will hear this issue again as a vested rights issue and the finding of facts from the County Attorney; and at that time, they will have an opportunity to speak again. Mr. Knox stated typically he would put the resolution on consent, but he can do that. Mr. Torpy inquired if the Board is asking Mr. Scott to come back on December 17 with a written version of what the Board did today so he can understand exactly what the motion was and what was done today; with Mr. Knox responding he will prepare resolutions setting forth the findings of fact and the Board’s decision. Mr. Torpy inquired if it will be based on this hearing today; with Mr. Knox responding yes.

DISCUSSION, RE: STAFF REPORT ON REPAIR OF SEAWALL IN FOUNTAINHEAD
SUBDIVISION

Chairperson Colon advised she would like to get feedback from staff first so the people can hear the recommendations from staff.

Public Works Director Henry Minneboo advised there are four options relating to the seawall located in Fountainhead Subdivision, which is in the southeast corner of Wickham Road and Sarno Road; and those are staff’s suggestions.

Road and Bridge Director Billy Osborne advised staff requested estimates on what it would cost to do each option; to repair the damaged section of the seawall will cost approximately $37,000; to demolish the entire seawall, remove it, and re-slope and re-sod the area would cost about $82,000; to fence off the failing section and install access gates would cost $2,800 and to fence the entire length of the seawall, which is about 1,400 feet, would cost about $11,000. He stated an alternate option would be to repair the seawall and vacate the entire length of the drainage right-of-way, which would cost $300 to advertise and record the vacation and $37,000 to repair that section of the seawall.

County Manager Tom Jenkins advised it would be turned over to the residents after the vacation. Assistant County Manager Peggy Busacca advised the County Attorney’s Office advised staff that if the Board wishes to vacate the drainage right-of-way, which was given to it by the Crane Creek Drainage District and is on the L-7 canal, it would require a change to the Ordinance; so there would be an additional step to amend the Code to contemplate that vacating before the vacating occurred.

Kimberley Sammons, President of Fountainhead Homeowners Association, advised she is speaking for the homeowners who live on Louvre Drive because the rear of their properties is adjacent to the Crane Creek Canal, which is County property. She stated at the rear of their homes is a seawall that is also the property of the County; and Florida Statutes dictate the maintenance and repair of the property lying within the County right-of-way. She stated several feet of the seawall are falling into the canal causing multiple problems such as safety hazards and washout; and removing the seawall and sloping the yards is not an option the homeowners are willing to entertain because it would punish them by taking away partial use of their backyards, some of which have swimming pools. She stated sloping is also not cost efficient for the County; and that leaves the option of the County removing and repairing the damaged area of the seawall then vacating the property to the homeowners. Ms. Sammons advised that option was discussed with the property owners and is an option they are willing to do as long as some other concerns are met; and one concern is that the entire length of the seawall be reinforced prior to the property owners taking possession of it. She stated there are approximately 350 feet of seawall that need to be removed and repaired due to it falling into the canal; however, the additional 1,130 feet is about 30 years old and could collapse at any time; and it is not feasible for the homeowners to incur the responsibility of a 30-year old seawall without it first being newly reinforced along with the repair of the 350 feet that is falling in. She stated the homeowners are also concerned about the workmanship that will be done on the seawall; they ask that a reasonable warranty be included in the contract so they have peace of mind that their new seawall will last; and once the entire 1,450 feet of seawall is in proper and safe condition, the homeowners have stated to her they are willing to allow the County to vacate the right-of-way and to take over the responsibility of the seawall in the future. She stated the Fountainhead Homeowners Association asks that the County make every effort to work with them and come to a fair and peaceful solution; they are willing to take responsibility of the property out of the hands of the County; and they only ask that the County first seek every measure to ensure the seawall is 100% sound and safe prior to that taking place.

Kathleen Nonocchio read a letter from the resident of 494 Louvre Drive, as follows: “The canal is located parallel to one of the most heavily traveled sections of Wickham Road. It is part of the urban environment. Florida Statutes allow replacing a damaged seawall where one previously existed. Repairing or replacing damaged sections of seawalls is preferred to sloping. Sloping will mean the damage or loss of established shade trees to property owners resulting in higher energy consumption due to the afternoon sun exposure. The opposite bank does not have a seawall. This has allowed vegetation, including a number of Brazilian pepper trees to establish in close proximity to the waters edge. Once established root systems will eventually form mounds in the canal decreasing the environment of the canal. The canal is accessible through a public playground and is used for recreational purposes. The vegetation along the opposite bank provides concealment for possible predators. Having the same potential on the bank in question puts children and pets at risk. The most important issue demanding attention is safety. Repairing or replacing the damaged section of the seawall is the quickest and least expensive method for the County to mitigate potential liability. Thank you for your attention in this matter.” Ms. Nonocchio advised in looking at the different options, her concern is the fencing; the land is washing away; as the seawall has deteriorated in the last six months, the land continues to wash away; and not having as much land there at the south entrance to Fountainhead, her concern is there is nothing holding the land back. She stated children and pets play in that area, people have screen porches, etc.; it is amazing how fast it is washing away the homeowners’ property; and that is a major concern when looking at fencing.

Charles Coffman advised he has a pool in his backyard; he had to come in ten feet from the property line to start the pool; there is a gas line in the easement; and if the property is sloped down that 20 feet, it will be a steep slope. He stated they have nice yards; his wife and he can sit outside and eat dinner and watch the alligator in the canal; but if the seawall is torn down, they may watch the alligator come and eat with them. He stated if the seawall is removed, their property values will drop; and he put a lot of money into his place and would not have done it had he known they were going to remove the seawall. He stated he has two big trees with a swing between them; it is a relaxing place to sit; but those trees will go if the County takes out the seawall. He stated if they slope the area, there will be weeds, cattails, and everything else and the County is not going to take care of it; it will be up to the homeowners to take care of it; and he hates to see it because his property value and aesthetic view will be reduced.

Chairperson Colon stated she wants to rely on staff for what would be the best way to resolve this problem; they have been out there and analyzed the situation; and she would like to get feedback from the Commissioners as well as the history of this seawall. She stated it had a similar situation about eight years ago and was supposed to have been fixed and vacated; the County never vacated it to the property owners; and if they did, the Board would not be discussing the issue.

Commissioner Carlson inquired about the eight-year history of the seawall. Mr. Minneboo stated it was probably during Hurricane Erin when they had erosion problems and the County fixed a section of the seawall that was damaged at that time. Commissioner Carlson requested Mr. Minneboo elucidate further for the folks who are listening so they can understand the Board’s position. She inquired when the seawall was constructed, and if the County did not construct it or permit it; with Mr. Minneboo responding the County did not construct or permit the seawall. Commissioner Carlson stated the County has the right-of-way, which is 20 feet and includes the seawall because the seawall was built inside of the right-of-way; and inquired what is the position of the City of Melbourne since Fountainhead is in the City; with Mr. Minneboo responding although Fountainhead is in the city, the canal comes under the Crane Creek Drainage District and all its assets were given to the County many years ago; therefore, the City feels it is the County’s problem to address.

Commissioner Pritchard stated an option offered by Ms. Sammons is to repair the entire seawall of 1,480 feet; and inquired what would that cost; with Mr. Minneboo responding generally seawalls cost about $100 a foot. Commissioner Pritchard stated that would be $148,000.

Commissioner Carlson inquired if this would set a precedent if the Board agreed to physically go out there and it is not an emergency scenario, since there are numerous canals on Merritt Island that have seawalls, and would the Board be expected to replace those when they fail. Mr. Knox advised the Board would not necessarily be setting a legal precedent, but it has policy issues to consider; and inquired if it does it for this one, where would it stop. Commissioner Higgs stated the County did not put in the seawalls.

Chairperson Colon advised Scott Ellis was the Commissioner of District 5 at the time; and requested his feedback.

Clerk of the Courts Scott Ellis advised the issue goes back further to the late 1950’s; Mr. Donovan and Mr. Wickham worked out a number of barter arrangements when Fountainhead was built; although the County did not put in the seawall, part of the deal was it would dig out the L-7 canal; and the shell that came out of that canal became the roadbed for Wickham Road. He stated in return Mr. Wickham moved Wickham Road to the west to allow Mr. Donovan to keep the commercial property on the west side of the canal; so it is not a real simple issue. He stated he went through this in 1995 and 1996 with Mr. Upner because the initial response the Board had was that it had been the homeowners’ responsibility until staff determined that the back 20 feet was actually owned by the County. He stated Mr. Donovan turned the seawall over to the County just as if he had built a sidewalk on County right-of-way as part of his development; so the issue then was to fix it. Mr. Ellis advised he does not know if it was an emergency situation or not, but the Upners’ and Nonocchios’ seawalls were falling in; the area cannot be sloped; there are probably four to five feet from the water to the top of the seawall; and if the County sloped it, the entire back portion of their yards would fall into the canal over time. He noted there are utilities back there also so the Board needs to retain the utility easement. He stated he recommended to Helen Voltz, in 1996, to fix it and vacate it and that way the property owners would know it is their seawall and property. He stated currently being County property, it is debatable whether they can go in there and fix it on their own; it is a difficult situation; anyone who grew up here in the 1960’s would know how fast the County was growing; there were barter deals made throughout the County; and this is just one more the County is trying to work through.

Commissioner Pritchard stated what the Board has is an attractive nuisance; it has a seawall that the County owns; it has 20 feet of property that is an easement; and it has homeowners who live there where anyone can wander off and fall into the canal. He inquired why was it not vacated in 1996; with Mr. Ellis responding he left office and Commissioner Voltz had a different list of things to do so it must have gotten lost; he does not know how else to describe it; but it was happening in 1996 when the County finished repairs to the seawall. Commissioner Pritchard inquired if there is any indication the remainder of the seawall is in disrepair; with Mr. Ellis responding not all of it; however, the seawall does not just go north and south, it also bends and wraps around by the tennis courts; and he is not sure about the right-of-way situation on that side, but not all the seawall is falling in, so it should not be estimated at $100 a foot times the length of the seawall. Mr. Ellis stated the County may find a couple of portions, when it goes in and does the tests, that are falling in. He stated removal of the seawall is not going to be an easy process; it is a very wide canal; and he does not think the County has a piece of equipment that could reach across that canal, so it would have to somehow put a piece of equipment in there with probably four feet of water and muck and get it out again. He stated the County cannot go into those people’s backyards to do the work; it is not set up like a canal maintenance easement; at one time it may have been thought to be a maintenance easement; but it was never kept that way and the County will never get a piece of equipment up and down that seawall. He stated he thought the best thing to do was to fix it and vacate it; and then it would be clear that the property owners owned the seawall and it would be their issue. He stated he is not familiar with other canals on Merritt Island and if the property owners have seawalls within their property lines or if they also lie in the County right-of-way. He noted there was a problem in Indialantic where it was a drainage ditch and not considered a canal; so the Board will probably have different issues throughout the County. Commissioner Pritchard stated there are a lot of canals on Merritt Island where the property owners own half way into the canal. Mr. Ellis stated that would not be an issue because they know they own it. Commissioner Pritchard inquired if Mr. Ellis knows what the taxable value increase would be to the property if they were given the 20 feet plus waterfront; with Mr. Ellis responding no, and he does not know if that can be used with vacations. Mr. Ellis stated they did vacate property in South Patrick Shores and sold it for $12,000 or $14,000, but this is literally their backyards, and fencing it would be absurd and create more dangerous situations. He stated if a chain-link fence is put in their backyards, the children can go up and down the seawall without being able to get to and from the house; and if someone fell into the canal, they could not get back there to save that person without climbing over the fence; so a fence is not going to work, and no one wants to see a fence like that.

Commissioner Pritchard inquired if staff has any idea how many miles of seawall are in the County that could possibly become affected by the decision the Board makes today; with Mr. Minneboo responding there are probably 80 to 90 miles in District 2; when the lots were developed, a lot of people did not own into the canal; it was determined that the County owned the canals; and that is why they established a dredging program. Mr. Minneboo stated District 3 has five to six miles, District 5 has about 15 miles along the Indian River on the east side; and he does not know if there are any in District 1. He stated in support of what Mr. Ellis said, it is not an easy issue. Commissioner Higgs stated the seawalls were not installed by the County, but by property owners; with Mr. Minneboo responding they were installed by developers.

Commissioner Carlson inquired if having a seawall on the County right-of-way makes it the County’s seawall; with Mr. Knox responding if the seawall is within the right-of-way, it will be treated like it is the County’s; and if something happens and someone gets hurt, they will sue the County.

Chairperson Colon stated the fact that the County has confirmed that it is County property, if someone gets hurt there, it is the responsibility of Brevard County; this seawall is one that has come to the Board’s attention; it is knowledgeable of the problem; and it has to take some action. She stated she does not want to fix the entire wall, but do what was supposed to have been done and have it vacated, as that would be the most fair thing to do. She stated a fence is not an option because of deterioration of the seawall and future damage to homes and pools.

Motion by Commissioner Pritchard, to repair 350 feet of seawall in Fountainhead Subdivision and vacate the property to the abutting homeowners for the entire length of the seawall.

Chairperson Colon inquired how will the County pay for the repairs; with County Manager Tom Jenkins responding from the General Fund Contingency. Commissioner Higgs inquired how much is in that fund; with Mr. Jenkins responding $345,000 and the estimated cost to repair the 350 feet is about $37,000.

Commissioner Scarborough seconded the motion for discussion.

Commissioner Scarborough stated he heard the Homeowners Association’s concerns; there is no reason to do 350 feet then vacate it; and they need to do the whole 1,400 feet. He stated one of the problems of having individuals involved in maintaining it is there will be different levels of maintenance; it would be nice if there was a methodology where the County can get in there and make something work; and there are options available. He stated Mr. Minneboo mentioned there are miles of seawalls in the County; however, they are not in the same category as this seawall; the Board is trying to handle the issue of liability here; and it would not be fair to turn it over in a dilapidated condition. He stated the County has to repair it and remove the liability; there are a number of things still out there; this is the direction the Board needs to go; but he is not sure all the points he is interested in are resolved.

Commissioner Pritchard stated Mr. Knox brought up the issue of liability; the Board has an attractive nuisance in the 1,480 feet of seawall that the County has ownership of; and it needs to get out of the ownership business. He stated 350 feet has deteriorated and requires repair; so his motion is to repair the damaged section and vacate the entire length of the canal that will take the County out of the attractive nuisance business.

Commissioner Carlson inquired if the motion is to vacate the 350 feet that is repaired; with Commissioner Pritchard responding no, the entire 1,480 feet. Commissioner Carlson stated the Board is not going to replace all of it; with Chairperson Colon responding the Board is going to repair 350 feet and vacate the entire seawall; and that is the motion on the floor.

Commissioner Higgs inquired how do other seawalls in the County differ from this seawall; with Mr. Minneboo responding they do not differ, the only thing he would suggest, because he would hate to have everyone from Merritt Island come in here, is to put a disclaimer in the contract that this is the last seawall the County is going to deal with. He stated he has no problem with the motion, but is concerned that everybody watching the meeting will say why is their seawall different; so the Board may want to consider some disclaimer language. Commissioner Higgs stated she does not see any disclaimers; if it was a seawall that was built privately and on a public right-of-way, which would be the case in Merritt Island, they are going to then repair all those seawalls; and she cannot see that. She inquired about an MSBU for seawalls; with Mr. Minneboo responding the Board could create an MSBU to repair seawalls.

Commissioner Pritchard inquired how many seawalls on Merritt Island are owned by the County; with Mr. Minneboo responding he cannot answer that right now because he does not have enough money to determine every seawall on Merritt Island and what is in and what is out. Mr. Minneboo advised everything developed on Merritt Island was rectangular in shape; they cut into the parcels of land fingers and waterways; and that is how all of Diana Shores, Villa De Palmas, Waterway Manor, and Sykes Cove were done. Commissioner Pritchard stated if the seawalls are owned by the County, it is the County’s responsibility, so he cannot see where it is creating a precedent by repairing something on County property. He stated what the Board is saying is it will repair what is damaged and remove the attractive nuisance then vacate the property thereby giving the homeowners waterfront property. Mr. Minneboo noted staff is comfortable with that.

Commissioner Higgs inquired if the idea is to have it in a decent state of repair to vacate it, should the Board not move to vacate every other potential situation and get that over with before it has lines of people before it to get their seawalls repaired; with Mr. Minneboo responding that is a good idea, but he does not know if they can fund it because there are a lot of seawalls and issues out there. Assistant County Manager Peggy Busacca noted staff could give the Board a written report on what that would mean. Commissioner Higgs stated the Board should have the report before voting to begin going down this road because potentially there is a huge amount of seawalls to be repaired.

Commissioner Carlson stated there are going to be opportunities of the same sort the Board sees here with no doubt; there are scenarios like this that occurred throughout the County, as Mr. Minneboo alluded to and the County will be on the hook to replace those seawalls as it is replacing this one. She stated she agrees with starting the process and getting a report back on how many are out there that are in the County rights-of-way; and if so, they should proceed with vacating those if that is the most prudent thing to do. She noted the Board may feel it cannot vacate some, but others it could.

