MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

December 02, 2008

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 02, 2008 at 9:03 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, County Manager Peggy Busacca, and County Attorney Scott Knox.  

 

 

The Invocation was given by Reverend Patrice Spencer, First United Methodist Church, Cocoa Beach.

 

Commissioner Andy Anderson led the assembly in the Pledge of Allegiance. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the August 28, 2008 Special Minutes.  Motion carried and ordered unanimously.

 

 

 

Commissioner Fisher stated at the last meeting, the Board discussed the possibility of a Chief Financial Officer; and it is something he would like to explore.  He noted he has already talked to staff and some community leaders about what a CFO would look like; and he would like Board direction to allow him to continue to explore the possibility of a Chief Financial Officer and come back to the Board with a recommendation.

 

Commissioner Bolin stated she would like Commissioner Fisher to speak to County Attorney Scott Knox because he has explained that the Board would be looking at a Charter Amendment for a CFO; and the Board will be looking at the Charter next year.  Commissioner Fisher stated it would require a special election; but he would like to come back to the Board with some recommendations; and he thinks the Board can get to where it wants to be without a special election.

 

Commissioner Nelson stated the Board does not need a motion; if there is no objection to having Commissioner Fisher discuss the concept of a CFO with the County Attorney and come back to the Board with a report, it would be acceptable. 

 

  

 

Commissioner Infantini stated she would like to introduce her staff, Lori Helton and Linda Minnear. 

 

 

 

Commissioner Bolin stated for those new to watching the Commission meetings, she would like to explain that each Commissioner has a monitor in front of them; and they do not always look at one another when speaking, but they can view everything on the monitor. 

 

 

 

Commissioner Nelson stated he appeared before the Legislative Delegation yesterday to present the Board’s package; stated the Speaker of the House has indicated he does not want to see any CIBRS, which is a funding request in the Board’s package; but there is one that is only a CIBR because it was a mechanism to get the dollars from the State.  He stated the County is requesting a generator that has actually been purchased by the State; the State was going to do the installation; and then the money was not available; and the only way to get it installed was through a CIBR; but Chairman Poppel indicated there may be other ways to do that.  He stated he would like to change the item from a CIBR to more of a request that the State fund the installation of the generation, which is located at Sunrise Elementary School in the Palm Bay area; stated it does not make sense to have a huge generator and not be able to have it installed.  He noted the Legislature worked with the Board last year, and he thinks it will work with the Board again this year. 

 

Commissioner Bolin stated she would like Chairman Nelson to do what needs to be done in order for the generator to be installed. 

 

 

 

Commissioner Anderson stated he would like to pull Item III.B.1., FY 2008-2009 Agreement with Crosswinds Youth Services, Inc., Re:  Juvenile Assessment Center (JAC), for discussion.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to execute Change Order No. 3 with Masci Corporation, Inc. to add construction of the L-2 Stabilization Project.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to execute Change Order No. 4 with Masci Corporation, Inc., not to exceed $146,000 under Bid 3-08-49 (Purchase Order 4500056070 for Upper Eau Gallie Basin Stormwater Improvements) for installation of box culvert crossing on Clydesdale Boulevard at the intersection of Lake Washington Road.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to adopt Qualified Targeted Industry Resolution benefiting GENO, LLC.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to adopt Economic Development Tax Abatement Resolution qualifying GENO, LLC as an eligible business under the County’s Tax Abatement Program and authorize a public hearing to consider adopting an exemption ordinance.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to accept the TEFRA Public Hearing comments; adopt Resolution for Goodwill Industries of Central Florida, Inc.’s Tax Exempt Financing Project; and authorize the Chairman, Clerk and County Attorney to execute bond resolution(s) and related documents.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to approve the Bills and Budget Changes.  Motion carried and ordered unanimously.

 

 

 

Commissioner Anderson stated he has a couple of concerns about the request by Crosswinds Youth Services for a Juvenile Assessment Center; the Board has to determine what it wants in the County and what it needs; the Board will be facing severe financial implications in the coming  years;  and  Crosswinds  Youth  Services  is  asking  for  $261,000,  which  could  be  a recurring expense according to the information provided in the Agenda package.  He stated while it is a noble idea, the assessment center is only for those juveniles that would not normally be incarcerated anyway; philosophically, he has always felt the government is relied on for too many things; the assessment center assesses mental health needs of juvenile offenders; and in his mind, that is a parental issue in which a lot of non-profit organizations deal with.  He stated he does not feel it is wise to start spending money the Board may not have next year; stated for the next four years he is not going to support something that is a nice desire to have, but really is not something that is needed immediately in Brevard County; and the Board needs to get back to the basics such as roads, police and fire. 

 

Commissioner Fisher inquired if the request is a budget item for this year, and is the Board committing for budgeting in 2009-2010, or is going to come back up in the budget cycle.  County Manager Peggy Busacca advised it is a budgeted item for this year; if the Board approves it in the budget, it will be considered in 09/10.  Commissioner Fisher stated the fiscal impact on the Agenda Report is confusing because it looks as though the Board is making the decision now for 09/10; and that is not correct.  Ms. Busacca stated the previous Board asked staff to do that so it would understand if it was ongoing impacts of a decision that was made this year, such as a maintenance impact; but this would be a separate budget item and the Board could choose, as a part of the budget development, whether or not to approve the item.  Commissioner Fisher stated that may clear up some things for Commissioner Anderson.  Commissioner Anderson noted that was one of his concerns, but it goes back to wants and needs; and he feels the Board should be putting away every penny it can right now.  He stated it was announced yesterday that the country is officially in a recession; it is a noble good thing and it would have been great if it were four years ago. 

 

Chairman Nelson requested staff explain the request. 

 

Ian Golden, Housing and Human Services, stated the Juvenile Assessment Center started in the late 1990’s or early 2000’s as an effort to combat juvenile crime in Brevard County; it is an option for youth to have an intervention prior to getting into the juvenile justice system; and Brevard County has been putting in dollars to fund the program since that time.  He noted at one point, dollars were coming in not only from Brevard County, but also from the Department of Juvenile Justice; right now the Department of Juvenile Justice does not put dollars into it, but there are court fees that go into support of the Juvenile Assessment Center; and the $261,000 fiscal impact is the combination of both the court fees and the general revenue dollars that go into the program.  He noted there is approximately $130,000 from court fees, and approximately $127,000 from the General Fund.  Chairman Nelson stated the reason the Board funds it is because it keeps kids out of the juvenile justice system because it is more expensive once they are in the system, which the County then pays for; and to him, that is the benefit.  He stated it is a cost saving initiative because incarceration is much more expensive than to intercept the kids and get them treatment; and the County gets State dollars to offset the Juvenile Assessment Center.  Ms. Busacca advised the County pays for the pre-detention of juveniles when they are in the system and before the State takes them; and so the County either pays now or pays later. 

