The Board of County Commissioners of Brevard County, Florida, met in special session on May 23, 1995, at 11:05 a.m. in the Government Center Multipurpose Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

TOWN OF MALABAR'S NOTICE OF INTENT TO FILE SUIT

Chairman Higgs stated the purpose of the workshop is to listen to the concerns of the Town of Malabar.

Rick Torpy, Attorney representing Town of Malabar, introduced Mayor Jerry Durand; and stated the Town's Administrator William Hall will be coming. He stated a special meeting of the Town Council was held; and if a decision is made today, the Council will advertise it and hold a meeting to approve any resolution in the Town of Malabar.

Chairman Higgs stated the Board met last night and passed the final revision to the Impact Fee Ordinance.

Attorney Torpy stated the Town Council's position is that this has nothing to do with impact fees; it is an important issue that is being overshadowed by the impact fee controversy; it has to do with the procedure the Board has used for impact fees for the Town of Malabar; in the Board's January 12, 1995 meeting, the final vote was collection for industrial development; and that violated the County's existing Ordinance and Interlocal Agreement with the Town. He noted this is thrust to the head because of Data Management which was at that meeting and talked to the Board; Data Management came to the County for its voucher; and staff gave it a voucher saying it owed no impact fees. He stated at the time that was done, that was not correct; under the existing County Ordinance, it did owe impact fees; and it was to the benefit of the Town of Malabar. He noted the issue and debate with the County is one of procedure; the Interlocal Agreement with the Town of Malabar required 45 days notice of any meeting where it discussed impact fees; that was not done; he has no debate or concern with the County amending its Impact Fee Ordinance; it has the right to do that any time it desires; and it has now run through retroactively and gone through the process of passing an Impact Fee Ordinance. Attorney Torpy stated the Town of Malabar now has the option of passing its own impact fee ordinance, creating impact fees, and collecting them in Malabar if it wants to; it is purely procedural; the County costs the Town of Malabar a substantial impact fee of $61,000; and this is an issue over the County ignoring a Contract with Malabar, ignoring State law which requires any ordinance to be amended by an ordinance, and ignoring its own ordinance which required the collection of impact fees. He noted that is, in short, what it is and where the problem lies.

Commissioner Cook stated he thought the Board was discussing this with the Town Council of Malabar; the entire Board is present; by commenting on this or responding here since the Board is not going to have a discussion with the Town, basically, it is the Board having a discussion with the Town's Attorney and the Mayor; and inquired is the Board building a record to its disadvantage by commenting here. He noted decisions cannot be made until Attorney Torpy goes back to the Council; it has to be negotiated; and inquired what is the point of the Board giving all its reasons for doing this when the Attorney has to go back to his Council to get any action.

County Attorney Scott Knox advised if the circumstances were different, he would say yes; but when the full facts are known to the Town of Malabar, the Board will not be at any disadvantage.

Attorney Torpy stated part of the determination of the Council is that there would be a delegation rather than the whole Council attending today's meeting; it was not practical; and the Mayor being the head of Council, it is his role to fulfill that.

Chairman Higgs inquired based on what the facts are and the situation, does Attorney Knox know how much is owed to the Town of Malabar. Attorney Knox responded the bottom line is what the County needs to worry about; staff has analyzed it from the standpoint of what the actual impact fee would have been had the Town come in and applied for it in the traditional fashion and whether or not it would receive any credits; and the answer the County received was that there was a net wash of any credits against impact fees, and there was no impact fee due.