Commissioner Scarborough inquired if Mr. Minneboo knows if the County is maintaining any seawalls; with Mr. Minneboo responding no, it is not. Mr. Minneboo advised when they repair seawalls it is where the outfalls from the roadways have eroded because of erosion of the pipes. Commissioner Scarborough stated in this case, staff went out there in a storm event eight years ago; and inquired if there are other seawalls the County is repairing or is this the sole one; with Mr. Minneboo responding they did some on Merritt Island about ten years ago. Commissioner Scarborough inquired if they regularly maintain them on Merritt Island; with Mr. Minneboo responding no, that is an illustration he is giving the Board. Commissioner Scarborough stated this is an exception; he is willing to vote for the motion if two caveats are included; one is that the Board have an inspection of the entire 1,400 feet to see if there are other areas that need to be repaired; and to get the report Ms. Busacca mentioned as to the overall environment of all the seawalls. He stated in fairness to the comments made by the Homeowners Association, he does not want to dump junk on a homeowner and have them have something that has not yet collapsed, but is collapsing; and if the Board has liabilities elsewhere, it should do the same thing in each area. He stated the Board is doing this for two reasons; to be fair to the homeowners and also because the taxpayers of Brevard County should not have an extraordinary liability. He stated someone can fall into the canal and sue the County for a million dollars because he is in a wheelchair for the rest of his life. He requested that be added to the motion; with Commissioner Pritchard responding he will accept it. Commissioner Scarborough stated he can support the motion.

Chairperson Colon called for a vote on the motion as amended. Motion carried and ordered unanimously.

DISCUSSION, RE: SPECIAL MASTER PROCEDURAL REVIEW COMMITTEE REPORT

John Soileau advised he has been handling the special master function along with Stewart Capps for some time now; he started in 1996, and Mr. Capps joined on a year ago; the Board formed a committee that came up with very good recommendations; but in the minority report there is a suggestion that the standard of proof be clear and convincing evidence for the County and preponderance of evidence for the respondent. He stated in other words, if the respondent has a defense, it would be judged at the existing standard; but if the County has a case against a respondent, it would be judged at a very significantly higher standard of clear and convincing evidence. He stated those are two different standards, depending on who the party is that is speaking before the special master; and he does not think that exists in many places in the country and does not feel it would be appropriate to administer a dual standard of proof. He stated if the intention is to raise the entire standard of proof to clear and convincing evidence, then what the Board is going to do is require respondents in their defense to have clear and convincing evidence; and he is not sure that would help respondents, the County, or anybody. Mr. Soileau stated proposals regarding adding information, guidance, and copies of the file in the packets that go to respondents, for the most part are good and help the process by having more informed parties when they reach the special master hearing; and those should be adopted. He stated the Ordinance and Florida Statutes do not require those additional measures to be given to respondents, but that can be done and he is in favor of it.

Commissioner Carlson advised the Ordinance stipulates special masters have the ability to set out procedures for the process they use; Mr. Soileau has been a special master since the Board established the procedure; and inquired is there a reason why he has not put that in writing; with Mr. Soileau responding the Florida Statutes set forth procedural matters that give structure to the entire process; the Florida Statutes say the rules of evidence are not applied; he uses them as a guide; but he does not apply the requirements of the rules of evidence. He stated the County Attorney pulled together from the Florida Statutes and Ordinance all the parts and pieces; those contain a substantial set of rules of procedure; it is possible to add to that, which is the process they are talking about now; but all over the State, the process works with the enabling Ordinance of the County together with Florida Statutes, Chapter 162. He stated that is what Brevard County did for decades with the Code Enforcement Board; so at this point, what it is talking about doing is going a step further and adding additional rules beyond what is in the Ordinance and Florida Statutes Chapter 162; and some he agrees are good ideas to incorporate. Commissioner Carlson stated staff put together a document based on a set of procedures that were from a different county; they brought it to the Board; and inquired if Mr. Soileau remembers that. She stated it had different processes to use in terms of evidence, plea of noncompliance, extension of compliance, and that sort of thing; with Mr. Soileau responding it was produced several months ago. Commissioner Carlson inquired if Mr. Soileau had an opportunity to take the recommendations from the committee and overlay them on that suggested procedures, and if that met all the recommendations; with Mr. Soileau responding what was produced by the County Attorney some time ago, he reviewed and basically it pulled together Chapter 162, the County Ordinance, and a couple of good additional pieces of guidance in one place; so they can get it and read it and not have to run around trying to find it. He stated he thought it was a good document; it was provided to the Board and there were a number of negative comments on the document from members of the public at an earlier Board meeting; and around that time the Board formed the Procedural Review Committee, which he assumed would take that document and work out its recommendations for the Board. He stated he has not acted to put anything in place pending the completion of this process, but he believes it is a very good collection. Commissioner Carlson inquired if Mr. Soileau is not sure it fits all the recommendations the committee presented and has not looked at it in that way; with Mr. Soileau responding he just got the recommendations yesterday and they do not cover all that is in the rules of collection. Commissioner Carlson stated it does not include all of that, but she was just curious because it was a subset of what she would expect would be part of what staff put together already. Mr. Soileau stated probably the next step is to take what is agreeable in the committee recommendations together with the rule collection done by the County Attorney and produce a final document.

Commissioner Pritchard advised Mr. Soileau is his neighbor and he was in litigation with one of his partners a few years ago, which ended in a tie; and in other words he is neutral and can participate in this issue. He stated he is not being influenced in any way; he just wanted the Board to know that Mr. Soileau lives across the street from his home; and there is no conflict even though his wife is the President of the Homeowners Association.

Janis Walters of Valkaria advised due process in Brevard County is like the weather; everybody talks about it, but nobody does anything about it; and they have to do something. She stated by State and County Code the formal rules of evidence shall not apply, but fundamental due process shall be observed and govern all proceedings; and that applies to the special master hearings. She stated she did some research on due process; in this country, the integrity of the process is everything; and in the Code Enforcement hearings the fundamentals of due process are sadly lacking. She stated for example, notices given to respondents seldom include a description of the actual violation observed by the Code Enforcement Officer; the notices do not advise the respondents of their right to be represented by counsel nor that the case against them will be prosecuted by an attorney; and respondents are not advised of their right of discovery and often see the evidence against them for the first time at the hearing. She stated they are therefore deprived of the chance to prepare a rebuttal of the specifics of the County’s case. Ms. Walters stated the hearing must include proof of the elements of the plaintiff’s case; as it is now, the County does not have to present evidence of the original violation that initiated the process; they need only prove a greater than 50% likelihood of the alleged recurrence that led to the hearing; nor are County witnesses required to testify in their own words from their own knowledge. She stated the County Attorney often testifies as to the facts of the case and merely asks County witnesses for their affirmation. She stated the special master must by law provide the reasons for his decision and indicate the evidence of record upon which it was based; at present, the written findings make no reference to the evidence or his reasoning; based on documents supplied to the committee, it seems like the outcome of the cases are predetermined with Code Enforcement staff writing the special master decisions prior to the hearing; and partiality is hard to establish when a County Attorney prosecutes respondents for alleged violations of County laws in a procedure overseen by a County contractor whose support staff is made up of County employees who write up the decisions in advance. She stated there should be a consistent pattern for the conduct of all cases; at present some cases are extremely formal adhering to the code of civil procedure; some are inside out and backwards with the special master beginning the hearing by questioning the respondent; and that chaotic practice is inherently unfair. Ms. Walters stated she served on the committee to review the special master process; it is her opinion they were handicapped from the beginning; they had only five meetings; they were far too rushed to do a thorough job; one of the resource documents they received was a set of hearing rules written by the Code Enforcement prosecuting attorney that were never approved by the Board; and they were told that those were the special master hearing rules, which was not true. She stated the Code Enforcement attorney was invited to speak to them on October 1; she told them they had no authority to inquire into matters related to Code Enforcement where she thinks the process actually begins; that cut them off from the source of many of the due process deficiencies; and the Director of Code Enforcement made the following statement to them: “To say that the Board of County Commissioners or anyone else has the authority to tell the Code Board or the special master how to adopt their rules or conduct their hearings is kind of absurd and it goes against Florida Statute 162.08.” She stated his opinion was contradictory to what Mr. Knox told the Board on April 16. Ms. Walters stated the list of recommendations they discussed on November 22 was compiled by the committee’s clerk; in her opinion, a great many items that should have been brought to the Board’s attention were omitted; the clerk also supplied the committee with a copy of a written list of recommendations submitted by the special master after October 31; but a private citizen who attended each and every meeting presented a list of recommendations orally on October 31, and later provided it to the clerk in writing, but that list was not supplied to the committee. She stated it seems to her that interested parties have been given more access to and influence on the committee’s work than the general public; staff tried very hard to convince the committee that the special master process is fine as it is; if the purpose is to collect the maximum in fines and prosecution costs with minimum effort regardless of the merits of the case and the quality of the process, maybe it is fine; but if the purpose is to provide the due process required by law, she can tell the Board from personal experience, it is not fine. She stated the recommendations the Board received are just the beginning of the reforms and rules needed; it takes more than pushing the right number of papers through the system in the right order to provide due process; and requested the committee be continued to complete the job properly, including improvements to Code Enforcement to meet the fundamental standards of due process; and the committee be given a full complement of five members willing to do the necessary work to make the process what it is intended to be, an equitable, expeditious, effective, and inexpensive method of enforcing Codes and Ordinances.

Allyn Newman of Palm Bay advised he is doing a favor for Ms. Highmiller who sent a letter to the Board and asked him to read it, as follows: “I’m a law student who spoke on the special master issue at the April 16 Board meeting. I have just finished reviewing the audio tapes and the documents from the special master process review committee meetings. I am shocked at the way this issue is progressing. Citizens told their elected officials that there weren’t any rules governing the special master hearing and no due process. What was presented on April 16 was the most biased unfair set of rules imaginable written by the County’s Code Enforcement prosecutor who is not a disinterested party. Fortunately those rules were not approved by the Board. The Board tried to establish an impartial committee to craft reasonable rules. During the committee’s meeting, the County prosecutor along with the head of Code Enforcement and other staff members once again interfered. The committee was bombarded by staff’s biased point of view. Ten staff members spoke to the committee and there was only one speaker who had been through the process as a respondent. The County prosecutor would not allow the committee to investigate the special master process where it is initiated by Code Enforcement. She clearly interfered with the direction given by the Board of County Commissioners. On October 1 the head of Code Enforcement told the committee that it had no right to make the rules for the special master. What was most interesting is that this gentleman was at the April 16 Board meeting when Mr. Knox said that the hearing rules could in fact be crafted by the County and that the special master could be required by contract to use them. Why is the head of Code Enforcement offering the committee a legal opinion that contradicts the County Attorney? the Board allowed approximately six months for the committee to do its work; however, even with an extension, the committee only had five meetings over a two-month period to gather information, most of which came from staff, and prepare a list of recommendations. There were all sorts of games played on the committee. The Board’s Resolution describing their duties was not supplied by the committee. They were given notebooks containing staff rules that were rejected by the Board on April 16 and were told that those were the hearing rules in use. In many places the minutes do not closely match the audio tapes of the committee meetings. The minutes were edited, softened, and made politically correct. Two tape recorders operated by the clerk failed to record the October 15 meeting all together. I am very disappointed in the performance of the chairman of the committee. During the meeting of November 22, when the final list of recommendations was assembled, the chairman allowed a written document from the special master who was not in attendance to be considered by the committee without a vote; however, recommendations from a private citizen who attended, submitted orally at an earlier meeting, and in writing prior to the final meeting, were subjected to a vote before they were even granted consideration. This is discriminatory and in my opinion improper and unfair. In addition, this private citizen was not given an opportunity to comment before the final vote on the list of recommendations. At least three committee members signed their approval to the preliminary list of recommendations prior to the meeting of November 22. This list included a recommendation for a clear and convincing standard of proof of matters before the special master. The chairman who had previously signed his approval changed his vote in the meeting and removed this recommendation on a two-two vote. I failed to see how previously approved business can be overridden by a tie vote. The chairman was made aware of this but declined to restore it to the list of recommendations with a note that the committee was split on the issue. We need a higher standard of proof in this process because there appears to be, in my opinion, credible evidence that documents and evidence may be being falsified and altered by County staff. This evidence come from a letter written by a former Code Enforcement employee and from documents submitted to the Board by a respondent on April 16 and from the video tape of the August 8 special master hearing prepared for the committee’s review. One case on the video involved testimony regarding a document on which the dates had been changed. The chairman had the responsibility to make sure all sides and all available information and opinions were heard by the committee. There was no effort made to bring in a variety of respondents to hear their views. There was no review of special master meetings chosen at random to get a general idea how hearings were conducted prior to the Board’s decision to review the process. The one video prepared for the committee was not an accurate representation of the special master hearings based on my personal experience. I regret that time and other commitments prevent me from personally attending the committee meetings and contributing to the review. I feel that the Board's full intent has not been served. Sincerely, Cynthia C. Highmiller." Mr. Newman thanked the Board for listening to him.

Curt Lorenc of Valkaria presented a letter done by Mr. Broom to the Board, but not the Clerk, basically commenting on the special master process. He stated he agrees with all his findings and thinks it is something worth reviewing; for the past six years they had a special master process with no hearing rules; approximately 6,000 people have been run through that process; and he believes this is a violation of the 14th Amendment of the U.S. Constitution that requires due process by government. He stated that was brought to the Board’s attention and they definitely did the right thing; they directed the County Attorney’s office to craft reasonable rules; but unfortunately the County prosecutor for Code Enforcement was the one who wrote the rules and she was not an impartial party, and he does not think they were fair and impartial rules. He stated an advisory board was commissioned to work on the process; the advisory board was given quite a bit of time, but due to delays and other problems, it only had five meetings; and in the five meetings, it did quite a bit of work, but its work is not finished. He stated the Committee needs to look into the entire process; it needs to look into the Code Enforcement process and recommend rules for codification; and it needs to look into the County Attorney’s review process of the cases before the cases are brought to the special master. Mr. Lorenc stated it needs to look at any conflicts between County Ordinance and the Florida Statutes; he asked the Board to extend the committee’s work and get a new secretary; the present one is part of the process; and it may be better if they could get someone from the County Manager’s Office. He stated when they have a County Attorney as the prosecutor and an attorney as the special master it is reasonable to expect that they need to operate within the law; they need to offer due process; and if due process is not being offered, it needs to be brought to the attention of the County Attorney or this Board. He stated running 6,000 people through a process without any rules is not right; they should ask the Ethics part of the Board to come in and investigate; and they should look at what took place and offer recommendations.

Chairperson Colon requested staff provide feedback to the Board.

Code Enforcement Director Bobby Bowen advised Code Enforcement is only one of several agencies that utilize what is known as the Code Enforcement process for prosecution purposes; and Land Development has many Codes and Ordinances it enforces, as well as Environmental Health, Natural Resources, Code Enforcement, Building Code Compliance, and the Fire Department. He stated Contractor Licensing is not on the list due to the fact it has a similar process and a different special master to hear its cases. Mr. Bowen stated each agency is like individual police departments around the County; they all enforce their laws and their cases go to be reviewed by the State Attorney; in this case it is being reviewed by the Assistant County Attorney; and they are being placed on the docket for the judge, in this case the special master, to hear at a later date. He stated he has no influence over Natural Resources’ cases; they have no influence over his cases; they all work independently; and they all funnel cases downward through the matrix he provided to the Board in order to go through the process to prosecute their cases. He stated when the violator fails to come into compliance or has a recurring violation, that would automatically send the violator to the special master for a hearing; the special master hears the case in a quasi-judicial setting; and the respondent has a right to appeal to the circuit court if he or she does not agree with the special master’s findings.

Chairperson Colon inquired if Mr. Bowen wants to respond to any comments; with Mr. Bowen responding the process of enforcing Codes goes beyond his Section, which is Code Enforcement; the Building Code, Natural Resources, etc. have a responsibility of enforcing those Codes that are germane to their individual Divisions; and the burden of proving a Code violation does exist is quite simple for his particular Section. He stated generally a photograph or some other form of tangible evidence will meet about any standard; and raising the burden of proof to clear and convincing evidence would place an undue burden on respondents and every agency charged with the responsibility of enforcing performance standards. He stated clear and convincing evidence for a finding of fact in a civil action seems extreme; the intent of Florida Statutes Chapter 162 that the County adopted many years ago is to promote, protect, and improve the health, safety, and welfare of the citizens of Brevard County; and authorizing creation of a special master with the authority to impose administrative fines and other non-criminal penalties was to provide an equitable, expeditious, effective, and inexpensive method of enforcing the Codes. Mr. Bowen stated those administrative hearings, in his opinion, do not rise to the level of County or circuit court hearings; and the courts are not prepared nor do the judges want to be burdened with this type of civil action. He stated Florida Statutes Chapter 162 and Chapter 2 of the Code of Ordinances provide that the Code officer shall notify the violator and give him or her a reasonable time to correct the violation; it is only when the violation continues beyond the time specified for correction or a recurring violation does the Code inspector request a hearing before the special master; and 95% of all cases that Code Enforcement handles come into compliance before the compliance date and the cases are closed. He stated 5% actually appear before the special master; and the special master process is for prosecuting all types of Code violations. He stated staff is receptive to improving the way it does business and is always looking for ways to improve the process; he is in favor of the proposed changes that will make clear to the public its rights pertaining to enforcement procedures, notices of violations, notices of hearing, conduct of hearing, and appeals; Code Enforcement currently sends out with every notice of violation a brochure entitled “Code Enforcement Program” explaining the program and steps in the Code process and appeal process; and additionally, the Citizens Property Standards Guide has been available. Mr. Bowen advised with every complaint they receive, there is a complainant; there is also an expectation that the County will enforce its Codes in a timely manner; as enforcers of the Code of Ordinances of Brevard County, they must insure the rights of the accused are protected; and at the same time, they must also remember they have a responsibility to the complainant who has been affected by a violation of the Codes.