 

Commissioner Bolin asked staff to explain how the County interacts with the Sheriff’s Department  and  local  law  enforcement.   Mr. Golden  stated  the Juvenile Assessment Center has a Juvenile Advisory Board; the Board is made up of members of law enforcement throughout the County, including the Sheriff and municipalities; additionally, the law enforcement agencies are the one’s who are bringing the kids to the Juvenile Assessment Center; and the JAC gives law enforcement the ability to release the kids into secured care.  He stated what used to take law enforcement hours of holding a child either at a precinct or in their car while the parents are notified, now takes approximately 14 to 18 minutes; and the law enforcement officer is able to get back on the street protecting citizens.  Commissioner Bolin stated $133,000 is coming from court fees, which will always be coming to the County; $127,000 is the General Fund dollars; and for FY 09/10, the Board is really looking at the $127,000.  Mr. Golden stated the $133,000 is also contingent upon the fees and the revenue that is generated, such as from traffic fines; and is also contingent upon how many fines there are in a year.  Commissioner Bolin stated when the Board looks at budget cuts in the future, the $127,000 is going to be looked at very closely.  She inquired how much service the $133,000 will provide; with Mr. Golden responding he would have to get in contact with Crosswinds Youth Services to determine that and provide a report back to the Board.  Commissioner Bolin stated the program will never totally be cut out because the money is coming in, but it is the County’s portion that is in question.  Mr. Golden stated there comes a point for an agency such as Crosswinds where it does not become fiscally feasible for it to run the program; if it were to continue with just court fees, he does not know what it would look like. 

 

Commissioner Anderson stated he is clear on the $127,000, but he is still going to vote against the request because there are many non-profit organizations in Brevard County that perform some of the duties without the use of taxpayer money; and that is a position he is going to take on a lot of issues.

 

Commissioner Infantini stated she would like to know if there is a report on how many people the Juvenile Assessment Center cared for last year, and how many actually avoided incarceration compared to how many ultimately went in a different direction.  Mr. Golden stated he does not have that information in front of him, but he will get it from Crosswinds and provide it in the report that will be brought back to the Board. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to table Item III.B.1., FY 2008-2009 Agreement with Crosswinds Youth Services, Inc., for Juvenile Assessment Center (JAC) to a future Board of County Commissioners meeting.  Motion carried and ordered; Chairman Nelson and Commissioner Fisher voted nay.

 

 

Chairman Nelson noted the contract began in the beginning of October, so the service has been provided since then.  He stated he believes it is a service the Board has committed to for at least this year; he respects Commissioner Anderson’s position; and it will be something that is discussed in the budget.

 

 

 

Joan Wheeler stated a few years ago the Board was elected by the entire County; then it was changed to where only voters in a particular district could vote for the candidate for that district; and she understands Ms. Busacca gets her direction from the Board, but not each Commissioner separately.  She stated sometimes Ms. Busacca is pushed too far because the Board should not be approving hiring somebody for a project that was not approved by the Board.  She stated she would like the Commissioners to continue to work as a Board and not separately with the County Manager; she stated the Board cannot decide to hire a new County Manager unless it already has someone in mind for the position; and she would appreciate it if the Board worked together and not separately. 

 

Chairman Nelson stated he feels the Commissioners will not have a problem with issues in each of the districts. 

 

 

 

Chairman Nelson called for the public hearing to consider a resolution approving inventory list of County owned property available for use as affordable housing.

 

Ms. Busacca advised there is a map on the second page of the general areas where the properties exist; and on the first page is some information about the minimum house size that is currently shown in the zoning.  Chairman Nelson stated he had the opportunity to discuss with the County Manager and staff some questions because while everyone understands the need for affordable housing, the impacts are critical; and he had requested additional information on location and how it all fits, zoning wise.

 

Chenita Joiner, Housing and Human Services, stated the item is being presented in accordance with what the legislation adopted in 2007 that directs counties to adopt a resolution that identifies County owned land that is suitable for development of affordable housing; it also directs the counties to hold a public hearing to adopt a resolution to accept the properties; and additionally, permission is being requested to transfer the properties that are identified as part of the process.  She advised the affordable housing trust fund was approved under County Ordinance 07-18, which adopted the affordable/workforce housing Ordinance.  She stated the request is also in line with the legislation asking permission to use the lands to build affordable housing in addition to, if it is determined to be appropriate, to sell some of the properties to produce funds for the Affordable Housing Trust Fund; staff works with the Asset Management Department and other County departments to ensure the properties are suitable for use of building affordable housing or to use them to raise funds to produce affordable housing; and this inventory list and resolution is being presented to the Board for review and approval.

 

Commissioner Anderson stated after reviewing Florida Statute 125.379, it is not a mandatory process; the Statute only requires that the Board may compile a list, but there is no requirement to transfer the properties.  He stated he has concerns that affordable housing was a major discussion a few years ago when he was on the City Council; there was a problem with the workforce  finding  housing;  but  right  now,  he  does  not  think  affordable  housing  is a crisis. 

He stated there are 2,000 square foot houses for rent in some areas of the County for under $1,000; stated he does not know if it is prudent right now to start transferring the properties under the HHDS purview; and it would be more prudent to just hold the properties and compile the lists as required by the State, and then there are assets in the bank if needed at a later time.

 

Commissioner Infantini stated she agrees with Commissioner Anderson; she has some concerns because there have been a lot of projects brought before the Board; this is the third project in one week; and she would like to see the strategic plan to organize for affordable housing as to what is available in the marketplace.  She stated as Commissioner Anderson alluded to, there are is lot of affordable housing at this point; most of the housing is located in Port St. John or off of Lipscomb; and she would like to know what inventory is already available and what need there is.

 

Commissioner Fisher stated the Board might be misunderstanding the definition of affordable housing; $1,000 to some people is not affordable; and his definition of affordable housing is in the range of $300.00 and $400.00 per month.  He stated as the economy tightens there is a part of the community the Board needs to be very mindful of, and a 2,000 square foot house for $1,000 per month is not affordable to a lot of people.