Planner II Steve Swanke stated the County's current Transportation Impact Fee Ordinance includes provisions for options for the fee payer; he may present certain types of engineering and economic data that can be used to calculate an impact fee, or he has the option of choosing the impact fee listed in the rate schedule; and the County has taken information provided in the site plan submittal to the Town of Malabar that was prepared by B.S.E. Consultants for the Data Management Facility. He noted such information included an engineer's estimate of trip generation at the facility; staff plugged that into the equation that is listed in the Ordinance and came up with a substantial reduction; rather than a transportation impact fee of $1,010 per thousand square feet, staff estimates the impact to be $431.49 per thousand square feet; and the total impact on a facility of 56,332 square feet would be $24,306.69. He stated staff also considered that in the County's existing Ordinance, there are provisions that say any improvements, other than site related improvements, that are required as a condition of development order shall be credited against the impact fee, provided that the amount that it is credited does not exceed the total impact fee assessed on the development; from that perspective, Data Management was required by the Town of Malabar to pave a portion of Jordan Boulevard that is adjacent to its facility; it estimated the costs of those improvements to be $51,200; based on staff's review, those improvements typically would qualify for a credit; and that amount would completely offset the $24,000 impact fee that staff calculated.

Chairman Higgs inquired in order to adopt those credits, does the Board have to approve that; with Mr. Swanke responding the County's practice has always been to prepare a staff recommendation and present it to the Board, along with an agreement that had been reviewed by the County Attorney's Office. Chairman Higgs inquired was that done or is it done in retrospect; with Mr. Swanke responding that has been done in retrospect by staff at the direction of the County Attorney's Office. Chairman Higgs inquired have they been given the credit or could they be given the credit by staff; with Mr. Swanke responding based on the information they have provided to him, if they had requested the credit, staff would have given a favorable recommendation to the Board to grant it. Mr. Swanke advised the independent fee calculation is something that can be done administratively, but the credit is something that staff has always brought to the Board for its approval.

Commissioner Ellis inquired why did the Town require the Company to pave the road. Attorney Torpy responded much of Malabar is dirt roads; industrial and residential sites are required to bring the roads up to current development standards if they are the furthest property line; the property for Data Management extended beyond Jordan Boulevard; and the Company had to extend it from where the road ended being up to current standards to the end of its property line. Commissioner Ellis inquired does the Company own property on both sides of the road; with Attorney Torpy responding no, however, it is required to improve the property to its furthest property line.

Town of Malabar Administrator William Hall advised Data Management only did half a road, one lane. Attorney Torpy stated there is nothing else on this road; the question is why the Town required the Company to improve the road; and the answer is because the road runs in front of the property. Chairman Higgs noted that is the current Ordinance in the Town; and the Company complied with the Ordinance. Attorney Torpy stated impact fee or not, the Company has to do that in order to develop its site; it is part of the site development requirement, which is not what the County's Ordinance refers to; and the County's Impact Fee Ordinance talks about giving credits for improvements that were not part of the site development.

Chairman Higgs inquired does Mr. Swanke agree with Attorney Torpy's assessment that this would be part of the site plan and would not be eligible for a credit. Mr. Swanke responded staff looked at the provisions in the County's existing Ordinance; site related improvements means capital improvements, including right-of-way donations for improvements to the development in question; and direct access improvements include but are not limited to the following: site driveways and roads, right and left turn lanes leading to those driveways, traffic control measures for those driveways, and improvements to roadways other than collectors and arterials regardless of state functional classification. Mr. Swanke advised Jordan Boulevard is a public right-of-way not on the Data Management property; there are no driveways or turn lanes on the part that they pave that buy that type of access; there are no traffic control measures that staff could determine from reviewing the site plan; the Town of Malabar does list Jordan Boulevard as a major collector in its Comprehensive Plan; and it would seem that it would not be considered a site related improvement from the County's perspective. He noted that is consistent with its practice in dealing with other developments that have requested credits; in certain circumstances a shopping center will be required to improve an intersection, such as install a traffic light or put in turn lanes to lead to the site; and those have been disallowed as site related improvements; but there is a difference in character between what has been required of other developments and what has been required of Data Management.