Chairperson Colon stated Ms. Walters said there was not enough time for the committee to appropriately give recommendations; and inquired what are some suggestions she was referring to; with Ms. Walters responding direction from the Board would help. Ms. Walters stated when they were given the information packet with the set of rules in it that were represented to be the special master hearing rules that turned out not to be the special master hearing rules, they were not told whether or not to use that as a template; therefore, they were uncertain as to the job that needed to be done. She stated they ended up focusing on glaring items that jumped out at them from information they were given by people talking to them and from the video tape they were allowed to see; but if the Board would like the committee to come up with a set of rules, they can do that. She stated a lot of the stuff that is coming out of Code Enforcement needs to be improved before it is even suitable to go into the special master process; that is just her opinion; but after learning what little she has about due process, it needs fixing and needs fixing fast. She stated she does not know how many more meetings would be required, but it would depend on how much the Board needs for the committee to do.

Commissioner Carlson stated she agrees due process is needed and is needed soon; it was laid out fairly succinctly in terms of what was expected from the committee; two points said powers, functions, and duties of the committee are to evaluate current processes and procedures related to the special master process for Code Enforcement, Contractor Licensing, and Nuisance Abatement; and all she heard about was Code Enforcement. She stated she did have a meeting with Ms. Walters and Mr. Lorenc and has some serious issues with the whole process only because the issue of impartiality came up; Mr. Lorenc brought it up because one of the attorneys who had a lot of experience with the special master hearing and Code Enforcement drafted what she brought up and talked to Mr. Soileau about; and inquired if that is true. She stated that is what was referred to Mr. Lorenc; and maybe Ms. Jones can clarify it. Assistant County Attorney Teri Jones stated she drafted those rules that Commissioner Carlson is holding following another jurisdiction’s rules. Commissioner Carlson stated Ms. Jones produced it and Mr. Soileau reviewed it; what Mr. Lorenc brought up is that it was not impartially done because Ms. Jones drafted it; and she has a problem with that because the committee is not impartial. She stated she discussed that with Ms. Walters because she felt it was inappropriate to have her on the committee only because she resides at the same address as Mr. Lorenc and Mr. Lorenc has been in front of the special master for many hours on Code Enforcement violations; so she has a hard time believing that her testimony was impartial. Commissioner Carlson stated she does not have a problem continuing the committee and giving it more time to come up with a set of processes utilizing what they have for contractor licensing because there are procedures for contractor licensing that she saw, but she does not think they were brought up in front of the committee. She inquired if the contractor licensing process was brought before the committee that was supposed to be looking at nuisance abatement and contractor licensing processes; with Assistant County Attorney Shannon Wilson responding regarding Ms. Walters’ comment on the rules Ms. Jones drafted, at the first meeting, when the materials were provided, they were provided a copy of the resolution in a notebook; they were provided minutes of the Board meetings that dealt with this issue; and they were provided the draft rules Ms. Jones put together. She stated she believes at that time Ms. Walters knew who drafted those rules; she asked to be sure who drafted the rules; and she clearly, on the record, advised them that those are the rules Ms. Jones had drafted, but they were not in any way to feel bound by those rules and were to look at this issue totally anew. She stated staff felt it was important to provide those rules to them to give them some kind of a template or outline of issues they may want to at least consider even if they came to different conclusions about how it should be written or what should be included. Ms. Wilson stated she did not know they were to deal with nuisance abatement; and her understanding was they were to deal with Code enforcement in general and how the special master procedure and hearing process worked from start to finish, and make recommendations in that vein. Commissioner Carlson stated the Resolution stated those three areas because those are the areas that have special masters. She stated in the booklet supplied to the committee, there are examples of Code Enforcement rules as staff thought they were and the contractor licensing and nuisance abatement were all provided to the committee, so they saw those. Ms. Wilson stated the Florida Statutes and Ordinance were provided. Commissioner Carlson stated she is talking about the actual copy of the procedures for the contractor licensing; with Ms. Wilson responding she is not sure what Commissioner Carlson means by procedures, but she knows the Ordinance was provided. Commissioner Carlson stated there are written procedures for the contractors licensing; with Ms. Wilson responding she believes it was provided at one point because the Contractors Licensing made its own presentation as well; so they had information from Code Enforcement staff, the special masters, and contractor licensing; and those particular people were invited by the committee. She noted she is not aware of anybody else the committee invited or wanted to invite to discuss any other issues. Ms. Wilson stated regarding input from the public, there were probably a total of three members of the public other than the committee at any given point and time; at the first meeting there were two other people besides Mr. Lorenc who attended; and other than that, no other members of the public came and spoke to the issue or seemed to have any concerns. She stated another point she wants to make is that she believes Mr. Roman contacted the Florida Association of Counties as well as the Florida Association of Code Enforcement looking for other entities that may have some kind of draft list; and they came up with very little; so apparently, this is a little bit of a groundbreaking area. Commissioner Carlson stated in her discussions with Ms. Walters in her office, they provided her with documents from Miami Beach; they have special master procedures on how to request mitigation of the fine, and a litany of general procedures before special master and went through every possible scenario plus a whole bunch of questions that people generally ask, which was a really neat template. She stated obviously Miami-Dade has similar situations as Brevard County does; and she knows the one that Ms. Jones used as her template was from a different city; so there are templates out there. Commissioner Carlson stated she is surprise staff did not use a template or the committee did not use their wherewithal to ask for some sort of template to start from, take the recommendations and apply them to the template, then make one big recommendation on the procedures they think are appropriate. She stated there was an attorney on the committee because Commissioner Scarborough put Mr. Broome on it; he also led the discussion and she appointed someone who had Code Enforcement background, but would be impartial so they had someone that came from Code Enforcement with the City of Melbourne; so she thought trying to get comments back and forth from them, there were some reasonable comments; but still nothing substantive seemed to have come from the whole effort, which did not have enough time to really produce a finished document or recommendation. She stated a lot of work needs to be done, but the Board still needs to have due process; so she does not want to see it drag on for six more months while other respondents have to come before the same and get the due process that the Board is hoping to have because it does not have the written rules of order.

Chairperson Colon requested feedback from Mr. Knox. Mr. Knox advised the Board has heard a lot about due process and ethics violations and everything else; he has been through the Ordinance and researched the issue of due process at length about two weeks ago in a different context entirely that had to do with zoning hearings; and he has been through the Code Enforcement provisions of the Florida law. He stated what the Board has is more than ample due process in its current Ordinance and current Florida Statutes; so what it is talking about here is not due process, but more due process than it already has; and that is where the issue is. He stated as far as ethics violations that have been alleged, he would welcome Mr. Lorenc to file whatever request or complaint he might have with the Ethics Commission if he wants to do that, or with the Florida Bar if that is what he wants to do, and let them investigate whatever it is he thinks has occurred; and he is not going to sit here and listen to that kind of accusation without at least making that invitation to him.

Commissioner Higgs stated the Board has some recommendations that will further its process and make it better; it seemed to have gotten in most cases, unanimous consent by the committee; so as a first item, she would like to see the Board adopt those recommendations and transfer them to staff for implementation. She stated then she would like to talk about what to do next; so her motion would be to adopt the recommendations of the committee and transfer them to staff for implementation.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt the recommendations of the Special Master procedural Review Committee, and transfer them to staff for implementation.

Commissioner Carlson stated they are wise recommendations that will help the process move forward, and hopefully improve the way things are handled right now.

Commissioner Pritchard advised his understanding of how this all came about is that Ms. Walters and Mr. Lorenc had an issue before the Code Board about putting their trash on the neighbor’s property; it happened several times; they wanted to do it; and the neighbor objected to it. He stated Code Enforcement went down there, and the due process part of it began; and eventually it ended up before the special master. He stated Mr. Soileau has been a special master for several years and developed his own rules of procedure; and those rules have not been questioned before. Commissioner Pritchard stated he has no problem with what Mr. Broome wrote; in essence he says pursuant to Section 2175 of the Brevard County Code, the special master has the power to adopt rules for the conduct of its hearings; and Mr. Soileau has done that. Mr. Soileau stated he conducts his hearings by the County Ordinance and Florida Statutes, which provide the entire framework necessary for that type of proceeding; that is what guides him through the process; but they can go beyond that, which is what the Board is discussing now. Commissioner Pritchard inquired if Mr. Soileau has rules and procedures that he follows for his hearings; with Mr. Soileau responding yes. Commissioner Pritchard stated Mr. Broome said the rules for conduct of hearings had never been formally adopted nor set forth in writing; but Mr. Soileau adopted rules, so they have been adopted. He stated Mr. Broome mentioned that the notice of hearing does not advise the violator of his right to have counsel present and that the County will be represented by counsel; that should be on the notice; and he also agrees with the other two issues and sees no problem with what Mr. Broome recommended that should be part of the notice of violation. He stated he had the privilege of going before the Code Board for someone in his neighborhood; it was effective and it worked; and the disgruntled party simply obeyed what had to be done and walked away, and did not take what could be perceived as vindictive action and try to change the entire process. He stated the Board cannot go to clear and convincing evidence; it is not someone on trial for his life; it is not a felony conviction; and it is simply trash on someone’s lawn or some other minor infraction and should be handled the way it is. He stated he understands Mr. Soileau handled over 7,000 cases at roughly $14 a case; with Mr. Soileau responding it calculated out at $14.76 a case. Commissioner Pritchard stated his point is it is a very effective way of doing the County’s business; if people violate the laws, they have due process; it is here and it shows; and they can go to the circuit court if they disagree with the special master. He stated the Board does not change the system because a few people are angry; it does not change the system because someone wants to put trash on his neighbor’s lawn and does not like being told he cannot do it; and it does not change the system because of some personal issue or because someone becomes vindictive and applies allegations toward someone who has been performing admirably. He stated he does not like it when people decide they are going to change something because they are upset with the outcome; and there are probably folks on death row who would like to change the system too; but that is where they are.

Mr. Soileau advised as to the statements made that there are no rules, that is simply not the case; the County has an Ordinance; it has Chapter 162, Florida Statutes, which many counties go with; so when someone tells the Board there are no rules, that is not the case. He stated they are not collected in one place; and mailing them out to respondents is a great idea. He stated as far as the orders being prepared in advance, that is absolutely not the case; there is a form that is brought to the hearing and has check-off boxes such as did violate, did not violate, etc.; he decides whether they did or did not violate the Codes; and those get checked off at the hearing. Mr. Soileau stated the reason the form is brought to the hearing is so they can get out to the respondents rapidly because sometimes they only have ten days before a fine starts; and in the old process with the Code Enforcement Board, and with him in the first few years, the orders were prepared after the hearings and would get to him a day or two later then get signed and mailed; and that is a slow process. He stated he wanted to clarify that there are no people walking in with already prepared orders that they are guilty; that is ridiculous; and actually having the orders there was to help respondents get their orders more quickly.

Chairperson Colon advised when she stated to the citizens that she would not like any personal attacks from citizens to the Board, she would also appreciate the Board having mutual respect for the citizens regarding personal vendettas and that sort of thing; and she wants to set the record straight right now for the Commissioners not to do that. Chairperson Colon stated when folks go before a process and feel it has been unfair, and they come to the Board, the Board at that time decides whether something was unfair or not or the perception is there; the perception of who signed off on the contract for the special master was the Director of Code Enforcement; so it was a perception issue. She stated she also asked staff not to shoot the messenger; they are going by whatever the Board has authorized them to do; so it was a matter of some tweaking that needed to be done; and there are some things that could be changed. Mr. Soileau stated including additional information in the packets is a great idea. Chairperson Colon stated that is a process that is very good because if it is a fine and a case where someone has to take off from work and if the process is also taken to a next day, which means the person has to take off from work again, that adds up, and a simple violation becomes costly; so those are things that need to be tweaked if there is to be productive communication among the Board, Code Enforcement, and citizens who have been through the process and feel there needs to be some tweaking. She stated the Board decided to have a committee to review the special master so the perception was not there; that was something that was very positive; so she is happy the citizens brought it to the Board’s attention and obviously it was supported by the rest of the Commissioners. She stated she wants the Board to stay focused on what it would like to accomplish at today’s meeting; Commissioner Higgs said there are things the Board needs to adopt; Commissioner Pritchard also stated some things are good in regard to what Attorney Broome wrote; so she would like the Board to get back on track and focus on those things.

Commissioner Scarborough stated he would like to recognize Mr. Broome who is here; and he has not put in a card, but is here to answer any questions from the Board.

Charles Broome advised given the time they had, he thought they worked hard, gathered as much information as they could, and everyone said only five meetings, but with everyone’s schedules and the notice that had to be supplied because it is public, they had to do the meetings when they could. He stated he thought they got a lot of work done in those five meetings; the issues they identified are good issues; a lot of those were unanimous, and some were not; but no one will ever get a group to be unanimous on everything. He stated the ones they were not unanimous on still pointed out issues for the Board to consider; a lot of issues dealt with information; and the Board heard Mr. Soileau and other individuals who spoke say informing the public seems to be a big issue. Mr. Broome advised for the committee to take on the duty to rewrite the entire special master process is a big deal; he does not think that is something that could be done by the committee in that period of time; he understood the goal to be try and improve the process; and they pointed out some issues that would improve the process. He stated to go further and try to rewrite the process may mean its demise; at some point it is going to be counterproductive; they worked hard and did the best they could; they interviewed everybody; and they only had a couple of members of the public come and speak at each meeting. He stated if there are any questions, as the chairman of the committee he would entertain those.

Commissioner Carlson inquired about the document Mr. Broome sent to Ms. Nardone; with Mr. Broome responding he does not have a copy of that and did not realize it would be discussed. Commissioner Carlson stated she was curious about his comments about noticing that were in there; and inquired if they were included in the recommendations or are outside the recommendations from the committee. She stated the Board may be interested in including those in the motion to make the process better. Mr. Broome advised the Clerk asked each of them if they had any notes to add to the recommendations to do that and that is when it was done; he believes they are incorporated but has not been able to compare those; but he believes all the issues he set forth in the letter, which the Board has read, are identified as issues in the report. Commissioner Carlson stated she just wanted to confirm that because they were good comments; and she wants to make a comment that was also mentioned by Commissioner Pritchard about keeping the standard in terms of preponderance of evidence for both respondents and the County. Mr. Broome stated the issue of burden of proof was raised as an issue and was voted on at the last meeting; a couple of committee members did recognize that it should be a heightened standard; but that was not a majority decision; however, it was an issue.

Commissioner Pritchard stated he agrees with Mr. Broome; the committee has gone as far as it needs to go; any further committee work in this endeavor regarding the special master is probably going to be counterproductive; and the recommendations the Board has are adequate, so that is where it should end.

Chairperson Colon called for a vote on the motion to adopt the recommendations and refer them to staff for implementation. Motion carried and ordered unanimously.

Commissioner Higgs stated she thinks there is more work that can be done and should be done; and she would like to see the committee’s work be extended an additional 90 to 120 days to further the two purposes set out and to clarify any issues regarding its concerns about due process that ought to be bought to the Board as recommendations.

Motion by Commissioner Higgs, to continue the committee for the purpose set out in the original Resolution for 120 days and to ensure that any due process issues it believes the Board needs to be further informed on come before the Board.

Chairperson Colon inquired if that also entails some of the questions that have come before the Board regarding discussion of Code Enforcement and all the other issues. She stated there was a little discussion in regards to that; and she wants to make sure they are clear in the direction the Board is giving to the Department and the committee.

Commissioner Scarborough stated Mr. Broome expressed concerns about how far this can go and still be constructive; and inquired if the Board should put some definitions in the motion so they have some understanding where and what they should be considering.

Mr. Broome stated if the Board feels that it is appropriate for the committee to convene again to make more recommendations, they would welcome some parameters and definitions and some definite guidelines of what the Board would like the committee to accomplish. He stated that would allow the committee to accomplish the goals of the Board in a limited amount of time. Commissioner Carlson inquired if Mr. Broome thinks they can accomplish additional things; with Mr. Broome responding he believes they identified all the issues they could identify with the information they were given; and aside from that, he heard the Board mention nuisance abatement. Commissioner Carlson stated that was part of the initial recommendation. Mr. Broome stated he cannot explain why, but that was not a big part of their discussions; they did have Code Enforcement issues as their main topic; they invited Licensing to speak and interviewed them; but the process for licensing seemed to be a little more structured than Code Enforcement, so given the time, they focused on what they felt were the biggest issues. He stated if the Board wants the committee to look at nuisance abatement or have a committee do that, he would suggest the Board do that.

Commissioner Carlson inquired if there is an issue in terms of consistency with the special master process among those three identifiable areas; and can the Board have the committee look at consistency in terms of how their procedures work on each given area. Mr. Knox advised if the Board is going to direct the committee to do something, it would be more helpful than what they have been doing already; it may be a good idea if they could look at the three different areas to see if there is any common ground that they could develop common procedures for; he is not sure nuisance is conducive to the same kind of procedures that Code Enforcement is; and without looking at it in-depth, it is hard for him to say. Ms. Wilson stated nuisance abatement is a creature for the Sheriff in terms of referring cases to the Code Enforcement Board; and to date they have not made any referrals; and part of the problem is staff has not had any experience with that.

Chairperson Colon requested Commissioner Higgs cite the parameters the Board would like to stay within so the committee can stay focused. Commissioner Higgs suggested the two issues that were part of the original Resolution and expand the review process by which violations come to the special master to ensure due process of law is upheld. Chairperson Colon inquired if Mr. Broome got the direction; with Mr. Broome responding that is how they approached their meetings; due process was the central theme they addressed; most of the recommendations do not have to do with laws and decisions; that was not the focus of their job as they saw it; they saw it as how can they make it productive for the County and the respondents with the focus on due process; and those were their recommendations. He stated if they are being told to go back and look at due process again, he does not see that they would come up with anything different as it applies to Code Enforcement; if the Board wants them to look at due process regarding licensing or nuisance abatement, and they are given more information, they would be able to interview more individuals in those areas and may come up with other recommendations in those fields.