 

Chairman Nelson stated this is a case where putting property back on the tax roll may be a good thing; and in terms of money that would be generated, it would go into the Affordable Housing Trust Fund, which is then used to help first-time homebuyer programs.  Ms. Joiner state that is correct; it can assist first-time homebuyers and also to construct additional affordable housing for rental purposes.  Chairman Nelson stated to some extent, the County has some liability with affordable housing and maintenance; and he does not have a problem with it, as it does a lot of the right things the Board is going to need to do.  He stated he would support the resolution.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to review prepared inventory list of all real property within its jurisdiction to which the County holds fee simple title that is appropriate for use as affordable housing; and adopted Resolution transferring inventory list to the Housing and Human Services Department to be used for affordable housing consistent with F.S. 125.379.  Motion carried and ordered; Commissioner Anderson and Infantini voted nay.   

 

 

 

Chairman Nelson called for the public hearing to consider resolution vacating right-of-way on Skylark Boulevard in Waterway Estates, Third Addition, as petitioned by William and Joann Davis.

 

John Denninghoff, Public Works Director, stated the petitioners have requested a vacating of a public road right-of-way in Waterway Estates; there has been some discussion about continuing the petition to the February 17, 2009 Board meeting to allow the homeowners groups involved to meet; and the petitioners have agreed to continuing their petition.

 

Bill Davis, applicant, stated he agrees with continuing his vacating petition; and expressed appreciation to the Commissioners and County staff for discussing his options with him as far as what he can do with the property.  He stated postponing his petition to a future date will solve a lot of problems.  

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to continue the public hearing to consider a resolution vacating a portion of Skylark Boulevard in Waterway Estates, Third Addition, as petitioned by William and Joann Davis, to the February 17, 2009 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated with these kind of requests for access there is an impact to the community for use; it is great to have public access to the Lagoon, but when it creates an impact that is detrimental to the neighborhood because maintenance is not managed, the Board needs to address that as part of the discussion as well.  He commented on a similar request on Merritt Island several years ago.  Mr. Denninghoff advised staff will have maintenance records available on February 17, 2009. 

 

 

 

Assistant County Manager Mel Scott stated staff is requesting the Board hear Item VII.B. before Items VII.C. and VII.D. 

 

Natural Resources Management Director Ernie Brown stated before the Board is an issue that has come up several times over the last few years; it relates to part of the Comprehensive Plan that says the lots that were legally established prior to 1988 are grandfathered for wetland impacts for the primary house, ingress egress to that lot, and the septic system.  He stated the key is the 1988 provision of the Comp Plan requires a one unit to five acre ratio in order to impact for those purposes as it relates to residential; and if it was created prior to 1988 and smaller than five acres they still retain those rights as a non-conforming lot of record.  He stated the question before the Board is the intent of the Comp Plan language; any legal change after 1988 of that lot nullifies that grandfather provision; and the question is on two specific changes that are actions by the County, one of which is a required right-of-way dedication, or an improved right-of-way vacation; and inquired if it was the intent of the Board to have those two actions specifically cause the loss of those grandfather rights as it relates to impacting wetlands of lots that were less than  five acres.   He stated the Board received an email  from Mary Sphar who was an intervener in the stipulated settlement agreement for that Comprehensive Plan Policy; stated Ms. Sphar was one of many interveners as it relates to that; and she did not believe it was the intent of the Board to have the property owners lose that grandfathering privilege as it related to those specific actions.  He stated Ms. Sphar also stated if that is the action of the Board to make that clarification, that it be done in Policy in lieu of changing the actual ordinance. 

 

Chairman Nelson stated for him it comes down to an action of this government back in the 1980’s created this non-conforming lot circumstance; but another action by government could actually take it away; and he does not think that was ever the intent because why would it have not been done in the 1980’s.  He stated it is clear to him that what was intended was that if the Board creates that cause, an owner should not lose his or her right; and he would support a Policy that clarifies that so that an action by this government would not take away a right to use one’s property under those same circumstances granted in the 80’s. 

 

Mr. Brown stated before the Board votes, he would like to read the Policy language to the Board to make sure it is very clear in the Clerk’s response exactly what the intent of the Board was so there is no confusion in the future when the Policy statement is developed; and he would like to read it as a matter of concurrence.  He read, “Direct staff to implement a Policy that a lot created prior to September 9, 1988, shall retain its ability to impact wetlands to achieve a buildable area if the lot is reconfigured as a result of a County required right-of-way dedication, or an approved right-of-way vacation.”

 

Commissioner Anderson stated the language says “required County”, and inquired if there are any other requirements that are dictated by any other government agency.  Mr. Brown replied there are other provisions in the Comp Plan that allow certain flexibility if an agency such as the SJRWMD or DEP comes in and requires something; this is a very unique County action phenomena.  County Manager Peggy Busacca stated the question is what happens if there is a State or City road that would somehow impact that.  Mr. Brown stated that has not yet been a problem of State right-of-ways, but the policy could read, “government right-of-way”, if it would suit the Board.  Commissioner Anderson stated he would feel better with that language change to “government.”

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to direct staff to implement a policy that a lot created prior to September 9, 1988 should retain its ability to impact wetlands to achieve a buildable area if the lot is reconfigured as a result of the government required right-of-way dedication, or an approved right-of-way vacation.  Motion carried and ordered unanimously.

 

 

 

Ed Lyon, Permitting and Enforcement Director, stated both Agenda Items pertain to the same group of parcels; the first one is a request to cross a County right-of-way with an easement; the Code does not allow easement access to cross County right-of-ways; and the second waiver is to allow two lots to have access by easement where the sum acreage of the two lots is less than five acres.  He noted currently, if there are going to be two lots accessed by the same easement, the total acreage has to be five acres or more.

 

Clayton Bennett inquired if the amended Policy 5.2.E.1., in Item VII.E. is effective immediately; with Chairman Nelson responding affirmatively.  Mr. Bennett stated at this time, his client would like to withdraw the waivers and come back to the Board with a vacation request to vacate the right-of-way between Lot 1, Block E, and Lot 2, Block C; and that will avoid the waiver request to cross the right-of-way.

 

Chairman Nelson advised Items VII.C. and VII.D. are withdrawn.