Chairman Higgs stated Attorney Torpy indicated the concern was not so much with the dollars and cents of the issue, but the Town being advised prior to any action in any meeting dealing with its Interlocal Agreement; and inquired is that what the Agreement says. Mr. Swanke advised the Interlocal Agreement requires at least 45 days notification; the County notified all the Cities and Towns that participate that on January 12, 1995, the Board was going to consider an amendment to the Transportation Impact Fee Ordinance that would create a new category for manufacturing; but due to a problem with the advertisement, that was not done; the Board went on to discuss the issue and take the action to abate the collection of impact fees on industrial uses; and no one was given that notice. Chairman Higgs stated they were given the notice that the Board would discuss the new category of manufacturing in compliance with the Interlocal Agreement; with Mr. Swanke agreeing. Attorney Torpy noted the Town has no notice of that meeting; he saw in the Board's minutes that the County Commission was told there was at least 75 days notice of the meeting given; and the Town has no knowledge of that notice or how it was done. Mr. Swanke responded the Town was notified by mail; a copy of the Ordinance was provided along with a certified letter; and he should have that information.

Mr. Hall inquired about notification for the Ordinance that was passed last night. Mr. Swanke responded staff notified for the one that was considered for the manufacturing land use category being added to the transportation impact fee. Attorney Torpy inquired was that an addition of the manufacturing category; with Mr. Swanke responding yes. Attorney Torpy noted it had nothing to do with what the County Commission did; with Mr. Swanke responding no.

Chairman Higgs stated what was noticed was that the County would develop a new category for manufacturing; and the ordinance was sent to the Town. Attorney Torpy noted he asked Mr. Hall about that; if the County has that, it can show it to the Town; the Town may be wrong on the notice issue; and it has nothing that he is aware of about the notice that was required by the County. Chairman Higgs inquired does the County have it; with Mr. Swanke responding he will look for it. Mr. Swanke advised he remembers notifying all of the cities. Chairman Higgs inquired did staff notify the Town 45 days in advance; with Mr. Swanke responding he believes it was more than that. Chairman Higgs inquired where would the information be; with Mr. Swanke responding in his office. Chairman Higgs noted it is an important piece of information that the Board and Town need. Mr. Hall inquired when was the notice sent; with Mr. Swanke responding in November, 1994.

Commissioner Cook stated he agrees with Commissioner Higgs that the information would be important to know and verify.

Attorney Torpy stated another issue that needs to be discussed is whether Data Management is entitled to a credit or not, and whether it is entitled to any offsets because of site improvements or trip generations; as he understands the Ordinance, in order to seek a rebate or decrease related to trip generation, there is a requirement for competent information and engineering studies; he is not aware of any of those; Data Management has told him it has not spent the money to do that; and the Town of Malabar was not privy to the fact that County staff was doing this evaluation. He noted it was probably done after the notice of the Town's intent to sue to see if it could justify there were no damages; Data Management has told him that County staff had estimated its impact fees at the time of getting site plan approval at $61,000; there was a debate when the building was completed; the process under the County's Ordinance requires that the Town's Building Official inspect and provide a report, which was done; and that is forwarded to the County. He stated based on that report, the fee was set at $83,000; Data Management applied for a review of that under the process set up under the Ordinance; he and Mr. Hall attended that meeting and said if it is an issue of whether it should be $83,000 or $61,000, they did not have a problem with that; the Review Board determined that it was an industrial use; and under the existing criteria, the impact fee would be $61,000. Attorney Torpy advised that was also after the County Commission's meeting; there was a big debate as to what would happen with that, but that was the extent of the Review Board; and it indicated this was industrial as opposed to other categories that may have increased the impact fee. He stated Data Management finished and wanted its Certificate of Occupancy (CO); at the time the Company was given the voucher which said it owed no money, it was based on the County Commission's direction to suspend collection; and it was not based on any evaluation or calculation by staff that it was offset because of the things that have been told now. Attorney Torpy noted the things the Commission has been told right now are based on this evaluation and direction of the County Attorney in anticipation of this meeting today; there have been none of the required reports or studies done on the actual trip generation; the engineering studies have also not been done; Data Management is saying it is a different facility and will not generate the amount of trips that the Town's studies indicate it should; the Town told the Company to get the data as required under the Ordinance; but Data Management has not done any of that.