Commissioner Scarborough stated at this time he would prefer the Board get something back. He inquired what areas do they think could be looked at constructively. He stated having heard from the County Attorney that the County far exceeds what is required for due process, he is not prepared to go carte blanch to due process this afternoon. Commissioner Carlson stated she agrees.

Chairperson Colon stated she would like for this issue to come back since the Board is not prepared to go forward today.

Commissioner Scarborough stated he is willing to proceed, but he would like to make sure that the Board does not waste people’s good time. He stated Mr. Broome has a law practice and has given up valuable time to come here; and in fairness to the people who participate, the Board should have something in mind that it would like to obtain in the end.

Chairperson Colon suggested Commissioners give feedback to Mr. Jenkins, and then it would come back to the Board on a later agenda; and inquired if that is okay with the Board; with Commissioner Pritchard responding that is fine.

Commissioner Pritchard reiterated that for the most part the Board has gone as far as it should go in dealing with the special master issue and Code compliance; the system works; making a few adjustments is appropriate; but making it into a project to twist it into something that becomes never-ending is not where he would like to see it go.

Chairperson Colon stated they have accomplished a lot; it was because of citizens coming to the Board that it needed to be tweaked; so she is thankful to everyone who was a part of the process. She stated the Board will get back to the committee, as there are Commissioners who would like to go further. Mr. Broome stated they will wait to hear from the Board.

The meeting recessed at 3:38 p.m., and reconvened at 3:52 p.m. Commissioner Carlson’s absence was noted for the remainder of the meeting.

AGREEMENTS TO EXTEND EXISTING CONTRACTS WITH STEWART B. CAPPS AND
JOHN L. SOILEAU, RE: SPECIAL MASTER SERVICES

Janis Walters of Valkaria advised she spoke earlier on the lack of consistency in procedures from one Code Enforcement hearing to the next and the inadequacies regarding due process. She stated Mr. Soileau came to talk to the Review Committee and admitted that he is aware the County’s notices do not advise respondents of the right to counsel; he told the committee he knows that many respondents are not even given the specific facts of the violations they are charged with prior to the hearing; and that is essential information. She stated the opportunity to conduct discovery is a fundamental of due process; when those fundamentals are lacking, due process cannot be provided to the respondent as required by law; and as Mr. Knox said, the Ordinances are fine, but the breakdown occurs in the actual doing of the thing. She stated people are not doing their jobs properly and that has to stop; Mr. Soileau admitted to the committee that he is reluctant to make respondents aware of their rights to request an extension of time to comply with an order because it would be an inconvenience to him; he admitted there are no written rules and procedures available and that he only explains the order of events in the hearings right before the contested cases start; and uncontested cases are always heard first, so those who do not contest a case do not have a hint of what to expect when their case is heard. Ms. Walters stated a finding of fact based on the evidence of record is another one of the fundamentals of due process that the Code Enforcement hearings do not fulfill; and the special master’s orders and decisions are written in advance of the hearings by Code Enforcement staff and are nothing more than a rehash of the notice of violation with fill-in spaces for the hearing date, fine amount, and guilty or not. She stated the pre-written forms do not meet the requirements of State and County laws, but Mr. Soileau told the committee he likes them. She requested Mr. Soileau’s services be dispensed with immediately and that Mr. Capps hear the Code Enforcement cases until new candidates can be interviewed for Code Enforcement. She stated she hopes this time the search will turn up a new Code Enforcement special master without six years of bad habits to break and that the Board will pay him or her enough to use his or her own clerk. Ms. Walters stated there is still too much County influence on the outcome of Code Enforcement cases for the process to be equitable to both sides; she believes one of the reasons Mr. Capps is able to follow a consistent pattern in his hearings is because the governing Code for contractor licensing is clear and specific; and suggested, if the Board continues the committee, that Sections 22-559 and 22-560, which outline the enforcement process for contractor licensing, be used as an example and template to improve the Code Enforcement hearing process. She requested the Code Enforcement staff be required to do their jobs properly and in conformance with their own policies and procedures to meet the minimum standards of due process and to avoid needless inconvenience, frustration, and expense for all parties involved. Ms. Walters stated for those who are uncomfortable with her serving on the committee, she would like to point out that she did not seek a seat on the committee; she was appointed by Commissioner Higgs and serves at her pleasure; and if Commissioner Higgs desires that she continue or not, that is fine with her. She stated she would like to mention that Commissioner Pritchard somehow got the facts of the case he referred to in reference to Mr. Lorenc wrong; that is another danger in making personal comments; and she has a question for Mr. Knox about burden of proof and clear and convincing evidence. She inquired if the County cannot prove its case, why must the respondent prove anything and how would the respondent prove a negative.

County Attorney Scott Knox advised usually the way it works is the County would have the burden of proving there was a violation by the current standard of preponderance of evidence; and if there is a defense the violator wants to raise, he or she would have the burden of proving, by preponderance of evidence, that he or she had a defense to what the County had proved. He stated that is the way it would normally work; and clear and convincing evidence is not in the picture yet.

Allyn Newman of Palm Bay advised he would like to show a videotape of the August 6, 2002 special master hearing that was made for use by the Special Master Procedural Review Committee as an example of a Code Enforcement hearing. Chairperson Colon inquired how long is the video tape; with Mr. Newman responding about five minutes. The Board watched the video of a special master hearing regarding catfish in the water lines.

Curt Lorenc of Valkaria advised the tape the County staff made for the committee was to show it how the process is conducted; there was not proper notice given to the person; the proper person was not served; and County staff testified as a group helping each other. He stated it is important to sequester witnesses if the case requires it; and those are all elements of due process. He stated the process can be improved, which would be good for all citizens of Brevard County; currently the 14th Amendment of the Constitution says, “No state will deny any person life, liberty, or property without due process of law”; and those elements are a little more critical on government actions. He stated one element is the right to counsel; and the Board has heard a previous speaker tell it that the respondents coming in are not informed of their right to counsel. He stated decisions need to be finding of fact and conclusion of law; the actual evidence the decision is based on has to be mentioned in the decision; that is by State law and also County Code; but what is being done right now is that the judge’s decision is typed up by Code Enforcement prior to the hearing, so there is no way to put the finding of fact and evidence it is based on in the document. Mr. Lorenc stated the arbiter in the case must be fair and impartial; in the County’s case, that person is an attorney who works for the County; and if he decided against the County, that may be something that could go against renewal of his contract. He stated he is not saying that is a problem, but it is something the Board can look at. He stated there are many other elements of due process; but when 6,000 people over six years are run through a process without any rules, it is time to take a look at it. He stated all the elements of due process were in the power of the special master to improve; and over six years he did not see the process improving. He stated in the special master contract there is a hold harmless provision; that is a real negative as far as doing the job properly; and that should be removed from the contract and a paragraph should be added where the special master would be asked to act ethically, fairly, and in accordance with local, State, and federal laws. He stated currently the Ordinance says the County Manager appoints the special master; State law says the elected body solely is supposed to appoint the special master without any intervention by staff or the County Manager; so the Ordinance needs to be changed. He stated the County needs to act according to State law; he has been disappointed in Mr. Soileau’s performance; six years is a reasonable time to have a process that is fine-tuned, but he does not see that today; so the Board should not renew the contract with Mr. Soileau.

Special Master John Soileau advised he has been misquoted by Ms. Walters, and would like to tell the Board what his observations were when he visited the committee. He stated it is possible for respondents to come in and ask for an extension of time to cure the violation if circumstances are shown to warrant it; and a circumstance could be the engineer did not get the work done on time and the deadline is coming up. He stated when anyone needs a continuance, it is readily granted once they come in and show the circumstances; but he does not suggest to respondents that the date does not need to be met and they can come back and get more time; and that was essentially the explanation he gave to the committee. He stated he has not seen committee members attend a special master hearing except Mr. Broome who attended one hearing. Mr. Soileau stated as for an attorney doing the job of special master retained by the County, Chapter 162 of the Florida Statutes says the County can appoint a special master and pay a special master; it would take a change to Chapter 162 to create some other scheme; so he is not sure what Mr. Lorenc had in mind. He advised the order has a space with lines specifically for placing findings of fact, such as junk and debris were in the yard, etc.; they are routinely filled in with the specifics that apply to each case; and no prepared guilty order comes into the room ahead of time. He stated he decides what check mark goes where; and since the Board appointed him in 1996, he has been retained by Orange County to do special master administrative process work as well as value adjustment work for the Property Appraiser in Titusville. He stated he has gotten no negative feedback and does not know of any court case finding that he denied due process; everyone involved with the thousands of cases he processed had the ability to appeal and have a determination that things were not right; but he does not know one that has occurred since 1996, except Mr. Lorenc. He stated Mr. Lorenc’s case was appealed, and no determination was made that due process was denied in that case. Mr. Soileau advised Mr. Capps is doing essentially the same thing he is doing and both of them are doing many of the things the Code Enforcement Board did until 1996; and out of the thousands of people he processed, he would ask the Board to review how many people have come and said they did not get a fair hearing or did not have a hearing before an unbiased person to determine their cases. He stated he is not wedded to the process; he can be compensated more at his office than driving to Viera twice a month and handling these cases; but he enjoys the work and is willing to continue if the Board sees fit to renew his contract.

Chairperson Colon gave Mr. Soileau a document that was brought to the Board’s attention; and stated she asked the Code Enforcement staff and Assistant County Attorney why the findings of fact were submitted to the special master before the case was heard. Mr. Soileau advised before the hearing, the “was/was not” was done in pen and corrected; “the respondents have/have not come into compliance” was done in pen; those determinations were not made before the hearing; and the thing that makes it a special master order is his signature, which does not go on the form until he has heard all the evidence and made a decision. He stated he does not sign any order that does not say what he has decided; and when he makes his decision, it is public and on tape, which anyone can hear and compare to the order. He stated there is no predetermination of any case; in an attempt to assist respondents, there is preparation of what the Board sees; but it is not marked “has violated, has not complied” and is not signed until all the evidence is in and he has heard the case and made his decision. Chairperson Colon inquired if the form was prepared before the hearing took place and was typed exactly like it was and submitted to Mr. Soileau; with Mr. Soileau responding it is a form; things such as dates, names, etc. and something like “recurring overgrowth” would be in it; and if he thinks that is not accurate, he will write something else; but typically they are handwritten at the time the determination is made and he announces it. Mr. Soileau advised the form was produced by the County Attorney’s Office that reviewed the Florida Statutes and determined what needed to go in it; when he started, he checked it against the Florida Statutes and everything that the Statute says is supposed to be in an order is in there; so that is the process. Chairperson Colon stated one of the questions she asked the Department was who prepared the form; the Board wants to ensure the perception to the public is that there is no pre-judgment before they get to the special master; and that is why she wanted to know who prepared the findings of fact and if it was someone from Code Enforcement or the Assistant County Attorney. She stated when someone goes before a judge, there are the defendant and prosecutor; everyone is supposed to be impartial; the judge should be able to make a determination based on the evidence given to him or her; and what she finds awkward is that the prosecution is handing the judge the findings of fact. She stated maybe she is misunderstanding it, but the perception is that the prosecutor gives the judge what he would like the judge to sign off on; and inquired if that is incorrect. Mr. Soileau responded Florida Statutes, Chapter 162 specifically says the County shall provide support staff to the special master or Code Enforcement Board; how the County does it is up to the County; it can take someone from Landscaping or wherever to do the function; and he understands the function has been moved at least once. He stated the County is paying that person regardless of what Department the person is pulled from; so if it feels having a County employee assisting the special master is problematic, he does not know how it can get away from that. He stated a change was made to create a position that would be administrative assistant to the special master rather than someone within the Code Enforcement function; that change has already been done; but maybe people will not like it no matter where the person comes from because it is someone the County is paying. Chairperson Colon stated that may be something the Board needs to discuss so that perception is not there. She stated the Board has changed a few things and tweaked a few things; and it was important for the Board to do that. She stated she does not have a problem with Mr. Soileau serving in the future as a special master; but when this issue was brought to her attention, she wanted to make sure the Board was clear on the issues and gave an opportunity to Ms. Jones to explain to the Board what it saw on the tape regarding the case before Mr. Soileau. Mr. Soileau stated he wants to assure the Board that he will not sign an order that he does not agree with or that does not reflect his decisions; and anything on the form that does not reflect his decision, he will change. He stated he goes through the orders to make sure they are correct; he is the only one who decides whether the order gets signed; and the support function does not decide or influence the case because he has a mind of his own. Chairperson Colon stated she would feel more comfortable if it was not someone from Code Enforcement so the citizens would not get that view. She stated Mr. Soileau has been very accommodating, and she appreciates that.

County Manager Tom Jenkins advised since the Board created the position, it was moved from Code Enforcement to Central Services. Chairperson Colon inquired when was that done; with Central Services Director Steve Stultz responding approximately in April. Chairperson Colon stated what was referred to was two months ago, but it took effect in April; and inquired what did she miss; with Mr. Stultz responding the clerk to the special master has been providing administrative support to both special masters since April; the form is a product of the database used by Code Enforcement to track various case information and basically a template by which the original violation is input into that database; and those forms are printed. Commissioner Scarborough inquired who prints the form; with Mr. Stultz responding Code Enforcement, Contractor Licensing, and various agencies. Mr. Stultz stated as to the findings of fact, the clerk to the special master inputs that information after the hearings.

Assistant County Attorney Teri Jones advised when the Board created the clerk to the special master, it had a matrix of what each person would do; one of the duties that was left with Ms. Doyle was to create proposed orders; it is not unusual for each side in a circuit court case to provide proposed orders to the judge or hearing officer; and the hearing officer is totally free to disregard the proposed orders and often does. She stated Agenda Item III.F.2. is a request not to appeal the case the County lost in front of the special master, because there are no grounds for the appeal. She stated Ms. Doyle is still producing the blank documents for the special master and they are given to the clerk to the special master to fill out with what he says during the hearing.

Chairperson Colon inquired if she heard correctly that each Department submits that form already in the format of findings of fact; with Ms. Jones responding the form that comes out is a blank form; they write down what the Code is for each case, what they are being charged with, and the special master fills out or circles “was or was not in violation” and signs it if he feels that is reflective of his determination. Ms. Jones stated sometimes the special master will throw out the form entirely; in Mr. Morris’ case, he threw out the form and created his own findings of fact, a written opinion, and did not use the form staff produced. Chairperson Colon stated so it is still being done.

Commissioner Pritchard advised he had the pleasure of serving on many boards, administrative, quasi-judicial, Bill of Rights hearings, EOC hearings, etc., and heard a variety of complaints; but one think he learned a long time ago is if it looks like a duck, walks like a duck, and quacks like a duck, it is probably a duck. He stated what he sees here is a vindictive action against Mr. Soileau, yet all the information he has on Attorney Soileau’s performance has been excellent. He stated the information he has on the performance of Code Enforcement has also been excellent; and his personal experience dealing with Code Enforcement was excellent. He stated he does not have an issue with what is going on here, but he has an issue when the Board has something that is vindictive in nature by people who want to play games through the subterfuge of improving the system, are embittered, and want to get rid of someone who is performing well. Commissioner Pritchard stated he disagrees with that and he does not mind stating his position on it; and those are things the public needs to be made aware of that the Board has bought into something that it should not have bought into a month ago or whenever it came up to revise the rules. He stated the rules are fine; making a little adjustment is fine; but when the Board talks about making major adjustments to satisfy a few people who are upset that they did not win their case, that is wrong and it should stop.

County Attorney Scott Knox advised it is not unusual for judges who hear cases for State agencies to require written findings of facts from the parties before they pick one.

Commissioner Scarborough stated the Board heard about the catfish in the lines; and requested staff explain it so the viewing audience will not be left in doubt. Ms. Jones advised the catfish case was in Aquarina; they have their own utility that runs the waterlines, overhead sprinklers, fire hydrants, and lawn sprinkler system; and apparently they are using water from a retention area and catfish eggs are getting through the screen and growing in the lines because the lines are not being maintained properly. She stated fireman usually get compliance on their cases; what the Board saw in the video was the first case she had in a Code Enforcement setting with the Fire Department; it was the first case the fireman who was sitting next to her had attended; and he was not prepared to answer questions from Mr. Kirschenbaum, but that was her fault as she should have prepared him better. She stated the hearing was continued; one of the problems they had with that case was that Mr. Capps is a resident of Aquarina and could not hear the case; it had to be heard by Mr. Soileau; Mr. Soileau was going out of town; and it had to be at that hearing because the next hearing was being covered by Mr. Capps.

Chairperson Colon stated one thing she wants to make clear, regardless of what people are thinking, whether it is personal or not, the Board witnessed on that tape that witnesses were talking to one another in the booth; that is improper; and she spoke to Ms. Jones who told her that was improper and something she wished had not happened. She stated those are things the Board is talking about; it needs to make sure there is a procedure in writing that says witnesses are not allowed to talk to one another; and those are the things that have to be discussed and tweaked. She stated she does not understand the Department giving the special master the findings of fact and saying sign off on it; there are some cases where he will not sign off; and inquired if the problem is the wording of “findings of fact” or just calling it evidence because that is what Mr. Soileau is getting. She stated he is getting a form and looking at it; and whatever he likes he puts in; but as a citizen she would feel the cards were stacked against her; and inquired what would Mr. Knox recommend. Mr. Knox advised the problem is there are a lot of cases, but the way he would prefer to see it done, which does not necessarily mean it has to be done that way, is to have a blank area for findings of fact and write them in. He stated the way they have it structured is Mr. Soileau basically makes a finding of fact of compliance or noncompliance; that is the finding of fact; and he announces it on the record that it is the finding. Mr. Knox stated anyone can go back into the record and find out the basis of the decision of compliance or noncompliance; but it is not written in the order. He stated his preference is to see it written in the order, but that is time consuming to try and write it out while trying to get the cases decided.