 

 

 

Cheryl Lawson Young stated she represents Housing Enhancement for Lower-income People, Inc. (HELP); she is the Executive Director of the organization, which is located in Mims; and she invites the Board to visit the organization.  She stated HELP is requesting a zoning fee waiver on five properties they have acquired through the donation of purchase agreement; all five properties are located in the East Mims Community; and the goal is to receive the appropriate zoning to create a much needed affordable housing development in the near future.  She stated this type of project has been supported by the Mims Small Area Plan, the County’s Consolidated Plan, and the East Mims Neighborhood Five-Year Action Plan, which sunsets in 2009; even with all the plans and studies, HELP thought it necessary to go a step further; and HELP put together a community outreach survey and surveyed 100 homes.  She noted the 100 homes surveyed reflects more than 10 percent of the adult population in the East Mims Community; 76 of those persons indicated that affordable housing, of rental or home ownership, was most important to their quality of life; and HELP is requesting the Board grant a zoning fee waiver so that they can move forward to enhance the quality of life, while helping to prevent the spread of the epidemic called homelessness.  She stated the zoning change HELP is requesting will be in alignment with the zoning changes that are currently taking place and being reviewed by the County.  She advised HELP’s budget is much below the $75,000 that Board Policy BCC-50 requires for non-profits in order to be eligible for this waiver; stated HELP’s budget over the last year has been under $31,000; and so HELP definitely fits the criteria.  She noted currently HELP is not receiving grants or public funding; HELP is planning to seek that funding, but the goal was to become foundationally strong and capacity-ready before seeking funding; and as the Board can see, HELP’s funding comes from private donations, rentals, and fundraisers.  She stated if waiver is not granted HELP will be forced to delay the process that will impede the development of the true community needs; HELP has been working with staff for almost a year in looking at what the needs are; and she would like to commend the Housing and Human Services staff, and Cindy Fox in Planning and Zoning.  She stated right now there is a waiting  list  of  five  single  men that are in need of affordable rental housing; two of the men are sleeping in their vans; there is a single female with five children; and a family of six that also need a home; and she asks the Board to please grant the waiver to enable HELP to move forward in making this become a reality and also to help with the impact that homelessness and the economy is having on the community.

 

Commissioner Bolin stated the budget Ms. Lawson Young submitted was on HELP’s letterhead; and inquired if that budget will stay the same.  Ms. Lawson Young replied yes, the budget will stay the same; she also has a summary for the Board explaining what HELP is all about; and the Commissioners can call her any time with questions. 

 

Commissioner Anderson stated he supports what Ms. Lawson Young is doing, and HELP is a worthy and noble cause.  He stated he knows HELP is well under the $75,000 threshold; and inquired if Ms. Lawson Young can submit HELP’s tax returns and Form 990 to the Board; with Ms. Lawson Young responding affirmatively.  Commissioner Anderson stated in the future he would like to make it a requirement for organizations to submit their tax returns.  Chairman Nelson stated the Board can take the two issues separately, but he thinks that is an appropriate comment. 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the Zoning Fee Waiver for Housing Enhancement for Lower-Income People, Inc., as requested by Cheryl Lawson Young. 

 

 

Commissioner Infantini stated she commends the work HELP does; but this is the fourth project that has been brought before the Board since she has been on the Board in her first week; and she would like to see a strategic plan to see what the overall County objective is, as in who it is serving and who still needs to be served because the Board continually invests dollars, but she does not see the overall plan.  Ms. Lawson Young advised the Mims Study explained the strategic plan and the needs of the community; and the Comp Plan talks specifically about the East Mims community. 

 

Chairman Nelson stated there is a motion and a second; and inquired if the request is consistent with Board Policy BCC-50.  Planning and Zoning Director Robin Sobrino replied yes, it is consistent with Board Policy BCC-50.  Chairman Nelson stated granting the waiver does not assure the zoning being requested; and it is just a waiver of the process.  Ms. Sobrino responded that is correct.

 

Chairman Nelson called for a vote on the motion.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Chairman Nelson stated the Board needs to see if it can come up with a better mechanism for evaluating these requests; and particularly when there is one available that is in a public form.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to direct staff to ensure that non-profit 501(c)(3) organizations submit the previous year’s tax return to prove they have not generated over the $75,000 threshold. 

 

 

Commissioner Fisher inquired if an organization has to be a 501(c)(3) to qualify for the waiver; with County Manager Peggy Busacca responding not currently.  Commissioner Anderson stated his goal is to ensure there is no avenue for fraud, and just to have documentation.  Commissioner Fisher stated he is not sure an organization has to do a Form 990 if it is a 501(c)(3); and maybe ‘tax return’ would be the proper term.  Chairman Nelson stated staff can look at the policy to ensure that whatever the appropriate tax return would be appropriate.

 

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

 

 

Planning and Zoning Director Robin Sobrino stated the City of Melbourne presented an initiating resolution inviting Brevard County to participate in an Interlocal Agreement; under State Statute, Chapter 171, Part II, the County has 60 days to respond to the initiating resolution with a responding resolution; and staff is presenting to the Board today a draft responding resolution for its review and action.  She noted staff has also received expressions of interest from the City of West Melbourne and the City of Palm Bay to be invited to the table to participate in the Interlocal Agreement discussions. 

 

Chairman Nelson stated the Board needs to have a discussion on the terms ‘participate’ and ‘invite’ because it is going to be heard repeatedly throughout the process.  Ms. Sobrino advised the Statute provides for two types of participation, one of which is being an invited local government, and that would be in the case that the County, as responding to the City’s invitation to participate, that the County may invite interested local governments to sit at the table to negotiate the discussions; and alternatively, if there are no invited local governments, the expressions of interest by other cities may be viewed as a request to participate and in that case, both the County and the City of Melbourne would need to agree to those municipalities as being participants in the discussion. 

 

County Attorney Scott Knox stated for example, if the County invites West Melbourne or Palm Bay, they become a party to the negotiation, as opposed to a participate in which someone is asked to come to the table and the two initial invitees would then make a decision as to whether that participant would be allowed to participate.

 

Jack Schluckebier, stated three years ago the annexation law in Florida was changed; that change came as a result of years of negotiations between cities and counties that previously had taken disputes over annexation to Tallahassee to get resolved and through the court system  to  get resolved  because there are  very few  annexation  options  available;  and  three years ago that change allowed cities in the County, or the County, a process for a negotiated boundary change.  He stated the City of Melbourne feels the County’s authorization to negotiate on behalf of the County with Melbourne about the property for which the City presented requests for services represents value added to the County in three important ways.  He stated first, it represents an opportunity for the County to negotiate an annexation; previously, under the current law there is not that opportunity; annexations happen, and the County deals with the aftermath; and he thinks that is an essentially important element for the County and a whole new tool for the County that it does not have right now; and second, this method allows an extremely large improvement in the County’s planning opportunities over land areas such as the one under consideration.  He stated the County’s Planning Department has minimal input in annexations under referendum or volunteer annexation; right now, the County has agreements with Rockledge, Titusville, Palm Bay, Melbourne, and Palm Shores; the City of Melbourne has provided additional planning over the last 10 or 15 years; and hopefully, this will be a continuation of that.  He stated third value that would be added to the County is partnership; the reason for being here today is because of a request by a large property owner, which is the Platt Family’s agricultural holdings, and is approximately 4,000 acres; but for the City of Melbourne having jurisdiction west of I-95, which it does not currently have, but for that, which he hopes to obtain through this negotiated process, the City would have no reason to use city resources, particularly for the Parkway; and he believes the City can enter effective conversation with the County and the property owner and help make it a reality.  He stated the final Agreement will be left to the County and the City; the process is just looking for authorization to negotiate with the area; and it may be determined that it is in everyone’s best interest to limit that area further to the Platt holdings.