Chairman Higgs inquired does staff have certain criteria under the Ordinance in terms of studies that have to be brought to the County to document a different trip generation than is provided in the Ordinance. Mr. Swanke responded the information staff used came from an engineering report submitted to the Town of Malabar along with the site plan. Chairman Higgs inquired does that meet the criteria; with Mr. Swanke responding yes. Mr. Swanke advised it was not prepared specifically for the purpose of calculating a different impact fee, but it did include the type of information staff would need to conduct that process; and it was prepared by a professional engineer. Chairman Higgs inquired what specifically was advertised for the January, 1995 meeting. Mr. Swanke responded the specific advertisement was to consider an amendment to the Transportation Impact Fee Ordinance that would create a manufacturing land use category that had an impact fee of $487 per thousand square feet; it was to create a new impact fee with a lower rate; he does not know if the rate specifically was included in the advertisement; but it may have been.

Attorney Torpy advised Mr. Hall handed him a copy of what the Town of Malabar received; and January 10, 1995 is the date of that notice for the meeting on January 12, 1995. Chairman Higgs inquired is that the only notice the Town received; with Attorney Torpy responding he does not know.

Attorney Torpy stated he is surprised that staff has gone through this and said to the Board today that this is zero, even if it had not taken this action because it has been done without the Town knowing it was happening; Attorney Knox is posturing the County to say it does not make any difference as it did not cost the Town anything because of these things; the Town is aware of what Data Management has said; and the Town's position was fine if the Company can establish according to the County Ordinance that it is not required to pay these fees. He stated the Company was never asked to do that; and it was simply given a voucher of zero based on the Board's action that was done without the Town being given adequate notice to come and argue whether it was appropriate or not. Attorney Torpy stated the question is the County Commission did not obey or respect its Contract enough to give the Town of Malabar the proper notice, and, in his opinion, did not follow State law because an ordinance can only be amended by ordinance. He noted reasonable minds can differ on that point; if the Town of Malabar does not want to enforce one of its ordinances, the Counsel could say to the staff not to enforce it; but what it subjects itself to is what the County has subjected itself to, in lawsuit by someone who is affected and forcing it to enforce its Ordinance that was in place at the time.

Chairman Higgs inquired is this the only letter that was sent out; with Mr. Swanke responding no. Mr. Swanke advised there was an earlier letter that provided a copy of the proposed ordinance in November, 1994; after the ordinance was reviewed and considered by the Local Planning Agency (LPA), it requested staff add a definition of manufacturing and industrial; and staff prepared that and renotified.

Commissioner Cook noted this is renotification essentially; with Mr. Swanke responding it is renotification of the meeting. Chairman Higgs stated the question would then be was the notice that the Town of Malabar received notice of what the Board entertained; and inquired is that Attorney Torpy's point. Attorney Torpy stated the Town still is not aware of any notice that was sent; and there are two questions--was it sent and what was the notice that was sent. Commissioner Ellis stated the legal question then gets to be one of notification and is the Board strictly limited to what it put in the notice. Commissioner Cook noted the County is talking about using the impact fees on manufacturing; that is clear; and it goes back to the question at what point is that considered adequate.

Attorney Knox stated the purpose of today's meeting is to discuss a resolution of potential lawsuit; the Town of Malabar may be legitimately upset about the notice it did or did not receive; it can complain about that; the County has gone through the process and done the proper notification; it has changed the Ordinance; and it is a moot issue at this point. He noted if the Town wants to pursue a claim for damages, that is its prerogative; he does not believe it is going to receive that; but if it does, the County is going to request attorney's fees and costs for the Town pursuing something it should not. He stated the issue has basically been resolved; and that is the County's position.