Commissioner Pritchard stated the problem Chairperson Colon is having is with the wording; and findings of fact do not become fact until it is filled in, circled, deleted, etc. He stated the form names the person with an address; that is fact; it has mail received on a certain date; that date is filled in and is fact; all those things are findings of fact; and they are done before the form is given to Mr. Soileau, so that it falls in line with everything that should be done. He stated there is conclusion of law; that part is written in; all of it falls in the proper order it needs to be; and it does not become the order until Mr. Soileau signs it. He stated it is not the form that is inappropriate, it is the wording she is not familiar with, but it is proper.

Chairperson Colon stated she is very familiar with findings of fact because the Board uses it frequently, especially when it has vested rights cases or zoning issues; however, she does not have the findings of fact before she gets to the hearing. She stated the Board first hears the case and all sides as well as all the evidence; then from there it gives it to the County Attorney to prepare the findings of fact; and that would seem to have been the issue. She stated it has been talked about long enough; and she would like to get a motion to extend the existing Contracts.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreements to Extend Existing Contracts with John L. Soileau and Stewart B. Capps to provide special master services for one year under the same terms and conditions provided in the original Agreements. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH OSCEOLA COUNTY, RE: MAINTENANCE OF
FELLSMERE GRADE AND SIX MILE ROAD

County Manager Tom Jenkins advised staff had ongoing negotiations with Osceola County regarding maintenance or roads; the only way to get to certain sections of Brevard County is to cross those roads; and through the efforts of Commissioner Colon, who met with the residents and Osceola County, the St. Johns River Water Management District has agreed to participate financially. He stated the Board approved a settlement with Osceola County for past costs of maintenance of those roads; Osceola County requested that settlement be incorporated into the new agreement, which now includes the settlement for past maintenance as well as for future maintenance; and it will be a four-way share among Indian River, Osceola, and Brevard Counties, and the St. Johns River Water Management District.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to execute Interlocal Agreement with Osceola County providing for reimbursement of maintenance costs for maintenance of Fellsmere Grad Road and Six Mile Road, and agreeing that future maintenance costs for Fellsmere Grade Road will be split equally by Brevard County, Osceola County, Indian River County, and St. Johns River Water Management District, and future maintenance costs for Six Mile Road will be split equally by Brevard County and Osceola County; and approve any necessary budget changes. Motion carried and ordered unanimously.

CONSIDERATION OF PAYMENT, RE: ATTORNEY’S FEES FOR MORDEHAY AND
JEANNINE LANIADO

Commissioner Scarborough advised the County Attorney said the fees were reasonable; and it was the Board’s tentative agreement to pay those fees, so he will move approval.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve payment of attorney’s fees in the amount of $13,831.34 for Mordehay and Jeannine Laniado’s attorney.

Assistant County Manager Peggy Busacca advised there has been no funding source identified for those fees nor the money they need to put in escrow for the improvements. Commissioner Scarborough inquired if the Board needs to identify a funding source; with Ms. Busacca responding yes. Commissioner Scarborough inquired if Ms. Busacca has a recommendation; with Ms. Busacca responding she does not believe it is appropriate to use MSTU money because it is on private property; with Commissioner Higgs responding it is in the right-of-way. Ms. Busacca stated the MSTU funds could be used for the improvements, but she is not sure they can be used for the fees as well.

Commissioner Scarborough stated he will make it part of the motion that the fees are to be paid from the MSTU fund if possible, and if not, the General Fund Contingency.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

STAFF DIRECTION AND LEGISLATIVE INTENT, RE: CONDITIONAL USE PERMIT
FOR A CHURCH

Zoning Official Rick Enos advised this is a request for staff direction to develop an ordinance that would eliminate the conditional use permit for a church in residential zones and replace it with permitted use with conditions, and establish conditions for location of churches in residential zoning classifications. He stated it does not affect churches in commercial zones or existing churches in residential zones; so staff is asking for permission to proceed with that. He stated there has been an alternative developed in the last week of the possibility of taking a broader approach and going with an institutional zoning classification; there are some advantages with that because staff can deal with more conditional use permits; and there are several that could fit into that classification. He stated it would take a little longer to develop that and would require Comprehensive Plan location policies to be developed; but it will be well worth it; and if the Board prefers, staff will be happy to go in that direction.

Commissioner Higgs stated the nature of most churches being built today is more consistent with the characteristics of commercial zoning; they are large churches with large parking areas and have multiple activities on multiple days that include schools; and unless the Board limits those in residential areas, particularly the size, it should put the use in BU-1, BU-2, and those type of areas. She stated they are high-traffic areas with lots of activities and are inconsistent with residential areas.

Commissioner Scarborough stated he agrees it has become more complex; but there are still very small churches that are not active except on Sundays and maybe Wednesday nights with a small number of people. Commissioner Higgs stated perhaps the Board could limit the size or square footage or something like that. Commissioner Scarborough suggested staff come back with further legislative intent so he can get a better feel for the situation that may be created. Commissioner Higgs stated that will be fine, but the Board needs to recognize what so many of the churches are developing into. Commissioner Scarborough stated he agrees, but he does not want to hurt a small starting church that has the capacity to move into something. Planning and Zoning Director Mel Scott advised staff will work on it expeditiously and bring it back.

Commissioner Pritchard stated maybe he is reading too much into it, but it says churches; and inquired if that refers specifically to churches or does it include mosques, synagogues, and other places of worship; with Mr. Enos responding it would be any religious organization; but that is the way the Code reads now. Commissioner Pritchard recommended the Code be amended to say places of religious worship.

STAFF DIRECTION AND LEGISLATIVE INTENT, RE: OUTDOOR RESTAURANT
SEATING IN BU-1 ZONING CLASSIFICATION

Planning and Zoning Director Mel Scott advised outdoor restaurant seating is not provided for in BU-1; and with the Constitutional amendment banning smoking indoors, the intent is to change the Code to allow outdoor seating permitted with conditions.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Option 1 and the legislative intent to amend Section 62-1482 to allow outdoor restaurant seating as permitted use within BU-1 and BU-2 zoning classifications. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: PARKING OF COMMERCIAL MOTOR VEHICLES IN
TOURIST COMMERCIAL ZONING CLASSIFICATIONS

Planner III Todd Corwin advised the intent is to allow commercial vehicles that patronize the establishments to park their vehicles in the parking lots.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve legislative intent to amend Section 62-2117 of the Land Development Regulations, to allow for parking of commercial motor vehicles in tourist commercial zoning classifications under certain conditions. Motion carried and ordered unanimously.

RESOLUTION, RE: AMENDING MAXIMUM TOWING RATES

Chuck McClelland of Chuck’s Towing Service, Inc., advised the resolution has been a culmination of almost two years of work they have put into it; they held meetings with towing companies in Brevard County to discuss the rates; and they had Lt. Pat O’Neal and Bobby Bowen there and were very productive getting everyone in agreement with it. He stated he is also the Professional Wrecker Operators of Florida Brevard County Chairman; it is a growing organization, which includes a lot of training for operators; and there is a law coming before the State Legislature that all wrecker drivers have to be trained and certified.

Bryan Royea with Kendall Towing, representing the towing industry, advised on July 10, 2001, they came before the Board and a Commissioner asked them to go back to the drawing board, which they did; and they searched nine counties and worked over 165 hours with Bobby Bowen and came up with the Florida rates by compromising and pulling an average from the rates of different counties. He advised of a meeting with 63 towing companies in Brevard County; a lunch meeting with Lt. O’Neal and Bobby Bowen in attendance; and their final agreement, which they have brought to the Board. He stated they are all members of PWF and have been in touch with the organization also; and they have come to a compromise and hope to put the issue to bed today.

Steve Lathem of Doug’s Towing, expressed his opinion that the resolution includes a small rate increase, but clarifies some terms they use in the towing industry; and requested the Board approve it.

Chairperson Colon requested Mr. Bowen tell the folks at home how much work went into making sure the rates were fair.

Code Enforcement Manager Bobby Bowen advised the State mandated counties to come up with the maximum towing rate for wrecker services for nonconsensual tows; they did that in 1999; and the companies came back for a rate increase. He stated the intent of the resolution is to protect the consumers from being price gouged; the men have worked with him and been patient waiting for him to confirm the numbers; they did a lot of negotiating; and he wanted additional language in the resolution that he saw in other ordinances. Mr. Bowen stated when the County first did the rates, it was one of three counties that had them; and as years have gone by, others have come on board and caught up, which allowed them to go back and look at other ordinances and their towing rates to see what they were doing. He stated there have been a lot of changes since 1999; rates have increased; additional language was put in to protect the public’s interest; and they have come up with one of the best resolutions by pulling from others. He expressed appreciation to the members of the towing industry and Lt. O’Neal with Florida Highway Patrol, who were very instrumental and helpful in assisting him because he could not have done it by himself. Chairperson Colon thanked everyone for the work that went into the rate structure.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution amending the maximum towing rate schedule. Motion carried and ordered unanimously.

RESOLUTION, RE: AMENDING RULES AND FEES FOR THE SAVANNAHS, HABITAT
AT VALKARIA, AND SPESSARD HOLLAND GOLF COURSES

Commissioner Pritchard stated his question is whether or not the County should get out of the golf course business, because from what he understands, it lost $825,000; and it does not seem like a good business practice to lose $825,386 by operating golf courses. He inquired when the Board last viewed the opportunity to perhaps pass the courses on to the private sector and let it be handled that way.

Parks and Recreation Director Chuck Nelson advised there are some ownership issues with each golf course that cause difficulty in divesting the County of the golf operations; Savannahs was a transfer that was related to the homeowners; and it would take every homeowner to agree to sell the golf course to get out of the business. He stated the County does not own the land at The Habitat at Valkaria golf course; it is on airport property; so there is no land to be sold, only the business and improvements. He stated Spessard Holland actually breaks even or makes money in any given year; it is on federal property; so in each case there are underlying difficulties in terms of divesting the County. Mr. Nelson advised staff has attempted to minimize the loss; in good years they were able to get that number down to about $250,000 for all the golf courses, which was remarkable; but as costs have gone up for operation and maintenance, they are losing a little of the edge, but think they will get some of that back with the new rate structure; however, they will not get all the way back to zero. He stated they also looked at maintenance through a contract as opposed to County employees; and that kept the numbers less than what they could have been. He stated a couple of years ago the Board approved additional dollars to improve the quality of the golf courses; so they have seen some improvement in those areas as well. Mr. Nelson stated they had difficult circumstances; all the golf courses in the area have suffered through 9/11 because it translated to fewer people traveling and staying shorter periods of time; and the courses make or break in that winter season; but they are hopeful it will improve. He noted it will be a while before they get to fully cover all the operational expenses.

County Manager Tom Jenkins advised the last time staff looked at the golf operations was last year as part of the budget cycle because finding $800,000 was extremely difficult to do; they look at every option short of closing the courses to rid the County of that $800,000 impact; but because of ownership restrictions, they were limited as to what they could do. He stated they eliminated a senior management position and a secretarial position to reduce costs this year; and the Area Managers for Parks and Recreation have picked up the supervisory responsibilities for the golf courses, saving approximately $100,000.

Mr. Nelson stated to the credit of the advisory boards, they did approve increasing the fees this year to assist with the costs. He stated with advisory boards, particularly those who are golfers, it tends to be an annual struggle to get rates to where he believes they belong in terms of the market, because if they are going to operate as a business, they need to be at a business level in terms of the rate structure; but the advisory boards did increase the rates as part of the proposal before the Board today.

Commissioner Pritchard stated when he talked about operating like a business, what he meant was the realization that golf courses are operated more like parks in that parks do not generally pay for themselves; so if the County is doing all it can to ensure it is getting the best return on its investment without pricing golfers out of the fun of golfing and having the courses operate at the optimum level that they can based on a variety of ways that they can as business managers make that happen, then he is supportive of that. He stated there is an issue at Savannahs Golf Course with people walking before 11:00 a.m.; he was told there are voids in playing time because they are not always filled with folks who like to ride golf cars; they are under the age of 18 so they cannot drive golf carts, so that would make them walk; and they cannot walk before 11:00 a.m., so it is like a Catch-22. He stated if little things like that could be revised to where it does not hold up play yet staffs the golf course with players, then the County should realize a higher return on its investment. He noted it is little issues like that; he is sure there are more out there that staff could address without raising the prices to the point where they are not competitive; and if they are County-owned courses, they need to be competitive at a lower cost than the private sector courses.

Mr. Nelson advised those are points well taken, and they deal with those kinds of issues on a daily basis; the walking issue is one that is always difficult because it is a financial issue as well; if they allow walking, particularly during the winter, it extends the length of the rounds and reduces the revenue; so they try to balance that. He stated they are not perfect, but they try to use common sense; if there is a gap in starting times, they do let walkers go out to fill those gaps; so they are not trying to stop anyone from playing. Mr. Nelson stated another thing is to strengthen the youth programs; they have done a significant job in terms of getting kids on the golf courses; so they are developing players of the future for the County courses. He stated one thing you will find in the golf industry is course loyalty; and if they can get the young kids to play on the County course first, there is a high probability they will continue to play that course as they learn and develop their game; so staff is trying to look at those avenues. He stated it also fits in with the softer park side of the operation, which is trying to give kids things to do of a positive nature and make it affordable. He stated he has to sometimes hold the golf managers back because they are almost too aggressive in trying to make money; they want to do the right thing, but they have to balance that with being a little softer; and having kids on the golf course has been beneficial.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to adopt Resolution amending the rules and fees for The Savannahs, Habitat at Valkaria, and Spessard Holland Golf Courses. Motion carried and ordered unanimously.

OPTION AGREEMENT FOR SALE AND PURCHASE WITH THE BOARD OF TRUSTEES
OF THE INTERNAL IMPROVEMENT TRUST FUND, RE: WGML INVESTMENTS, LTD.
AND PRN REAL ESTATE AND INVESTMENT, LTD.’S PROPERTY

Parks and Recreation Director Chuck Nelson advised this item is the continuation of the acquisition process and the transfer of the property to the State where the County will receive 45% of the cost back; and the State will return over a million dollars to the EEL’s program.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to execute Option Agreement for Sale and Purchase with the Board of Trustees of the Internal Improvement Trust Fund for transfer of 131.74? acres of WGML/PRN property to the State for a reimbursement of $1,080,000 to the Environmentally Endangered Lands (EEL) Program.

Commissioner Pritchard advised he understands the person who is willing to sell the property is only willing to sell it to the EEL Program; and inquired if that is correct; with Mr. Nelson responding there were some issues associated with that; there were two buyers in the area; one was a conservation group; and the group would only sell it to the County, but it is not this particular property, and may have been an adjacent property. Commissioner Pritchard inquired if staff knows what the tax loss would be to take the property off the tax rolls; with Mr. Nelson responding it is not part of the Agenda item and may have been part of the previous agenda item; but he would have to look at it. Commissioner Pritchard stated he assumes the number Mr. Nelson gives him would be based on current zoning; his concern is what economists call the opportunity cost; and inquired if the opportunity cost of this parcel is that it could be developed into something besides purchasing it and leaving it vacant, what would be the tax loss. He stated he is looking for a balance as to how far the Board wants to go if it has an opportunity to do something else with the parcel. Mr. Nelson stated that is information he can get for Commissioner Pritchard; the property is one of the core areas identified as basic components of the Endangered Lands Program so it will expand the core area and make it able to better sustain the scrub habitat in that area. He stated the criteria Commissioner Pritchard is referencing has not been a consideration of the Endangered Lands Program in terms of criteria for acquisition, so he is at a loss because it has not been a part of the selection management process; however, they can provide that information to Commissioner Pritchard. Commissioner Pritchard stated what he is suggesting is that perhaps it should be one of the criteria; he believes in land acquisition used for a specific purposes; but the Board is going to reach a point where its taxes will spiral out of control if it continues to take more land off the tax rolls. Commissioner Pritchard stated if there is property available for a specific purpose, he does not have a problem with that; if there is property that could be used otherwise, then he does, especially if the County has other lands that are under-utilized and sitting fallow because they either have hours of operation that are not considerate of public time off or are in locations where people cannot get to it. He stated those are the concerns he has with blanket agreements to continually purchase more and more land. Mr. Nelson advised the acquisition process is based on the criteria that was approved by the Board; and if the Board wants, staff can readdress that as part of the selection management process and bring it back to the Board for consideration, but right now it is not part of the criteria. He stated if the Board would like to see that incorporated, then he would like to take it back and place it as part of the criteria for acquisitions. Commissioner Pritchard stated at the last election one of the amendments that passed overwhelmingly stated the people wanted to know the cost of doing something, implementing legislation, etc.; and that is what he is looking for here. He wants to know the cost because when people do not know what something costs, they sometimes simply go ahead with it not realizing later that they had an opportunity to do something else with it or that the cost is going to be excessive; and then it becomes a question of where is the money coming from; so he would suggest that part of the selection criteria be to look at what the highest and best use for the property would be under an assumption like it was done for Sarno landfill, and then say it is worth whatever amount and the tax would be x amount; and that would be in essence what the County would be losing.

Commissioner Higgs stated in the case of this acquisition, the County already acquired it; and the action today is to get a reimbursement from the State of over a million dollars She stated the criteria being used by the Selection Management Committee is criteria set out in the original referendum, which is the biological criteria, not the fiscal criteria; but in this case, the action today will result in over a million dollars to the County. Commissioner Pritchard stated the sale price is $2.4 million, of which the County will get back $1,080,000 from the State; it cost the County $1,320,000; so it is not like it is making money on the deal.