 

Paul Gougelman, City Attorney, City of Melbourne, stated an interesting sidebar to the discussion is that the process that allows the County to negotiate an annexation with a municipality happens to be the product of a State law that was developed by a group of city and county managers working in tandem to try to put this together; and when the legislation was sponsored in Tallahassee it was Senator Thad Altman that was the sponsor of that law, and a former Brevard County Commissioner.  He advised since the time that the City of Melbourne passed the resolution it has been discovered there may possibly be some pre-annexation agreements that have already been signed between West Melbourne and Melbourne in the northeastern part of the subject area; and the City of Melbourne has asked the City of West Melbourne to supply those Agreements, and if there are agreements, the City of Melbourne would have no intention of seeking to annex those areas, as that would be an independent agreement between the property owner and the City of West Melbourne. 

 

Mark Vorce stated he has lived in West Melbourne for 28 years and has watched it grow; what he has seen happen is an opportunity for a city of hop over the top of another city in order to annex a property; and he spoke to the Legislative Committee yesterday about the subject; and he does not feel the annexation is the correct thing to do in any city.  He stated if this is allowed, in the next 20 to 30 years there will be a lot of little cities hopping over cities to annex property; inquired what is to prevent Orlando from hopping 20 miles to annex in Brevard County; stated he does not feel it is a correct way to think; and he would like to ask that the jumping over not be allowed.

 

Harry Stapor stated he obtained a copy of State Statute 171, Parts I and II; stated Part II contains a detailed procedure to finding how to implement this alternate annexation technique coupled with an incomplete definition with the fundamental requirement characteristics for the property to be annexed; and it is a very detailed process of how to do something, but it is an incomplete definition of what it is that the County can do it with.  He stated for example, Section 171.204 specifically identifies that the restrictions in Part I are not requirements of Part II unless they are specifically included; Part I states property to be annexed has to be contiguous to the municipality trying to annex it; but that is not a part of Part II.  He noted in Part l both the property to be annexed and the municipality trying to annex it must be located in the same county; that language is missing in Part II; and it is that language that is going to enable leap-frogging.  He stated there is no requirement in Part II for the intervening land between the property being annexed and the municipality trying to annex it, that it cannot be a part of an incorporated municipality; and that allows leap-frogging.  He stated as County officials, the Board is sworn to uphold the laws of the State of Florida; Chapter 171, Part II is one of those laws; but the Board does not have to remain mute on Chapter 171, Part II.  He stated he would like to encourage the Board to petition the State Legislatures to revisit Chapter 171, Part II with the purpose of either repealing it entirely, or at least modifying the language so that requirement omissions can be logically identified and corrected. 

 

Gary Frese stated he represents the Platt Family and his client is going to address the Board; and he will yield his comments for any questions the Board may have for Mr. Platt.

 

Mike Hazlett, City of West Melbourne Councilman, stated he is opposed to the City of Melbourne’s annexation request for approximately 4,000 acres of land west of the City of West Melbourne, known as the Platt Ranch; the subject property is not contiguous at all to the City of Melbourne’s legal boundaries, but rather borders the growing City of West Melbourne; and the unprecedented request by Melbourne must be denied for a variety of planning and legal reasons beginning with pure fairness.  He advised the City of Melbourne is landlocked on all four sides and has nowhere to grow to increase future tax revenue; and the City of West Melbourne has 11 miles of dirt and potential annexation opportunities west of West Melbourne to the Osceola County line.  He stated West Melbourne plans to expand west; that presents a huge problem to the City of Melbourne; and now the City of Melbourne wants to leap-frog the City of West Melbourne into the west encompassing West Melbourne on three sides, with Palm Bay to the south; and the area Melbourne wants to include in its City, is an area west of West Melbourne.  He inquired how government services will be provided to a 4,000-acre island completely removed from the City; the grand prize would be to eventually take over the 50-year old City of West Melbourne and become the largest in the County; nowhere in Florida does this kind of disconnected city boundary situation exist; and he does not think anyone can find a similar successful situation anywhere in the United States.  He stated Chapter 171, Part II, of the Florida Statutes was never written for this specific purpose; but instead, for unique annexation issues like the Cities of Sarasota, Venice, and North Port, who are completely contiguous with each other and saw the need for uniform government services instead of the costly overlapping in this slowing economy.  He stated the very bad precedent that would be set would begin a potential land grab starting with smaller cities and eventually smaller counties throughout the State being gobbled up by their larger neighbors; and inquired if the Board wants to be responsible for such a poor precedent in the State of Florida.   He  stated the heart  of  the issue is the dirt; and in his opinion, the water wars with the City of Melbourne is a classic example, as it has no water for West Melbourne’s expansion, and West Melbourne is Melbourne’s largest customer, but ironically have plenty for their own to the west.  He stated he hopes the Board thinks through the delicate issue; and those Commissioners who feel strongly about property owners’ rights must ask the question what are the real long lasting problems and legal challenges that will occur only if considering property owners’ rights; and the water issues between the two cities will be resolved in the near future one way or the other and the Platt’s will have access to water and essential city services via the only natural choice, which is the City of West Melbourne.