Attorney Torpy inquired what is the effective date of the Ordinance adopted by the Board last night; with Attorney Knox responding he believes September 1, 1995. Attorney Torpy stated he does not follow the evaluation being given to the Board; when Data Management received its CO last month, the then current Impact Fee Ordinance was in place and was the law; and inquired how can a law that takes place three months from now negate a collection that should have occurred a month ago. Attorney Knox advised there is nothing to collect; with Attorney Torpy responding that is based on what County staff has said. Attorney Knox stated he requested staff go back and evaluate the application as though it was coming before it without regard to anything else that had gone on; Mr. Swanke did such evaluation; and his conclusion was there would be no impact fee. He noted regardless of whether or not the absolute impact fee that the applicant could have chosen was the flat impact fee of $60,000 or $83,000, he still had the option of re-evaluating it based on data, which is what they would have done; he has talked to Data Management at length; that is exactly what it would have done; it would have tried to lower the impact fee; and Mr. Swanke went through that analysis and came up with a $24,000 impact fee. Attorney Knox advised there was a credit due based upon the improvements that were made under the County's Ordinance; the County has done that in the past; what Mr. Swanke evaluated was consistent with the way the County interpreted the Ordinance in the past; the Town can pursue the claim if it desires, but the County's position is going to be that there would not have been any fees owing; and it is going to be able to prove it.

Attorney Torpy stated whether or not County staff's evaluation is accurate or not, he has no clue; the Town has not been privy to that evaluation or the information; what is improper and what the Board needs to know is that the law that existed when Data Management came in for its voucher was the law of Brevard County; County staff giving the Company a voucher for zero based on the Board's direction was simply illegal; it was an illegal act to ignore the County's Ordinance and the Interlocal Agreement with the Town of Malabar; and the Company was not required to come in and establish or justify a reduction as the Ordinance required. He noted the County simply said do not collect; therefore, the voucher was nothing; now after the fact when the Town sent its notice of intent to file suit as required by State law, County staff goes back and starts to all of a sudden accept anything handed to it to justify a zero calculation; and the distinction is very important for the Board to understand. Attorney Torpy stated the Board's action in January, 1995 to direct staff not to collect this impact fee resulted in it saying Data Management owes nothing, irrespective of the fact that it is industrial; and inquired had the Board not taken that action in January, 1995, when the Company came in March or April, 1995 for its CO, would staff have given said Company a voucher for nothing based on the information it had at the time. He noted he believes the answer is no because there was none of the supporting data to reduce the fee.

Commissioner Ellis stated staff would have had the data for paving the dirt road; with Attorney Torpy responding no, as Data Management had not provided it. Commissioner Ellis stated his point is that in March, 1995, the Company did not provide it as it was not asked to and thought there was a fee; and it goes back to staff working on processing a fee that it is not going to collect. Attorney Torpy inquired had Data Management showed up to say it does not have to pay $61,000 because of this information, would the Town of Malabar then have been contacted to ask it for its response to that information. Mr. Swanke responded generally the County staff reviews the information; it is then submitted to the Technical Advisory Committee that is called for in the Interlocal Agreement which includes a representative from the Town of Malabar; and it prepares a recommendation for approval or denial, or a substitute recommendation which is presented to the Board for approval of the credit. Attorney Torpy stated that happened and the Town went to that Committee; with Mr. Swanke responding no, it was an appeals board. Attorney Torpy noted then it did not happen and was never submitted to the Technical Advisory Board. Commissioner Ellis inquired why would the County spend a lot of time processing a fee it is not going to collect. Attorney Torpy stated staff is telling the Board the fee would be nothing; the Town of Malabar has never had an opportunity to be heard on that point; it does not know what data staff is relying on; it is coming to the Board in a meeting about the law and whether there is going to be a lawsuit; staff is giving information to say it does not matter, and it is a moot point because it would have been zero; and this did not go through the process as the Town has not been able to respond. Commissioner Ellis inquired is the Town requesting the information go through the process. Attorney Torpy stated it would be an interesting resolution; if the Town goes through the process under the County Ordinance where it is required to provide the proper information and it is presented to the advisory board, the Town has had its opportunity to be heard on that; and if the advisory board still says it does not owe anything, the Town Council may go along with that; but he would have to defer that to Mayor Durand. Attorney Torpy stated again, it is simply back to the notice issue; what staff has done has been totally contrary to the existing Ordinance; and staff is giving the Board information that is not based on the existing Ordinance.