Chairperson Colon inquired if there is anything wrong with putting that information in black and white and having it available; with Mr. Nelson responding they will add it as a standard part of the information that comes to the Board in the future; but not knowing the question was coming up, he was not prepared and apologizes that he did not have more information.

Commissioner Scarborough advised where it is going with an analysis is very complex; there are some developments that have a negative return; and different people have said a $100,000 house or less does not produce enough taxes to pay for the services it receives; so development in itself does not always create a positive flow. He stated the idea that there is a positive some place is true; and it is the case with commercial and industrial lands. He stated another issue is infrastructure; going back and redoing infrastructure with the land around it developed will result in astronomical costs if it is to four-lane a road; and even running water and sewer lines and running out of capacity will cause going back to the plan to run an entirely new line; so the cost is never really just incremental. He stated as development occurs, it goes off the scale in certain areas; but the idea that everything has to be looked at in the income producing mode should also be looked at if it is developed to see what is the cost to service that development; and if it did develop, there is also a cost to the developer in many different factors. He stated that needs to be weighed against the tax base because many times the tax base is far insufficient to pay for the development; and what it means is the people of the community begin to subsidize growth; and then the County grows poorer and not wealthier.

Commissioner Pritchard stated one of the many studies he has read from University of Florida professors and even Dr. Fishkind say growth pays for itself in spades; he was surprised when he read that; but they talk about the amount of money it generates and the multipliers. Commissioner Scarborough stated he has seen a lot of reports also and can share things without violating the Sunshine law; so he would like to send them to Commissioner Pritchard and have Commissioner Pritchard send him some of his reports. Commissioner Pritchard stated his point was the money that development brings in, according to what he read in his resources, it does pay for itself; and when looking at the multiplier effect of what one income has on the community, it is laid out. He stated it is not always a negative cost as suggested to build something; in many areas developers pay for the roads and turn them over to the County if they meet County standards; and he will be happy to pass on the information he has as soon as he can find it as he just moved and everything is still in boxes.

Chairperson Colon stated there seem to be two ways of looking at the same thing. Commissioner Higgs stated they would also have to assess the value of the open space to abutting properties, which would increase their values, so it is a fairly complex economic equation. Chairperson Colon stated the Board does not have to discuss it further, but in the future if Commissioner Pritchard wants to put it on the agenda for further discussion, based on information he has and shares, he can do that.

Commissioner Pritchard stated he appreciates that, but for now would like to know what the cost of doing something really is. He stated for example, the Sarno landfill purchase was valued at highest and best use, which it was not going to be used at; so there was a question about how the appraisals came and what the actual value of the property was. He stated if the County is going to purchase something based on appraised value, then that is the value of the property; and in that case, that was the situation and justification. He stated in this case the County is getting property for $2.4 million of which it will get $1,080,000; who knows what the real potential of that property is; it could be ten million or twenty million; and the effect on the tax roll is what he is interested in gathering. He stated it should be part of the process and something the public should be aware of; there is always a cost to do something; and there is no free ride.

Commissioner Higgs stated the value of the land, which is what the County buys, is valued based on its zoning and use at the time, not based on the development value; the County does not buy land based on its value with houses on it; it buys vacant land; and that is what it is based on not the development potential although that is a reasonable question to want to know the answer to. Chairperson Colon instructed staff to provide that information to Commissioner Pritchard.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

WAIVER OF TITLE EXCEPTIONS, ENCROACHMENTS, AND ACCEPTANCE OF
LEASES, RE: MELLON FOUNDATION PROPERTY DONATIONS

Commissioner Higgs advised the Mellon Foundation has been very generous to the County in providing lands for environmental preservation; and the Board is grateful for the donations.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to waive objections to all title exceptions identified on the title commitments and encroachments shown by surveys of the properties being donated to the County by the Richard King Mellon Foundation, authorize staff to close on the properties with the existing known environmental site conditions, and accept all existing leases.

Parks and Recreation Director Chuck Nelson advised staff did a limited Phase II assessment of the properties; there were a couple of empty drums and a crankcase on one of the properties; those have been removed; and staff is awaiting the final written report, but is comfortable that there are no issues. He noted staff was told verbally there were no issues.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: COASTAL SETBACK AND CONTROL LINES ORDINANCE
AMENDMENTS FOR SETBACK VARIANCES

Mark Shantzis of Melbourne Beach stated the changes to the variance language are excellent; however, page 2, paragraph 8 says, “maximum extent of any variances granted under this section shall correspond to”; and inquired if “correspond” means not exceed; with Environmental Management Supervisor Virginia Barker responding yes. Mr. Shantzis suggested replacing “correspond” with “not exceed” because the word “correspond” is open to all kinds of interpretations. He stated if someone comes to the Board to get a variance on property to build because of accretion, the Board should be cognizant of the fact that it may be accreting now but that may change in the future; one of those changes is taking place now; and presented documents to the Board, but not the Clerk. He stated eventually the whole polar ice cap will disappear, if not by 2050, sometime shortly thereafter; as that melts and the sea level rises, properties that are possibly accreting now may be depleting 30 years from now; and the Board may be putting itself in a situation where it will get a big maintenance problem for somebody it gave a variance to. He stated if the Board is going to give variances, which is a benefit, it should notify them that in the future in the event there is depletion they take the risk of armoring, seawalling, or adding sand on their property to circumvent the County’s future expenses. He stated the Board should notify them or say in Article 12, with notification signature confirmation by all purchases of oceanfront, riverfront, and canal-front properties that may erode in the future with reference to the portion of the property that is touching the water, so that it is fixing the problem of seawalls and the County’s maintenance cost and people complaining about their property eroding over time. He stated the problem arose over the last 30, 40, or 50 years, so in the next 30 years, as all those properties turn over into new ownership, those new owners, when they buy the properties, should sign off saying they understand the risk of buying the property on the ocean adjacent to a seawall or canal, that it may fall into the water, and that it is not the responsibility of the County to worry about the maintenance 30 years from now when the sea level rises or when nature takes its course and the properties get eroded, and it becomes the responsibility of the new owners. Mr. Shantzis stated he is just suggesting it as a possible idea; the problem cannot be fixed tomorrow, next week, or next year; it is a problem that arose over a long period of time; and property is eroding now at a faster rate than it did over the last 100 years. He stated it is probably two to four times the rate it was because of global warming and the caps that are melting; so he is suggesting that as a possibility. He stated what has now been declared internationally as important turtle nesting beach is located in Brevard County; and presented a letter from the Ministry Environment from Costa Rica to the Board, but not the Clerk, written to Governor Bush saying be careful what is done with the coast of Florida because the turtles that nest on the coast, primarily in Brevard County in the Archie Carr National Preserve, are turtles that travel all over the world and have significance as a species all over the world.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve legislative intent amending the Coastal Setback and Control Line Ordinance for setback variances, amended to change correspond to not exceed, and grant permission to advertise a public hearing to consider an ordinance.

Commissioner Pritchard inquired what is the net effect of the amendment; with Assistant County Manager Stephen Peffer responding in years past the Board heard requests from oceanside property owners to get relief from the setback line, which is 25 feet landward of the State’s Coastal Construction Control Line, which was for permitting purposes only and did not actually prohibit construction. He stated the County’s setback was more restrictive and recognized erosion on the coast; and this amendment will change the status quo from allowing the Board to give variances to the 25-foot setback line as it has in the past to a condition whereby the Board would only be allowed to grant a variance if the property owner can show that the beach has seen some accretion at the toe of the dune. He stated absent evidence to that effect, there would be no variance available to the property owner. Commissioner Pritchard inquired what is the setback excluding the 25 feet; with Assistant County Manager Stephen Peffer responding the amount that could be allowed in a variance is determined by the amount of erosion that has been experienced in the area, so there is no set answer because it differs. Mr. Peffer stated staff has erosion data from a number of years and that is what has been used in determining the amount of variance that could be granted; and the Ordinance addresses the areas north of Patrick Air Force Base differently from south of Patrick Air Force Base. He stated currently the Board looks at and considers the process where there was some erosion but still looks at the opportunity to grant variances on a case-by-case basis; the net effect of this amendment will put the Board in the position of only being able to grant a variance if there is accretion. Commissioner Pritchard stated it could prevent someone from utilizing his or her property and build a home if the amendment is supported; with Mr. Peffer responding it would place a setback condition on the property owners where they would not be able to build certain types of structures within 25 feet of the State’s Coastal Construction Control Line unless there was accretion; but that is not necessarily the same as saying they could not use the property because it depends on the unique configuration of each property; so there are many conditions in which the change would have no negative effect on an individual. Commissioner Pritchard inquired if there are properties that the Board allowed to be developed on the beachfront that are now suffering serious erosion and have an opportunity for the structure to fall into the ocean; with Mr. Peffer responding there are structures now that are threatened by erosion. Commissioner Pritchard stated by approving this change, the Board would be prohibiting structures from being built in an area that could be suspect to erosion within a brief period, excluding polar ice caps melting. Mr. Peffer stated if the change is approved, future construction will be less likely to be threatened by erosion. Commissioner Pritchard stated the concern he has is, while he believes people have a right to develop their property, he does not think they have a right to develop their property so that it puts them in harms way and the government has to bail them out by adding more sand to the beach. He stated on the other hand, he does not like the Board losing the authority it has; and that is what it will be doing by giving up its ability to make decisions in other situations. He stated while he is not in favor of building next to the water and having things fall in and have it become the County’s problem, he also does not like the idea of giving up the ability to make a decision at a future date.

Chairperson Colon called for a vote on the motion. Motion did not carry; with Commissioners Scarborough and Higgs voting aye, and Commissioners Pritchard and Colon voting nay.

Commissioner Higgs suggested it be brought back at the next meeting when the full Board is present; and requested staff add language that would establish some flexibility. Chairperson Colon stated her concern is taking away the objectivity and not being allowed to hear the situations on a case-by-case basis.

Commissioner Scarborough stated people come to the Board and may or may not get a variance; they go out and hire attorneys and engineers and spend an enormous amount of time and money with the expectation it is going to happen; what the change is looking at is whether there is accretion; but one major storm event can threaten everything along the coast. He stated a few years after he came into office, there was an enormous rainstorm in North Brevard and Volusia County; water flowed in sheets and people could barely drive through it because it was rushing water; yet that was a non-coastal event. He stated he has seen fire hazards that put the County in jeopardy; he does not want anyone to believe everything is gentle; nature can be extremely violent; and if the Board holds that there is no accretion but it may consider it and feel sorry for the property owner and approve it, then that risk is there. Commissioner Scarborough stated he cannot say whether the floods or fires are going to return; but he will not vote for it unless there is a good case of accretion because it would be a disservice. He stated it is ironic that one case they want to build closer to the water and the next they want the County to put in revetments because they are about to lose their homes; the inconsistency is horrific; and inquired if the Board wants to tell people one time they can do it, and another time turn around and say no. He stated he will go on record that unless there is accretion, he is not going to vote for any variance, and even then he would probably be doing them a terrible disservice.

Commissioner Higgs recommended the item be brought back the first meeting in January 2003; and stated the current structure of the ordinance is totally unacceptable, so she would be willing to consider something that gives some flexibility, and is close to what Commissioner Scarborough wants, that the Board not do it unless there is accretion. She stated to allow up to 25 feet is crazy; but there may be some reason to have some flexibility.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table the legislative intent on the coastal setback and control lines Ordinance amendments for setback variances until January 14, 2003. Motion carried and ordered unanimously.

*Chairperson Colon’s absence was noted at this time.

PUBLIC INTEREST DETERMINATION, RE: ISLAND POINTE MAINTENANCE DREDGING

Attorney Richard Amari, representing Towne Realty of Island Pointe, Inc., advised they received permits from the Army Corps of Engineers and the Department of Environmental Protection to maintenance dredge the marina basin; the permits do not allow them to go any wider, deeper, or longer, only to maintenance dredge the silt that has filled in areas of the basin; and Natural Resources Management Office told them they need to get the Board’s approval that it is in the public interest to do that. He stated the public interest is obvious; it is in the public’s interest to have the silt removed and to improve water quality for both aquatic and sea life; and the Corps has established a requirement of the permit that the dredging operation may only commence during the months of December through March, as a manatee protection issue. He stated their time frame is a serious issue; they need to have approval to be prepared to commence dredging immediately and make the window of opportunity of the permit; and he has Lois Edwards from Coastal Tech, the engineering firm that has assisted with the project, and John Grandlich to answer any questions the Board may have.

Commissioner Higgs stated the Board in the past approved some public interest determinations in regard to maintenance dredging; and inquired if there are any questions from Commissioners. Commissioner Scarborough stated if there are no problems, he will move approval.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to determine there is a public interest for maintenance dredging at Island Pointe Marina. Motion carried and ordered unanimously; with Commissioner Colon being absent from the room.

MANATEE PROTECTION PLAN, RE: STATE LEGISLATIVE PACKAGE

Vice Chairperson Higgs advised the item is for the Legislative Delegation, and there are no cards.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve the legislative request to have the appropriate State agencies pay for the expense of manatee protection.

Vice Chairperson Higgs stated the Delegations in the State have made it clear they are not able to fund these; and the response from Florida Fish and Wildlife Conservation Commission indicates it is not able to fund it; so she will vote against it. Commissioner Scarborough stated there is no problem in asking.

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

Chairperson Colon called for a vote on the motion. Motion carried and ordered; with Commissioner Higgs voting nay.

LEGISLATIVE INTENT, RE: COASTAL SETBACK AND CONTROL LINES ORDINANCE
AMENDMENTS DEFINING EMERGENCY

Natural Resources Management Director Conrad White advised staff has additional materials to hand out to the Board that may clarify some issues; and presented copies to the Board and the Clerk. Commissioner Higgs passed out a letter she received from the Caribbean Conservation Corporation to the Board but not the Clerk.

Bob Schuett of Melbourne Beach stated he was operating on the basis of talking with the staff yesterday, and all of a sudden he sees new material being distributed. Commissioner Higgs stated the material will be helpful.

Assistant County Manager Stephen Peffer advised when the Schuetts were before the Board, it discussed the County’s Coastal Protection Ordinance; and at that time they presented to the Board information indicating that they had an emergency situation and wished to take proactive action to protect their property. He stated the Board’s discussion about what constituted an emergency became a sticky point because the County does not have any criteria to determine whether an emergency exists or not; and it directed staff to come back with criteria the Board could consider and use in an ordinance. He stated this is not the time at which the Schuetts’ application is being considered; however, they are interested in what happens here today because when their application is heard again by the Board, the way the ordinance reads will make a difference. Mr. Peffer advised staff tried to reflect in its consideration factors what the State uses when it considers emergency; and staff felt that would be the most consistent way to approach it, using the State’s definition in a slightly different way for a different purpose. He stated the State is the permitting agency for protections such as proposed by the Schuetts; that is the geo-tubes; they would be required to obtain a permit from the State to do that; and the State’s permitting process requires they have assurances of local approval, which is that the Board has determined the project meets the local Code. He stated the Board asked staff to give it criteria to make the determination as to whether or not it wished to approve it, and to use emergency as being the criteria; so staff provided in the legislative intent some emergency criteria. Mr. Peffer stated the legislative intent is the Board’s opportunity to tell staff whether it captured the Board’s thoughts and ideas correctly; and if it did, to give staff direction to move forward and advertise a public hearing to consider the ordinance. He stated if not, staff requests the Board provide clarification and they will move on from there.

Commissioner Higgs stated she received a letter from the Caribbean Conservation Corporation; she thought there was concern about the expansion of the inability of the County to change the Code in regard to emergency; but there might be some reflection that it could do some revision in the Comprehensive Plan that would give it some way of dealing with structures in jeopardy that the Board would define. She inquired if staff can elaborate on that issue.

Mr. Peffer advised the State has a provision for allowing certain things to occur on the beach in what it considers to be an emergency; what the Board is addressing here is a different situation; that is a reactive situation to a coastal storm; the property owner has to do certain things in a certain time frame in order to qualify for the State’s emergency permit; but the Board is talking about a situation where individuals such as the Schuetts and other coastal property owners are trying to prevent damage to their homes and structures from erosion that already occurred over time. He stated it was staff’s understanding from the Board’s previous direction that it wished for staff to come back with language so it could consider those types of situations, not as an immediate result of a storm, but in order to prevent damage from a pending storm. Mr. Peffer stated staff tried to incorporate language used in the State Code to re-create that scenario so the Board could consider if a home is in imminent peril from a 15-year storm that could constitute an emergency under the ordinance; and if after a public hearing the Board determined it was something it could approve, then staff would provide local approval for the State to consider the permitting. He stated the local approval seemed to hinge on whether there was an emergency; staff has given the Board criteria to allow it to consider whether or not an emergency exists, that being imminent peril from a 15-year storm; and establish criteria where a professional engineer would have to weigh in and give that data to the Board; but staff is not talking about emergency permits for structures in the same way the State calls for emergency permits after a storm event. He noted they are two different things.

Commissioner Higgs inquired if that would go in the Comprehensive Plan; with Mr. Peffer responding staff proposed it as a change to the Ordinance. Commissioner Higgs stated when she talked to Mr. Knox, they discussed the problem with the State emergency; she understands in an emergency the County could issue a permit; but it would take on the liability associated with that. County Attorney Scott Knox advised the Board can issue a permit for a temporary structure, which has to be removed unless they get a permit from the State to put it in. Commissioner Higgs inquired if the County would accept certain liability if it did that; with Mr. Knox responding yes, if it affects turtle nesting. Commissioner Higgs stated under the Endangered Species Act, potentially the County could have in its Code or Comprehensive Plan a provision that if certain conditions exist, it might relax its requirements; and that would go in the Comprehensive Plan because the Comprehensive Plan would be the deciding document. Mr. Knox stated that would be the better place to put it, but it should be in both places to be consistent and make it clear what the intent is. He stated the Board would not want something in the Ordinance that is not reflected in the Comprehensive Plan.