 

Stephaney Eley stated she would like to talk about what she sees as a terrible precedent that the Board has the opportunity not to set; the Board not only will be setting a precedent for the County, which would allow other municipalities to leap-frog over other municipalities, but it would also be setting a precedent for the entire State; and nowhere in the State currently is a municipality allowed to enter into this kind of Agreement when the petitioning municipality is more than two miles away from the potential annexed property.  She advised not only would the Board be allowing the annexed property to be two miles away from the petitioning property, but it is creating an enclave of a current municipality; not only is Melbourne asking for the Platt property, it is asking for much more, including properties that already have a pre-annexation agreement with West Melbourne; and this is not just a petitioning entity, the Platts asking for this to be done, this is the City of Melbourne asking to completely encompass the City of West Melbourne; and if that occurs, the Board is going to be responsible.  She stated there is no precedent within the State right now, and if other municipalities attempt to leap-frog over current municipalities they are going to point to the Brevard County Board of County Commissioners as the entity that set the precedent; and the Board will be the landmark case for the rest of the State.  She stated she believes individual property rights are extremely important; but every day government entities weigh the rights of the individual property owner over the rights of all the residents in their jurisdiction; property owners are told they cannot serve alcohol within a certain distance of church or school; and because of that, it limits the rights of the property owner as to what they are able to do with their property.  She stated the Platt Ranch does not want the St. Johns Heritage Parkway to go through their property, yet the County has taken a stand to say it believes it is the proper alignment for the Parkway in order to best benefit and to most properly align the Parkway with beachside annexation and to go through the City of Palm Bay to open up the lands; and the County could give the Platts their property rights and allow them to do what they want with their property, but the Board has already taken a stand as said it believes it is in the best interest of the County.  She stated by allowing this type of annexation to take place, the Board is opening up an incredible can of worms for the entire State; she believes it is a bad precedent to set to allow it to take place; the Board needs to look at the needs of not only the Platt’s and one municipality, but all municipalities within the County and State; and to allow Melbourne to create an enclave of West Melbourne is poor planning.  She stated the Board will see other property owners come before it and state that not only is it going to impact West Melbourne and potentially Palm Bay, but their property as well; and the Board has to weigh the property rights of those individuals against the property rights of the Platt’s.  She stated it is a bad precedent and the Board needs to look at it very carefully because when small municipalities around the State are being gobbled up by larger municipalities they are all going to look at the Brevard County Board of County Commissioners as being responsible.

 

Doug Platt stated his family has spent a lot of time and money over the last year trying to pick which City would best to annex into; for the family’s needs and desires, the City of Melbourne is their choice; but the only way to annex into Melbourne is with the new Statute.  He stated he is happy to have participation with West Melbourne and Palm Bay if their input is positive; but his family does not want to be casualties of the ongoing fights between West Melbourne and Melbourne; he knows the two cities are in a lawsuit with each other; and that is why he is asking the Board to make two small changes to the proposed resolution.  He stated in the last “Whereas” to change from 171.2, to 171.3 and add the term “participating municipality” at the end of section three; and his advisors have told him the changes will not limit input and participation with West Melbourne and Palm Bay.

 

Commissioner Fisher inquired if Mr. Platt could explain why he chose Melbourne over West Melbourne.  Mr. Platt replied it was for the active need and water and sewer availability in the future, as right now West Melbourne does not have those from what he has seen from his advisors.  Commissioner Fisher inquired if utilities were the main reason for wanting to go with Melbourne; with Mr. Platt responding affirmatively. 

 

Commissioner Bolin stated Mr. Platt indicated utilities would be provided in the future; and inquired if Mr. Platt has an estimate of when he would be getting sewer and water if he was annexed.  Mr. Platt responded if his family had the choice, they would not be here today; his family has been put in the position over Heritage Parkway; if his family is not prepared in the near future it will put them out of business; and that is why they have been forced into the situation.  He stated if his family can continue in agriculture for the next 20 to 25 years, that is where he plans to be. 

 

Commissioner Anderson stated he knows Mr. Platt does not want to have West Melbourne as an invited participant versus just a participant, but he has some concerns about Palm Bay and the conflict between Melbourne and West Melbourne; and Palm Bay is not a party to that.  He inquired if Mr. Platt is committed to the Heritage Parkway if the annexation were to be approved.  Mr. Platt stated the term ‘committed’ is a big term.  Commissioner Anderson stated regardless of who annexes, the Parkway is vital to the health and safety of thousands of residents in West Palm Bay; it is nice to have a commitment from Melbourne; but he needs a commitment from the property owners in some respect also.

 

David Reynal, City Manager, West Melbourne, stated the Board should have a copy of the Council’s Resolution seeking an invitation to participate in the negotiations for an Interlocal Service Boundary Agreement with the County, Melbourne, and Palm Bay; and he would like to read three sentences from legislative intent of the bill that authorized Part II, Chapter 171, because he thinks it is relevant to the discussion today.  He read, “The principal goal of this Part is to encourage local governments to jointly determine how to provide services to residents and property in the most efficient and effective manner while balancing the needs and desires of the community.”  He stated the second sentence reads, “It is then intent of this Part to promote sensible boundaries that reduce the cost of local governments avoiding duplicating local services an increase political transparency and accountability.  This part is intended to prevent inefficient service delivery and an insufficient tax base to support the delivery of those services.”  He  stated before  the Board is a petition that the City  of West Melbourne  believes  violates the

basic planning principles and legislative intent of Part II of the Act that he read; stated fire rescue, law enforcement, code enforcement, planning and zoning, and utilities services all become more difficult when the property being annexed is physically removed from the provider; and in this case the provider is the City Melbourne, with the City of West Melbourne in between.  Mr. Reynal asked the Board to imagine an emergency call from the new island of Melbourne, west of I-95; a Melbourne Police Officer would have to drive a mile and a quarter down a very congested John Rodes Boulevard, U.S. 192, and under I-95 just to get to the nearest part of the newly annexed property.  He commented on fire calls also having a slower response time, at least until development can justify construction of a fire station.  He noted by contrast, West Melbourne is contiguous with the proposed municipal service area in at least three different places; West Melbourne believes the extension of West Melbourne City services westward make logical sense and is consistent with the intent of the 2006 legislation.  He stated it is also important to note that much of the land proposed for the annexation by Melbourne is intended to be kept in agriculture uses, at least for the next 10 years according to a letter that was sent to John Denninghoff recently; stated the statutory language of Part II does not allow the annexation of non-contiguous property by Melbourne in this case, unless the area is urban in character; Chapter 171, Part II defines what urban in character is; and the property under consideration does not meet that definition; but he has the definition if the Board wants it.  He stated an area that is urban in character is one that is used intensively as residential and industrial; the Platt Ranch and the other properties are not contiguous with Melbourne; and he believes it would be impossible to annex into Melbourne in the near future.  He stated even if an Interlocal Agreement could be negotiated, it appears it would be at least a decade before Melbourne could actually lawfully annex the bulk of the proposed MSA under the Act; and Melbourne’s proposal is premature and not consistent with the purpose and intent of the 2006 Act.  He advised West Melbourne respectfully requests that it be included in any negotiations for an Interlocal Service Boundary Agreement regarding unincorporated land lying adjacent to West Melbourne’s western city limits; and any such agreement would potentially have an overwhelming impact on West Melbourne’s residents and it’s future as a City.