Chairman Higgs inquired would Data Management have to agree to provide the technical information; and stated Mr. Swanke has said that is already available. Attorney Torpy stated Data Management is effectively out of the loop; this is the problem that the Town of Malabar has right now; Data Management walked in and said it wanted its voucher; and staff said here is your voucher for nothing. He advised the Company came to the Town with a voucher; under the Interlocal Agreement, when a company comes to Malabar with a voucher, the Town has to give it a CO, assuming everything else is correct in the building, which it was with Data Management; and the Town gave the Company the CO. Attorney Torpy stated Data Management has its CO without having to do anything under the Interlocal Agreement or Ordinance; he does not know how to correct that problem; inquired does the County revoke the Company's voucher with results of the Town revoking the CO and make the Company go through the process again; and stated he does not believe so.

Commissioner Ellis stated the Town may have a real problem if it tries to revoke the CO; with Attorney Torpy responding it has no intention of doing that. Attorney Torpy stated because of the action of staff simply giving Data Management the voucher without requiring information, the Town felt it had the legal obligation to give the Company the CO; and he does not see that the Town has any legal mechanism to go back and say such Company has to provide the data analysis that is required under the Ordinance. Chairman Higgs inquired if Mr. Swanke has that information.

Commissioner Cook stated it goes back to the notice; the latest one was on January 10, 1995; there was a previous notice; and even though it did not specifically say what the County was going to do, it clearly stated it was going to address the impact fees and reduce them. He noted even though the County Attorney says the notice is not the point, if the Town had a previous notice prior to the January 10, 1995 meeting, it would seem that was reasonable time for any concerns about lowering the impact fees; and the County would have received comment from the Town.

Chairman Higgs stated the record is pretty clear from the discussion at the meeting; such meeting on the issue was not anticipated in her mind or in the legal advertisement; and there was extended discussion about the issue being discussed today on whether or not that was within the scope of what the County could do. Commissioner Cook stated anytime the County advertises an ordinance, it always has the ability to amend it. Chairman Higgs stated the unique thing about this particular item is exactly why these gentlemen are present today; it is because the Board has an Interlocal Agreement with its partners in Malabar; and her concern about what the Board is doing is clear on the record of that meeting in January, 1995. Commissioner Cook noted then Chairman Higgs would assume that the Town had no objection to the impact fee reduction that was in the Ordinance; therefore, it would not be entitled to $61,000; and if the Town had an objection to what was in the Ordinance, it should have let the County know what that objection was. Chairman Higgs stated what the Town had was an opportunity; this was the first reading of an Ordinance to amend and develop a new category; and if she had read the notice and the proposed ordinance, it was not to discontinue any collection. Commissioner Cook noted it certainly was to address it; that would relate to if any damages exist; certainly no more damages could exist other than what was advertised in the ordinance; and you cannot say the full amount of the damages would exist because the Town did not show up at the meeting to object.

Attorney Torpy stated in the minutes of that meeting, that ordinance could not be discussed because of an advertisement problem; then the Board went on to discussion about impact fees; it was a well discussed and debated issue; what was advertised did not even get discussed because there was an advertising mistake; and the Board went off on impact fee related issues. He noted the County still cannot, even if it had discussed that Ordinance that night, make it effective that night; even if the County gave the Town of Malabar 75 days notice of its discussion, the Town showed up and argued vehemently against the Board, and the County Commission decided that every point Malabar made was wrong, it still could not as of January 12, 1995 legally suspend collection of the Ordinance; and it would have to pass a new Ordinance that changes the process, which was not done until last night. He noted an ordinance must be amended by an ordinance; and an ordinance cannot be amended by a unilateral act at one meeting of a county commission, no more than the Town Council of Malabar can do that. Attorney Torpy stated any way you slice it, the County Commission was wrong that night by immediately suspending the collection of impact fees for industrial sites.