Bob Schuett stated as he understands it, if there is imminent danger of collapse, there is no timetable, it is not related to a storm event, and it is only determined by a 15-year storm event. He stated when dealing with imminent collapse that is not related to a storm event, the applicant’s professional engineer makes a study based on a 15-year storm event; and if he determines there is an imminent collapse situation for the structure, there is no timetable such as is listed in the material that was handed out that said 30 days from a storm event; in other words, it is separated from a storm event. Mr. Peffer stated that is correct. Mr. Schuett stated if that is the case, he finds it an acceptable situation. He stated the Board has a number of situations, including theirs, where it is a situation of imminent collapse and the storm event occurred a while ago; so if it puts a 30-day restriction on them, they and several others are held out there and cannot do anything until the next storm comes along, in which case they would probably have a collapse of a structure. He stated he understands and can go along with this concept, which is going in the right direction; and it would be upon persons like him to hire a professional engineer to prove that a 15-year storm event would cause imminent collapse, which he feels confident it will in his case and a few other cases. He stated what is confusing is the handout; the first section speaks of timetables, which nobody can meet unless they had another storm; and that would be a difficult situation as they have lost their trees, bushes, and several feet of dune; and they have been trying for two years to get some action on this and have gotten with the State. He stated the State seems to be going along with them and now they have to get approval from the County; and that is why they are before the Board. He stated they are satisfied with the geo-textile tube versus a vertical wall; a vertical wall would be a better situation; but they would go along with the County if it determines the geo-textile tube is the appropriate thing to do. Mr. Schuett stated the County gave the previous owner a permit to build a house; they have done nothing wrong; it is incumbent upon the Board to give them an opportunity to correct the problem they have; and requested the Board get something in place like the ordinance being presented. He stated they are not asking the County to incur any costs; he wants the Board to look at the status of the property as it exists versus the time when the storm event occurred; and to focus on the problem and not the storm event because the problem is there. He stated he thinks it is a good idea to follow the State and streamline the procedure a bit; suggested the Board give Natural Resources Management the authority to approve the project based on the rules it sets or let the State have some say in it; and if the State approves it, then the Board ought to approve it also. He stated the reason he is suggesting that is the State has expertise none of them have; they have been doing it all over the State for years; they know all about the Archie Carr Refuge and what is going on; and they would get a fairness of application. He stated a wall is going up right now at the Seamark Condos; Brevard County wants everything done under the same conditions in the same way and that people be treated the same as others; and having the State involved accomplishes that. He stated quickness is the third issue; he is sitting with a structure that he does not know if a northeaster comes tomorrow if he will be in deep trouble; so it would be best to get an expedited situation that is fair, quick, and simple.

Ms. Barker stated if she can respond to some of what Mr. Schuett said, it might be easier for his son to respond to staff’s position. She stated she will explain how she sees the crux of the problem, and that is why the Board has the additional handouts to help clarify things. She stated they have two different kinds of situations along the coast; they have structures that are going to be vulnerable to collapse immediately following a storm and those structures are the ones that the County is supposed to have jurisdiction to address with its own temporary permitting procedures; and that authority is given to the County under the Florida Administrative Code. Ms. Barker stated the situation that the Schuetts, Fazios, Walkers, and other people have is that they have structures that are vulnerable right now without a storm event; the process laid out by the State for that is to apply to the State for a permit; part of their application has to include a consistency letter that says what they have asked to do is consistent with the local government’s Comprehensive Plan; and right now the Comprehensive Plan says no armoring south of Patrick Air Force Base except in the case of an emergency. She stated unless the Board declares an emergency, they do not have any way to issue the consistency letter; so one thing the Board could consider is a Comprehensive Plan amendment that says no armoring south of Patrick Air Force Base unless there is an emergency or there is a vulnerable structure that meets the State’s definition of vulnerability. She stated another option, which is what staff’s report tried to do, is redefine emergency as used in the Comprehensive Plan so that it would address vulnerable structures such as the Schuetts’ structure; and that is what the legislative intent tried to do. Ms. Barker stated there have been concerns in the letter Commissioner Higgs passed out from the Caribbean Conservation Corporation and in previous conversations they had with the State; the definition staff is proposing is not necessarily consistent with the State’s definition; and staff may have problems there, but they have not been able to fully sort out how that would work out. She stated the other option is to wait for a storm event and declare an emergency; staff contacted the State and asked how bad a storm has to happen for the Board to declare an emergency for those people; and the way the State permitting process works is the Board would declare an emergency, grant a temporary permit for a temporary structure, and the property owners would have 60 days to get their applications to the State. She stated the State does not care if there was a storm yesterday or two years ago; what the State cares about is if the structure is vulnerable, which those properties meet; so as long as the structure is vulnerable, the State does not care if it was a hurricane of the century or the wind blew ten knots out of the east.

Commissioner Higgs stated if the Board does not define it in its Comprehensive Plan as to what an emergency is, what is a vulnerable structure, and what would be a suitable method of protecting those structures inside the Archie Carr south of Patrick Air Force Base, the Board would be doing a tremendous disservice; just to deal with the definition of emergency is inadequate; and what she read from the CCC is that there may be a way to construct something that would be less environmentally detrimental, but it has to be done carefully. She stated if the Board throws it off to the State, it is going to end up with vertical structures, rock revetments, etc.; and there are ways to talk about it that could keep it more environmentally friendly.

Commissioner Pritchard advised it has been shown that vertical structures do not protect until the next storm event comes along and anything the Board could do that would be a little more horizontal would be better, not only environmentally, but to provide better protection. He stated if they put up a wall, five years from now the water will be at the wall; and that is what they are faced with in Miami Beach. He stated according to the State, the property owners are already in a state of emergency; and he does not know what the criteria is that would determine a state of emergency, but that is what the Board is trying to determine. Ms. Barker stated the property owners do not meet the State’s definition of emergency, but meet the State’s definition of vulnerability. Commissioner Pritchard stated he does not know what the State’s criteria is for emergency nor the definition of vulnerability, but something needs to be done to preserve those properties so their investments do not wash into the ocean. He stated when he first moved to Brevard County, he was told property on Cape Canaveral had 400 feet of shoreline and pine trees; when he saw it, the ocean was lapping against what was left of the foundation, the house was abandoned and condemned, and is no longer there; so he wondered why that was built so close to the beach, but what he found out was the ocean moved in on the property. He stated the Board needs to allow something that is going to provide protection to the homes that are along the ocean; the question is how is it going to do that; it needs to have a determination of what an emergency is and what it would consider to be a reasonable fix so that the people will not be faced with their properties washing away.

Clay Schuett advised he is an attorney and can appreciate the idea of the difference of words regarding emergency; but the point he wants to make is that this should not be tied to a storm event because it will bring up major challenges. He stated he saw the emergency Ordinance passed by the Board and staff’s recommendations; it appears that his parents would hire an engineer, the engineer would do the study and say by the 15-year model they have a vulnerable structure, then they would come to the Board at a public hearing and request the Board declare an emergency, and based on the testimony at that point, they would be entitled to put in geo-textile sandbags. He stated the only way they could get a vertical wall is to come to the Board and say the geo-textile sandbags are not going to do it, bring in experts who say that is not going to help, and every Board member would have to approve a vertical wall, not the geo-textile sandbags. Mr. Schuett stated his major concern is not having it tied to some sort of event because then it would get restrictive and the Board could get into a position where, because of its Ordinance, it would take away the value of property and get into a potential taking situation. He stated staff’s recommendation is a good system; the State’s emergency definition is slightly different than the County’s, and he can appreciate that from a lawyer’s standpoint.

Commissioner Higgs inquired does Mr. Schuett think they can maintain geo-textile tubes with three feet of sand over them; with Mr. Schuett responding he is trying to understand the question. Commissioner Higgs stated if the Board were to develop a Comprehensive Plan provision that in an emergency or situation three feet of sand be maintained over geo-textile tubes; and inquired if Mr. Schuett thinks that can be done; with Mr. Schuett responding he thinks so but he is not an engineer. Mr. Schuett stated when he first heard about seawalls, he thought it was going to be a concrete wall that could be seen; his understanding now is a lot of times they put in vertical walls and cover them with sand and put vegetation on them; so the only way he would say it could not happen is if an engineer says it will not be able to support the structure, but he cannot imagine that situation.

Mark Shantzis of Melbourne Beach advised the County determining what is an emergency or not is virtually irrelevant other than it is going to have hundreds of people coming in filing applications because that is not the test; the test in the Comprehensive Plan Policy 4.1 states, “No new shoreline hardening structures will be permitted in unincorporated Brevard County south of Patrick Air Force Base or within the Archie Carr Wildlife Preserve with the exception of emergency provisions as provided by Florida Statutes Chapter so and so”; so it does not matter what the County says is an emergency, the County’s Comprehensive Plan already defers to the State’s emergency procedures. He stated having staff rewrite all the emergency procedures is only going to allow somebody to put sand on the beach because the State further says in Chapter 161.54, Florida Statutes, “coastal or shore protection structure means shore hardening structures such as seawalls, bulkheads, revetments, rubble, mound structures, growing breakwaters, and aggregate or materials other than the sand. He stated geo-textile tubing equals vertical wall; they are the same by the State’s definition; and the State will turn down the emergency permit if the Board lets it go through because there is not an emergency by State definition. Mr. Shantzis stated the Board will be violating its own Comprehensive Plan Policy 4.1, which it cannot do; it will be sued by the CCC, U.S. Fish and Wildlife, and every environmental organization that is protecting all endangered species, beside the fact it would create a take as defined by the U.S. Government. He stated the Board cannot do it; it will bring upon the Board so much litigation and expense and staff time it will be incredible; so if the County loosens up what is determined an emergency, all it is going to do is get everybody on the beach to come in and give the County an application. He stated his house is on the beach about 220 feet from the water and is in imminent danger of collapse in a 15-year storm because a 15-year storm is defined as a storm that is going to bring in a surge and a wave of approximately 17 feet; if he went to get a permit from the State, if he lives in the habitable part downstairs at 18 feet, they will make him fill to 18 feet so the 15-year storm does not wipe out his living space. He stated what he must emphasize is all the Board is doing by passing an emergency change is bringing in hundreds of permits, and it will be misleading people into thinking they can get a permit by giving them permission to go to the State, which is going to turn them down because they did not have an event. Mr. Shantzis stated geo-textile tubing and vertical wall by the State’s definition are the same; and it says so in Chapter 161. He stated the Schuetts’ residence is in the Archie Carr National Wildlife Preserve; it will violate the Endangered Species Act to put a vertical wall in that Preserve; and it is not even clear yet that putting sand there does not violate the Endangered Species Act. He stated if it does, the U.S. Fish and Wildlife will come in and sue the County, or CCC will sue the County, or environmental groups would sue the County just as they did in Indian River County. He stated the only way Indian River County was able to circumvent that suit in State and Federal court was to do a habitat conservation plan (HCP); if the Board has an HCP, then it can do all those things that it wants to do within certain limits because the HCP allows it to harm endangered species and makes it mitigate something else for the taking of that endangered species. Mr. Shantzis stated he has to emphasize to the Board, unless it wants staff spending morning, noon, and night reviewing applications, which are going to go to the State and be completely turned down because the State’s emergency definition is different than the County’s definition, and because the County’s Comprehensive Plan states to go to the State’s emergency plan not to the County’s plan. He stated it does not matter what the Board does other than making staff work morning, noon, and night on things that are going to be fruitless.

Chairperson Colon stated she has spoken to Mr. Shantzis before; and inquired if there is any scenario where he feels that a homeowner should be allowed to get a permit or aid from the County if a home is basically collapsing; with Mr. Shantzis responding it is a great question because states all over the United States from Maine to Texas are trying to figure out the answer to that question. Mr. Shantzis stated North Carolina came up with the answer and said there will be no seawalls; and if you buy the property, that is too bad because you are a real estate speculator. He stated when you are purchasing property on a beach or waterfront or canal, you know when you buy that property it is vulnerable to erosion, so you have to incur the financial burden of that erosion and cannot put up a seawall and take the public’s beach above the mean high water line. He stated he is not the one who has an answer; the State has already written a law for people to follow; it is not up to him, it is up to the greater good of the public who owns the beach; he owns to the mean high water line; and if he puts in a seawall, the mean high water line in a certain period of time is going to be seaward of that mean high water line, which means he has now taken the public’s beach from them and eventually the public would not be able to get to the beach. He stated Miami Beach has gotten billions of dollars worth of sand after it allowed seawalls on the beach and took the beach from the public; that is not going to happen any more and the reason is the State is out of money for sand; the federal government shifted it from 80% pay to try and get down to 40% pay; and the federal government will eventually cut the entire sand budget out.

Chairperson Colon advised Mr. Shantzis he is pretty clear, but is taking time up from the Schuetts; and she would appreciate going back to them since she knows she did not misunderstand him.

Joann Schuett advised she has the State regulations, and under coastal armoring there is a whole paragraph that does discuss it; and read a portion of the regulation as follows: “Imminent collapse means the structures, foundations will fall due to its own weight under normal conditions resulting in structural damage of the supported structure.” She stated it talks about structures like theirs; she does not care if the Board wants to call it an emergency; she does not care what it calls it but they do have to have a situation where people’s investments are protected. She stated she is very familiar with the State of North Carolina, having lived there a long time and knows very well those laws were just passed. She stated she purchased her property in a state where no such laws existed; the house had been there for 30 or 40 years; no one told her it was in the Archie Carr National Wildlife Preserve; according to the gentleman who runs EEL’s, they are not legally in the Preserve; it is a philosophy; and the Preserve consists of four non-contiguous properties, three of which are in Brevard County and one in Indian River County. She stated no one, not the County, not the realtor, not anybody ever said the property was in Archie Carr National Preserve; and if they cannot fix their property because of that, then the Preserve can reimburse them for their loss. Ms. Schuett stated she resents people like Mr. Shantzis, who is allowed to speak and has no expertise whatsoever in engineering or anything else; his expertise is no greater than hers, and certainly not as great as an engineer and not as knowledgeable as a legislator or Board of County Commissioners; and the Board can let him speak, but not adversely. She stated Chairperson Colon’s question to him was very good; and inquired what does he want them to do, lose their whole life’s savings, and what allows him to call them real estate speculators.

Commissioner Pritchard advised the second paragraph of the Agenda item, second to the last line, says, “consider use of a fixed distance to determine the peril of major structures”; and inquired if there is any idea what the fixed distance would be; with Clay Schuett responding the only information he has on it would be hearsay, but it came from an engineer who deals with the State on this issue; and they typically use 15 feet; that is the only information he has heard, but he has not seen it written anywhere. Ms. Barker advised that was put in there at the request of Commissioner O'Brien who asked staff to look for a fixed distance. She stated the problem with using that in Brevard County is it is a very long county with a long shoreline and many variables along the shoreline with changes in beach widths and dune heights so a single fixed distance would not treat properties fairly across the length of Brevard County. She stated that is why they opted to mimic the State rule looking at vulnerability to a 15-year storm event that would be consistent throughout the County.

County Attorney Scott Knox advised earlier Commissioner Higgs asked him about the Comprehensive Plan and the Ordinance; after listening to the discussion, the gentleman who is claiming the County will be sued, especially over Comprehensive Plan issues, has a good point; and it goes back to the issue whether or not vulnerability and emergency are the same concept, which he does not think they are by Statute. He stated there is a Statute that governs issues of emergency, and defines vulnerability; and it allows counties to work into a program where future hardening permits could be issued for some time in the future; and what the Board is doing here is mixing vulnerability with emergency. He stated if the Board wants to incorporate the vulnerability concept into its Ordinance, it has to somehow reflect that in its Comprehensive Plan; and if it does not do that, it will be stuck with lawsuits that would probably determine those Ordinances to be inconsistent. He noted he does not think the Board can define emergency in terms of vulnerability.

Commissioner Higgs stated the Board has to look at its Ordinances and the Comprehensive Plan if it is willing to do anything; and it cannot reach around to the State’s emergency ordinance because of the way its Comprehensive Plan is currently. Mr. Knox stated it is going to take careful consideration as to how the Board is going to work those two concepts together and how that is going to interrelate with the State’s process. Commissioner Higgs stated she is highly skeptical and very much opposed to almost any instance of hardening of the shoreline; however, she is willing to try and look if there is some way the Board can help homeowners protect their structures. She stated she talked to environmental groups and with the CCC yesterday; there may be some way to do it; and they would have to get permits from the U.S. Fish and Wildlife Service similar to the way the Board does permits in scrub or other critical habitats, which would take care of the HCP because the affected property owner would be involved with the Fish and Wildlife Service. She stated she cannot say how she will vote at this moment, but thinks the Board should talk with various engineering, homeowner, and environmental groups because it is going to have, as the staff study showed, vulnerable structures. She stated the last thing she wants to see is rock revetments or vertical structures; and if there is some way that they can make it more environmentally friendly, she would like to continue discussion, but she does not think the talk of going to emergency is going to get there.