 

John Thomas, Vice Mayor, City of Melbourne, stated the City of Melbourne respectfully requests and asks the County to authorize negotiations with a number of properties west of I-95; most of the properties have already requested services from the City of Melbourne; this is a unique situation; and the City of Melbourne is being careful to not only follow the law, but also respect the rights and wishes of the property owners.  He stated with regard to the Parkway and the interchanges, the City of Melbourne has already spent $750,000 acquiring property for the Ellis Road interchange; and the City of Melbourne appreciates the Board’s consideration and looks forward to working with the County. 

 

Pat Poole stated she has lived in Melbourne since 1925 when the population was 2,500; she was a member of Melbourne City Council for 18 years and had a lot of problems to think about; but she always had to let her heart say what she felt; and she got into trouble sometimes.  She stated she loves both Melbourne and West Melbourne; she has spent a lot of her life with both Cities; a long time ago, Melbourne wanted to annex West Melbourne and there was a referendum; and she carried petitions for West Melbourne to not be annexed into Melbourne because she felt they were both individuals and should be cities of their own.  She asked the Board  to  think  about  who it  represents,  which are the people; the people are what makes the Cities and the County; and to her a person’s property is his mansion, no matter what.  Ms. Poole  stated the request is something she feels the Platt’s have a right to ask for; non of the area would have developed if the Platt’s had not come with their cattle and opened up the area in which the other cities have developed from; and she feels the Platt’s have given good reasons as to why they chose Melbourne. 

 

Maureen Rupe stated she is the President for the Partnership for a Sustainable Future, which is a coalition of 17 environmental and community based groups in Brevard County; and the Partnership has taken no position on the issue, but it is extremely concerned.  She advised the first concern is that the annexation might set a major precedence for annexations within Brevard County and could change the County landscape forever; right now, there are still large tracts of land that have not been developed within the County; developers could start shopping for a city that could provide water or sewer services, or look for a city that has lenient development zoning laws; and the annexation could even lead to bidding wars between cities on who could provide the most to the landowner in order to entice the landowner’s voluntary annexation.  She stated in the Port St. John area, Cocoa could lead leapfrog Canaveral Groves and annex Port St. John Parkway with the property owner’s consent and County revenues could be lost from the Parkway; when the new FPL plant is built, FPL will generate $12 million in new taxes in the first year; and those numbers are enough to make any city council drool; and if a city could persuade FPL to request annexation, it would bring big dollars to a city’s coffers and the County would lose millions in added revenue.  She stated with 16 cities in Brevard County it could potentially negatively impact unincorporated Brevard; the cities are going to go after the land giving the most potential income, leaving the lower income properties to the County; the County may even look at incorporating itself; and there will just be small pockets of land.  She stated she hopes the Board studies the ramifications of this type of annexation, as it could lead the County into the ultimate urban sprawl.

 

Doug Sphar stated he represents the Sierra Club Turtle Coast Group.  He stated in 2006 the Florida Legislature accommodated influential development interests by amending Chapter 171 of the Florida Statutes regarding the annexation of territory into a municipality; the amendment says that if a county or municipality negotiates an Interlocal Boundary Agreement, any character of land may be annexed, including, but not limited to, annexation of land not contiguous to the boundaries in the annexing municipality; and it creates an enclave for an annexation where the annexed area is not reasonably compact.  He stated the amendment flies in the face of long standing and well proven planning principals; traditionally, when considering annexation the principle of continuity has been a central tenant of land use planning; continuity offers great efficiency for providing and maintaining a central infrastructure such as roads, water, and sewer; and continuity also offers efficiency providing for services such as police and fire.  He noted there are less tangible factors to consider; non-contiguous annexations create enclaves that are disembodied from the main community; future residents of enclave properties would struggle to establish a community identity or sense of being part of Melbourne; and especially since it would be next to other cities such as Palm Bay and West Melbourne.  He stated Chapter 9J5, Florida Administrative Code identifies some indicators of urban sprawl; depending on the comprehensive plan treatment that Melbourne would automatically grant to annex enclaves, the following sprawl indicators could be triggered: 1.) The annexation allows for a land use patter toward   timing,  which   disproportionately   increases  the  cost,  time,   money  and  energy  for providing and maintaining facilities and services including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire, emergency response, and general government; 2.) As a result of prematurely or planned conversion of rural land other uses, the annexation fails to adequately protect and conserve natural resources such as wetlands, flood plains, native vegetation, environmentally sensitive areas, natural ground water, and aqua recharge areas; 3.) The annexation fails to adequately protect adjacent agricultural area activities including active agricultural activities and passive agricultural activities, and dormant unique farm lands and soils; and 4.) The annexation fails to provide a clear separation between rural and urban uses.  He noted as stated in the letter to the County from West Melbourne, the proposed Interlocal Service Boundary Agreement and probable resulting annexation creates a precedent that would encourage the creation of other disconnected and remote colonies or islands far from the parent cities in Brevard County; stated before proceeding in this manner, the Board should thoroughly investigate the ramifications of service boundary agreements that would lead to non-contiguous annexations and develop a comprehensive policy for addressing the agreements in resulting annexations; and there is a strong possibility for unintended consequences.

 