Commissioner Cook stated he appreciates Attorney Torpy's comments; but if the Town had all this concern, why did it issue the CO and why did it not go back to the County and say it did not think this was done properly. Attorney Torpy responded then the Town would have exposed itself to a lawsuit from Data Management; the Company did everything it was required to do under the Ordinance; it came to the County and asked for its voucher; it obtained a voucher; such voucher said it owed nothing; the voucher was presented to the Town of Malabar; and the Company met all the legal requirements in the Town's Ordinance for obtaining a CO, including a voucher from the County. He advised the Town had no legal ability to deny the Company its building permit at that point; and had the Town denied Data Management, it would have been exposed to a lawsuit from the Company. Attorney Knox stated the County would have been responsible for indemnifying the Town of Malabar under its Agreement had it decided to pursue. Commissioner Cook noted it still would have been the County's responsibility at that point; and he does not understand why there was not some indication there was a problem. Attorney Torpy responded there was; the Town sat in a meeting with the County's Technical Advisory Board two weeks before that and expressed concern; Assistant County Attorney Lisa Troner was present; and he directly expressed to her the Town's concern that it was not an issue over whether it was a $61,000 or $83,000 impact fee, but a concern that the County Commission said ignore this Ordinance. Attorney Torpy stated at that meeting, he asked Attorney Troner what law the Board acted under; and she said she would not comment on that at that time. He noted the Town was very clear of its concern prior to that happening; Attorney Knox was aware of it; he believes the Board was also aware of it; and this is nothing that has been a surprise to anyone prior to the voucher being issued.

Mayor Jerry Durand stated the Town felt like Data Management, when it brought its site plan in, went in with the understanding that it had an impact fee to pay; Data Management would have come in for its CO with a voucher which would have been assessed at $61,000 or whatever; it would have paid the impact fee; and this would never have come up if the County would have made a public notice that it would not instruct staff to collect this fee anymore.

Attorney Knox stated that is not the story he is going to get from Data Management; and it is going to say it would have done the evaluation, come up with a smaller impact fee, and it would also apply for the credit; that was also in its record before any of this ever happened; there was a meeting held for which he still has not received the minutes; but he understands this was all brought up at that meeting.

Chairman Higgs inquired if the County were to come to the end of this meeting with some kind of conclusion to move forward, what would the Town of Malabar want the Board to do. Attorney Torpy responded there are two issues that need to be addressed; one is the form that was used by the Board; his Council has unanimously expressed great distress that the County Commission ignored it; and that has also been expressed by other municipalities. He noted first it would need to start with a recognition of the fact that this was done improperly, and secondly, that this impact fee was planned for use on a particular road in the Town of Malabar. He stated somehow there needs to be some compensation to the Town, and not necessarily $61,000. He stated there needs to be some compensation for what this cost Malabar and the affect on the particular road that was going to be paved for that.

Commissioner Ellis inquired was the road that was going to be paved impacted by this plant; with Attorney Torpy responding no. Chairman Higgs stated it is in the impact fee district and qualifies for that. Attorney Torpy stated those are the two things the Council would want--some compensation toward completion of this project which was budgeted based on this impact fee and some form of recognition by the Board that it has to respect its contracts with its local municipalities.

Commissioner Cook stated he can assure Attorney Torpy the County does that. Chairman Higgs stated Attorney Torpy is correct that the County did not follow its Agreement with the Town of Malabar; the Board could change the Ordinance if it desires to do so if properly noticed and working in partnership with the Town; but the County did not do that. She inquired how should the Board proceed to deal with the two issues that the Town is bringing forth. Attorney Knox responded it is entirely up to the Board how it wants to deal with that; he basically has made the County's legal position known; whether or not the Town has an argument on the procedural issue is, in his opinion, a moot issue; his advice to the Board on that day was clear; and whether it chooses to go with his advice or not on a particular day depends on what it wants to do. He stated what the Town is requesting in terms of notice and all of that may have been something the County might have done differently; but whether that is grounds for a lawsuit is a different question entirely. Chairman Higgs inquired if the Board were to direct staff to do that investigation about the compensation as its first step in trying to resolve this outside of court, would that be useful to the Town; with Attorney Torpy responding yes.