Commissioner Pritchard stated he agrees with the direction Commissioner Higgs is going; one thing he noticed in Cape Canaveral was fencing on the dune line used to build additional dune; and inquired if anyone happens to know how effective that type of restoration project is; with Ms. Barker responding it is only effective if there is sand there to be trapped; and in the case of these property owners, there is insufficient beach and dune width for sand fencing to work. Commissioner Pritchard inquired if the Schuetts’ home is in emergency status at this point; with Ms. Schuett responding yes, they have escarpment. Ms. Schuett stated when the storm occurred, they had just refurbished their beach at a cost of approximately $12,000 after Hurricane Floyd with an emergency field permit; they went on a trip and when they were gone, a storm came in and everything they put in was washed out, so they started to get a permit of any kind, are willing to compromise, and do not care just as long as they can save their home. She stated their property is 18 to 20 feet above sea level; they had a row of tree trunks because when there was a freeze the previous owner cut off the tops of the trees and left the trunks in to catch the sand; the storm took them out and it caused their beach to concave; and from that point on, they have been trying and getting no where. Clay Schuett stated to take it a step further, they did get a State permit under the vulnerability concept depending on County approval; so the question is, is their property vulnerable under the 15-year storm without an emergency. He stated that appears to be the case; they will bring in an engineer if that is the way they have to do it; and it is his understanding they were given a permit. He stated he talked to the gentleman who did all that; the only challenge was the County’s approval; so he does not know if that answers the question, but that is where they stand right now. Commissioner Pritchard stated it sounds like the Schuetts are going to lose their home if the Board does not take some action; and they have been trying to get action for weeks, months, or years. Mr. Schuett stated it has been over a year.

Chairperson Colon inquired if Commissioner Higgs would like to make a motion of what she would like to see done.

Commissioner Scarborough stated things have been evolving; because of the holiday weekend, briefings were intense; the Board has a long agenda; and Mr. Knox told about the structure and tubes. He stated one issue that was not brought up is if the Board did approve something that is three feet under sand, how would the methodology used to assure sand would be replaced and the turtle issue be bonded, whether surety or cash bond that does not have an incremental increase because it does not accrue interest; but the Board is not at that point yet. Commissioner Higgs stated she and Commissioner Scarborough were part of the original Comprehensive Plan discussion, which said no armoring south of Patrick Air Force Base; and inquired if he is willing at this point to consider some options with structures; with Commissioner Scarborough responding they would have to maintain three feet of sand above the tube for turtle nesting; and to do that the Board needs to insure it stays there or it will have problems with insolvency, how to go in and do it, and bonding. He stated if mechanically they can have something that is compatible with the turtles by having sand over the geo-tubes, the question is in a storm event how would they get in there and do it so they do not lose the turtles. He stated there are some mechanical questions, but they are premature in light of what Mr. Knox brought up today; the Board needs something further from Mr. Knox on how the Comprehensive Plan needs to be dovetailed with the concept of vulnerability and emergency because apparently the Board cannot go where it thought it could language-wise.

Chairperson Colon stated those are good points; Commissioner Higgs mentioned bringing groups together to see if there is a way to compromise and help the property owners who are experiencing erosion; and she was interested in the habitat conservation plan and getting feedback on that; but at least this is the start of discussions. Commissioner Higgs stated the individual permits basically become the individual habitat conservation plans; having been involved in trying to do a Countywide habitat conservation plan for three years and not getting the Board to pass it, she is highly skeptical of the HCP that would be something other than individual. Chairperson Colon inquired where does the Board go from here; with Commissioner Higgs responding she would like to have some additional work by staff with engineers and environmental groups to see if there is some ground that they can all stand on that might allow protection of structures and protection of sea turtle habitat as well.

Commissioner Pritchard stated his concern goes beyond the nesting of turtles to the nesting of people and what might happen to their nests while they are busy trying to resolve a potential conflict. He stated he does not like the feeling that he is being blackmailed or pushed into developing a habitat conservation plan and having to mitigate this, that, and the other because they are faced with an issue that they need to take action on. Chairperson Colon stated Commissioner Higgs mentioned that is not the route she would like to go right now; she said she has been down that road and it was not successful; so she would prefer to have staff, the environmental community, engineers, and anyone affected by this issue to come up with a way to resolve the problems. She stated right now their hands are tied; the Comprehensive Plan has to be changed, so it is not cut and dry; but it seems to be at least a start, which was not there before. She stated the Board can at least look at it and see if it is something it feels comfortable with. Commissioner Pritchard stated he does not have a problem with that; and he was not referring to Commissioner Higgs, but to another speaker.

Commissioner Higgs stated if the Board issues the permits, it will be in a position of probable liability; if the State is issuing the permit, then the State has the liability; that is a legal question; and the individuals, as it happens with scrub habitat, are responsible for their own HCP and working that out with the U.S. Fish and Wildlife Service. Commissioner Pritchard stated the problem he has with that is it could take months if not years; meanwhile people who have homes on the beach are in the position of losing their equity, their home, trees, and have lost property and a $10,000 investment in sand; and if the Board sits back and does not provide them with the ability to retain what they have and let them do something with the State or federal government, then what it has done is shifted the burden back to them and they are probably not going to get anywhere soon because it seems as if the wheels turn even slower once they get out of the County. He stated he would like to provide them the ability to restore what they had while the Board discusses how it is going to go about doing something; he does not know how to do that; and he is looking for direction of some way the Board can have a win/win situation on both sides. Ms. Barker stated they can apply for a State field permit for sand like they have done before, but it is not a guarantee it will save their property if a big enough storm comes along; however, it is something they can do right now that does not require Board action. Commissioner Pritchard inquired about installing geo-tubes or something that would make the sand stay in place; with Ms. Barker responding the Board has no authority to grant that permission today; the Comprehensive Plan changes it is considering usually come up every six months; and the other option is to do an emergency Comprehensive Plan amendment.

Chairperson Colon stated the Board has gone down that road before; this is the third time something similar to this has come up; and the Comprehensive Plan is where it seems to have tied the hands of the Board. She stated this is not new, but it is the first time she feels the Board is saying look at something that would be a permanent solution because this is going to happen again in a few months. She stated the Board is concerned about setting a precedent in the area; so it is back to square one. Commissioner Pritchard stated Ms. Barker offered a solution that the Board can propose an emergency Comprehensive Plan amendment; but he does not know what the wording would be or how specific it can be made. Natural Resources Management Director Conrad White advised if the Board authorizes an emergency amendment to the Comprehensive Plan, it is still looking at months prior to getting it approved by the Department of Community Affairs. Commissioner Higgs inquired what would an emergency Comprehensive Plan take; with Mr. Knox responding five votes. Commissioner Higgs stated it would require unanimous consent from the Board and she is not going to do it that way; and staff needs to sit down with various groups involved and try to come up with a reasonable solution, or she would stand with the Comprehensive Plan as it is currently. She stated she is willing to try and see if there is a way, but she is not going to support an emergency amendment to the Comprehensive Plan until they worked the process, meet with the groups, and put something together that is environmentally reasonable; and she is not sure then whether she would be willing to support it.

Chairperson Colon encouraged the Board to allow this to go forward, which is about the only opportunity it would have to come to a compromise. Commissioner Scarborough stated he would not want to violate the Comprehensive Plan and get into a lawsuit; somehow it seems to be irresponsible to be drawn into a massive litigation; and he is not going there. He stated he was willing to walk through the process today until the Comprehensive Plan issue arose.

Motion by Commissioner Higgs, to ask staff to work with various interests and see if there is some recommendation they can come back with in January so the Board can look at it.

Chairperson Colon stated she does not want to give a false sense of security to the citizens; it is a lengthy process; but it is something that needs to be done so the Board can help them permanently. She stated she has a motion on the floor; and called for a second. Commissioner Scarborough inquired what was the motion; with Commissioner Higgs responding to ask staff to work with property owners, engineers, and environmental groups to see if there is a common ground that would be environmentally sound legally within the Endangered Species Act and also assist property owners in protecting their properties. Commissioner Scarborough stated that is awfully nebulous; where he thought the Board was going was the geo-textile tube with the methodology of maintaining enough sand over it so it would not impact the turtles. Commissioner Higgs suggested asking the groups to look at that proposal. Commissioner Scarborough stated the geo-tube is what the applicant suggested, unless there is something else to be discussed that is viable other than saying put sand because they can always just dump sand. Commissioner Higgs stated sand is a viable option, but the Board can ask the groups to narrow it down to look at that particular proposal, the conditions therein, and see what comes forward. Commissioner Scarborough stated at least the Board would have something. Commissioner Pritchard inquired how long would it take for the groups, and how many groups is the Board talking about to come back with an answer about sand over geo-textile tubes; with Commissioner Higgs recommending the first or second meeting in January 2003. Commissioner Pritchard inquired if by the second meeting in January the Board will have an answer; with Commissioner Higgs responding it will have a reaction to that.

Commissioner Scarborough stated the Board is throwing out there a definitive concept; it is either like it, not like it, or never heard about it, rather than saying what do they think because then the Board will get every report that has ever been published; and he does not know if this is a middle ground or not, but it appears to be the discussion he had with staff yesterday.

Commissioner Pritchard stated it seems there is something that is viable and can work on both sides to provide a means to retain sand and save homesteads and a means for turtles to come on the beach and nest; but his concern is the more groups that get involved could delay it to March or June. He stated if it is by the middle of January that the Board can have a definitive answer, he is supportive of that; but he does not want it to drag out while holding those people hostage. Commissioner Higgs stated the Board is not holding anybody hostage. Chairperson Colon stated she wants the Board to stay focused; right now there is nothing the Board can do; so it should let the groups meet and come up with something; and if the Board feels it is not done in a timely fashion, then it needs to speak up. She called for a second to the motion. Commissioner Scarborough inquired if Commissioner Higgs wants the groups to discuss every possible situation; with Commissioner Higgs responding no, the geo-textile proposal with sand over it. Commissioner Scarborough stated if Commissioner Higgs wants to go back to that discussion, he is willing to go there. Commissioner Higgs stated not to go back, but to ask those people to analyze it.

Commissioner Scarborough stated okay, he will second the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

AMENDED GRANT AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, RE: GRANT FOR SHORE PROTECTION PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Amended Grant Agreement with Florida Department of Environmental Protection for $9,584,675 for the Brevard County Shore Protection Project. Motion carried and ordered unanimously.

RESOLUTION, RE: QUALIFYING AMERICAN MEDICAL PROCESSORS, INC. AS ELIGIBLE
BUSINESS UNDER THE COUNTY’S TAX ABATEMENET PROGRAM

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution qualifying American Medical Processors, Inc. as an eligible business under the County’s Tax Abatement Program and authorizing advertising a public hearing to consider an exemption ordinance. Motion carried and ordered; Commissioner Higgs voted nay.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 5309 YARBER AVENUE, COCOA

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to accept the special master’s recommendation not to reduce the accrued fine for Case #93-2270 of $2,002.00 for Betty Adams. Motion carried and ordered unanimously. (Reconsidered under next item.)

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIENS,
RE: 314 IRIS STREET, COCOA

Commissioner Higgs stated she does not find the recommendation from Mr. Soileau to be acceptable; and inquired if it can be sent back to the special master for further consideration or can the Board determine what it wants to do with them. She stated there are two from Mr. Capps that were reasonable recommendations; and the one from Mr. Soileau she does not think is reasonable. County Attorney Scott Knox responded the Board can send it back for further consideration or set the amount of money it would consider and make a decision here. Commissioner Pritchard inquired if Mr. Knox is suggesting dropping the fine by a percentage; with Mr. Knox responding yes. Commissioner Higgs recommended sending it back to the special master along with the previous item that she thought was a reasonable recommendation; and ask the special master to reconsider them.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to send the request for reduction of fine and release of Code Enforcement liens for property located at 314 Iris Street in Cocoa back to the special master for reconsideration. Motion carried and ordered unanimously.

Code Enforcement Director Bobby Bowen advised Items VI.D.2, 4 and 5, have the same attorney representing the owner of the three properties, it is his understanding he called and was not able to be here; he was told to call Administration; and he thought the three items were going to be pulled. He stated the attorney wanted to be here for Betty Adams who owns all three properties. Commissioner Higgs inquired if they did not want the Board to do it; with Mr. Bowen responding the attorney wanted to be here.

Commissioner Scarborough stated sometimes they are not happy with the special master’s recommendation and want it lower; and if the Board received a request to table, he would prefer to table them. Commissioner Higgs stated the Board needs to reconsider VI.D.2.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to reconsider the request for reduction of fine and release of Code Enforcement lien for 5309 Yarber Avenue in Cocoa. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table the request for reduction of fine and release of Code Enforcement lien for 5309 Yarber Avenue in Cocoa. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIENS,
RE: 145 PARNELL STREET, MERRITT ISLAND

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table request for reduction of fine and release of Code Enforcement lines for 145 Parnell Street on Merritt Island. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 115 DARWIN AVENUE, MERRITT ISLAND

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table request for reduction of fine and release of Code Enforcement line for 115 Darwin Avenue on Merritt Island. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-2-02-02 AND APPOINTMENT OF NEGOTIATING COMMITTEE,
RE: LANDFILL GAS UTILIZATION PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to award Proposal #P-2-02-02, Landfill Gas Utilization Project, to Energy Recovery Associates to build a resource recovery facility at the Central Disposal Facility; appoint Scott Knox, Euri Rodriguez, and Tom Jenkins or their designees to the Negotiating Committee to negotiate with Energy Recovery Associates, and should negotiations fail to establish a contract, to negotiate with the next best ranked proposer Ameresco; and authorize the Chairperson to execute the contract upon completion of negotiations. Motion carried and ordered unanimously.

RECOMMENDATION OF TOURIST DEVELOPMENT COUNCIL, RE: USE OF
SPACE COAST STADIUM

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve TDC Option 1 to continue current arrangement for use of Space Coast Stadium where a Major League team uses, manages, and maintains the stadium facility on a year-round basis and provides the County a minimum of 30 community days for County use. Motion carried and ordered unanimously.

DESIGNATION OF VOTING REPRESENTATION, RE: F.A.C.T.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to designate Commissioner Nancy Higgs as the voting representative for the Florida Association of Counties Trust. Motion carried and ordered unanimously.

REDUCTION OR WAIVER OF LIEN, RE: 9 OHIO STREET, COCOA

Motion by Commissioner Pritchard, to approve reduction of lien on property at 9 Ohio Street in Cocoa as requested by Jeannine P. Dittmer, agent for Barbara Whitley.

Commissioner Higgs advised the cost for labor, materials, and administration to demolish the house is $1,969.26; with Ms. Dittmer responding that is the lien in the Public Records.

Commissioner Higgs inquired if that is the cost to demolish the structure; with Assistant County Manager Peggy Busacca responding yes. Commissioner Higgs stated she would not be in favor of waiving that cost as those funds were expended. Jeannine Dittmer stated it is not her property, but it is owned by someone who is under guardianship; this is her only asset; and they are trying to sell it. She stated it is very inexpensive at $3,500; with the lien and other title problems, it is impractical; and the City of Cocoa lowered all its liens of about $15,000 to $329. Commissioner Higgs stated that is incorrect, and Brevard County reduced those liens. Ms. Busacca stated those liens were from the County and the Board reduced them on July 9, 2002.

Commissioner Pritchard stated this is a situation with extenuating circumstances; the owner is incapacitated; she is in someone’s care; the property is worth about $43,500; the County has a line of about $2,000; and it is her only asset. Ms. Dittmer stated she also owes three years of taxes that were not paid; and even when the property is sold, there will be hardly anything left because there are so many title problems that would probably require a quiet title suit. Commissioner Pritchard stated the County in its benevolent way can accept the $2,000 lien and be done with it, so he would support the motion to reduce the liens. Commissioner Higgs stated if the County did not expend funds on the property, it would be fine; but it did and the people of the County deserve to have that returned; so she will vote no on the motion.

Commissioner Scarborough seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

APPROVAL, RE: 2003 BOARD MEETING SCHEDULE

Commissioner Scarborough stated Commissioner Carlson is not here; with Chairperson Colon advising Commissioner Carlson shared with her what she wants, unless the Board wants to delay the item. County Manager Tom Jenkins stated staff needs to start advertising the meetings; and recommended approving the January and February 2003 schedule.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the 2003 Board meeting schedule for January and February 2003. Motion carried and ordered unanimously.

Chairperson Colon recommended the remainder of the schedule be brought back to the Board on December 17, 2002.

APPROVAL OF WRITE-OFF, RE: VARIOUS UNCOLLECTIBLE RECEIVABLES

Commissioner Scarborough stated there is a whole stack of things in the Agenda Report; when he looked at Barefoot Bay and Mims Water resources, there was data; but he has been advised staff did not have backup materials from some of the municipalities. He stated he will make the motion to approve, but notify those cities that the Board would like to have additional information.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve write-off of various uncollectible receivables, and notify cities that the Board would like to have additional information. Motion carried and ordered unanimously.

PUBLIC COMMENTS, RE: COST OF GROWTH

Joan Wheeler of Titusville stated she appreciates Commissioner Scarborough’s comments about growth and how much it costs; and inquired if she could quote him at the next City Council meeting; with Commissioner Scarborough responding please do.

PUBLIC COMMENTS, RE: PLASTIC PIER

Bea Polk of Titusville advised of various events that seemed like harassment to her about the new plastic for docks that her son invented.

BOARD COMMENTS

Commissioner Pritchard thanked the Board and staff for keeping his first meeting brief; stated they have broken him in very well; and it is definitely the longest meeting he has attended, but he enjoyed it thoroughly and is looking forward to the zoning meeting on December 17, 2002.

Commissioner Scarborough stated it has been good to have Commissioner Pritchard on board; he will contribute well; and thanked Chairperson Colon for doing a good job on one of the most difficult agendas.

Chairperson Colon thanked Commissioner Scarborough for the compliment, and staff for keeping her organized; and stated she also enjoyed Commissioner Pritchard’s questions and is looking forward to this year.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 6:57 p.m.

ATTEST: _________________________________
JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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