Mayor Durand stated the Town did not come here with the idea of little Malabar against Brevard County; it has enjoyed an excellent rapport, especially with County staff and the Commissioners; it is more of a problem of the Town having an Agreement; and its budget is very small. He noted when it projects its income, it is on a very small budget; it has a lot of roads that need to be repaired; the Town was counting on these impact fee funds; it had budgeted such funds; and at most, it is going to be able to do one-half mile or one mile a year. He stated when this was dropped in the Town's lap, it threw its whole budget into a tailspin as far as its capital improvements; when the Interlocal Agreement came up, the Town believed it was a great thing; and then the impact fees were not collected. Mayor Durand stated it is not a matter of money so much as it is a fact of the Town has to live up to its agreements; it felt it was slighted the way the Board did this; the Town is not looking for a fight; and it would like to resolve this.

Chairman Higgs stated perhaps two things can be done; the Board can request staff to provide documentation of what notice was given and also provide the analysis and process the County should go through in terms of the impact fee; and those issues can be brought to the Board so it has full information in looking at any decision it might make. She noted the two issues are the notice and compensation.

Commissioner Ellis stated the trip generation at this point is very simple by going down there and running a car counter. Chairman Higgs stated she does not know what process and what documentation is required for the impact fee credit. Mr. Swanke advised with the facility in operation, staff can measure the actual trip generation over a reasonable period of time; and based on the size of the facility and procedures, it can calculate what the acceptable impact fee rate would be. Commissioner Ellis noted he cannot see the point of doing a study when the facility is running. Chairman Higgs stated she does not know what is necessary to meet the form and the law, but that would be what the County may need to do.

Attorney Torpy stated he would like to see the required information provided so that a proper evalution can be made, with Malabar having the opportunity to comment on it; that is the key; and what he means by the required information is what was under the Ordinance that existed at the time. He noted if it comes out at the end with zero, he will report that to Council; then it will be simply the issue of the no notice; and he has a feeling it is not going to be as big a problem. Attorney Torpy advised the County is going to be paying for the study that the applicant would have paid for prior to this happening; and the requirement of the Ordinance is that the applicant do the trip generation counts and provide it to the County so it can make its evaluation. Chairman Higgs stated the County will let them comply with the law and the Ordinance as it existed; and the Board will get that information. Commissioner Cook stated he wants to preserve the County's rights; this is not an admission the County did not comply with the law if it goes through this process; that has to be clear; there is no intent to slight Malabar; he has always had a good relationship with the Town; and that was not the intent of the Board's action that night. Commissioner O'Brien stated the Board wants to cooperate with the Town; and this is an effort to satisfy all the parties involved. He suggested staff compile the information; the Attorneys Knox and Torpy can discuss the issues involved and perhaps find a resolution; and the item can be scheduled for the second meeting in July, 1995 at a time certain.

Commissioner Cook inquired will this create any additional exposure on the part of the County if it tries to work with the Town on this. Attorney Knox responded technically this is a settlement conference today, so what is said here is not going to be admissible in any kind of proceeding. Attorney Torpy reiterated today is just a settlement conference. Chairman Higgs stated the desire of the Board is to do what is best for the County; it wants to work with all the cities and Town of Malabar; she has had a great relationship with the Town; as the Commissioner who represents Malabar, she will continue to do that; she personally is sorry that the County and Town are at a point that causes them to not work together positively; and she hopes they can get that back on track in a positive way as it is certainly in the Commission's interest.

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to continue the meeting with Town of Malabar to July 18, 1995 in the evening; and direct staff to schedule it for a time certain, and provide information on the impact fee notice and compensation issues regarding the Town of Malabar. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 12:05 p.m.

NANCY N. HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)