Scott Glass, Attorney representing West Melbourne, stated there have been some excellent speakers who have made some very good points about some of the potential unintended consequences of Chapter 171, Part II.  He advised once the Board receives the initiating resolution it has an obligation to negotiate in good faith with the City of Melbourne; the City of West Melbourne understands that; the Board is not obligated to reach an agreement; but it is obligated to sit down at the table; and the City of West Melbourne is asking for merely an invitation to sit down at that table as well.  He stated what Melbourne has proposed is unprecedented in the State of Florida; the Statute has been used very infrequently so far; Sarasota and Venice have an agreement, but their area is completely contiguous; and Indian River County is in the process of negotiating an Interlocal service boundary agreement with all five of their municipalities.  He stated what Melbourne is asking to do is to annex 4,000 acres west of the City of West Melbourne, which is unprecedented; because it is unprecedented, the potential impacts to not only the City of West Melbourne, but also the citizens of Brevard County are currently unpredictable; and there are public policy ramifications that may not have been considered yet.  He stated for example, even if a municipal service area and annexation area is approved as requested by Melbourne, an Interlocal Service Boundary Agreement does not preclude the property owners from annexing under Chapter 171, Part I, in two contiguous municipalities; there is a risk because there will be property owners who can play one municipality that is eligible to annex against another; in looking at the Senate Staff Report, when Chapter 171, Part II was adopted, a number of  problems were identified that Chapter 171, Part II was supposed to address; one problem was a duplication of essential services and zoning efforts thwarted by land owners shopping for the best development climate; and it may or may not happen, but the only way to prevent something like that from happening is to have all of the affected municipalities at the table so that if an agreement can be reached, it can be reached by all of the parties negotiating it together.  He stated he cannot predict what is going to happen because the situation has never happened before; the fact that it is such a new animal is evidenced by the expectation that the Platts have that they will be able to annex quickly; and in the letter from the Platts to Mr. Schluckebier, dated October 2^nd, the Platts stated that they looked  forward  to  Melbourne’s  efforts  affect  the  annexation  in the near future; however, the Platts’ attorney, Mr. Frese, in a letter to Mr. Denninghoff, dated October 1^st, stated the Platts desire to continue farm ranch operations with minimal interference and/or modification of their operations for at least the next 10 years; and the problem with that is that while Chapter 171, Part II removed contiguity it does say, “However, such area must be urban in character, as defined in Chapter 171.0138.”  He noted as Mr. Reynal indicated, urban in character as a defined term talks about densities and uses; agriculture is not an urban in character use; unless there are plans in place in the immediate foreseeable future, it is not urban in character; and he is not sure the Platts understand all the ramifications of Chapter 171, Part II.  He stated the City of West Melbourne is fully committed to the Heritage Parkway.  

Tuck Ferrell stated he is from Indian Harbour Beach, which is also an adjacent land owner to the east.  He stated the City of Indian Harbour Beach respects property owners’ rights, but no one knows what the ramification of such an annexation would mean or what the impacts are going to be to the area; the City of Indian Harbour Beach is very concerned about transportation, water, sewer and all the utilities; and there needs to be good planning to avoid confusion, and there needs to be a holistic approach, as there are some road problems.  He stated the biggest problem is concurrency and there is a transportation problem that affects the whole County; the best idea is to invite Palm Bay, West Melbourne, and Melbourne to sit down at the table and figure out the best thing to do; and he wants the right things to happen for the Platts as well as everyone else.  He stated it is important that everybody be invited to participate, otherwise, they do not have any input.

 

Andrew Jones stated negotiation and services have been mentioned a number of times; services are something that will come to the property in the future; West Melbourne has a sewer line on the west side of I-95 already; it is not ready to be used for a property that large; but the City Council is in the process of having those discussions that would meet the needs in the future.  He stated the parties materially affected by the annexation are West Melbourne, Palm Bay, and Melbourne and they should all have the opportunity to be at the table as it is negotiated; and that is his primary focus.  He stated services will come in the future by whomever is servicing those areas; stated West Melbourne or Melbourne will have to build services such as police and fire to meet the needs of the Platt property; the Parkway, in effect, is something he did not understand five years ago; but he understands the property rights of the Platts; and those things can be hammered out in negotiations with the County and the materially affected parties.  He stated a declaratory judgment has been asked for water services, which is meant to clarify the needs of Melbourne and West Melbourne in regards to water; and it is not intended to harm Melbourne in any way.  He stated the City of Melbourne would not be ready to service the property in the next five years; there would be infrastructure that would have to be built; all parties involved would have to build the infrastructure it would take to service the land area; and no one is prepared today to do that.

 

Victor Brungart stated everyone needs to sit down at the planning table with everybody involved; more communities than just Melbourne and West Melbourne are involved; what is being discussed it not just the Platt property, but it is also water; he works for the City of Melbourne water treatment plant and looks at Lake Washington and thinks Brevard County is going  to  run out  of water  one of these days;  and  everybody  needs to  sit  down and look the planning involved for Brevard County.  He stated what the Board decides will be a landmark decision for the State of Florida.   

 

Commissioner Bolin inquired if Mr. Brungart stated he is employed by the City of Melbourne; with Mr. Brungart responding his company is a sub-contractor to the City of Melbourne and provides private security by keeping the water pure. 

 

The Board recessed at 11:05 a.m. and reconvened at 11:20 a.m.

 

Chairman Nelson stated he would like to hear from Gary Frese.

 

Gary Freese stated a lot of good thoughts have been made; a lot of the discussion, however, is ahead of where it needs to be; the Platts are only asking today to get the process started for discussions to begin between the Cities of Melbourne and the County.  He advised the Platt family accepts that the Parkway is going through their property; that is the whole reason why this process has started; if the Platt Ranch is going to be divided, they have to plan for their future; and the future for the Platts means annexation.  He stated the Platts chose Melbourne primarily on need; West Melbourne does not have the current need for future residential land, and Melbourne does; and the DCA has told the Platts that without that need, it will not consider a land use request.  He noted one of the elements when applying for a comprehensive land use plan amendment is to prove need; the DCA has said that is the most important factor; and Melbourne clearly had the need and West Melbourne did not; and that was the primary basis for the decision to choose Melbourne.  He stated the Platts welcome participation by neighboring cities, however, they fear that because of some existing issues between Melbourne and West Melbourne that they may be caught in the crossfire and become a casualty; and therefore, he would ask that the Board not go through invitation process, but instead agree with the City of Melbourne that West Melbourne and Palm Bay can be participants in further discussion. 

 

Chairman Nelson stated it would be helpful if the County Attorney could explain the Board’s options.  County Attorney Scott Knox stated once the City of Melbourne initates the process, the Board does not have a choice but to sit down at the table and discuss issues; the critical thing from the Board’s point of view is to identify the issues it wants to talk about to the extent that has been identified by Melbourne in their resolution; and if there are additional issues the Board wants to talk about, it should add those issues to its resolution.  He stated for example, the issue of urban character has been brought up several times; that would be an issue the Board would want to talk about as to what Melbourne thinks urban character means and how it thinks it qualifies; beyond that, the Board has the right to invite other cities to participate, which in this case would be West Melbourne or Palm Bay; and those cities would also participate in the negotiations, but under Statute, those cities also have a right to declare an impasse after six months if negotiations cannot be brought to a successful conclusion. He advised if an impasse is declared it forces the process into Chapter 164, Dispute Resolution, which requires the Board to sit down and talk about conflicting issues; and if that does not work, one of the parties can ask for mediation, which would require a third discussion.  He stated the Board has an obligation to sit down in good faith and negotiate.

 

Commissioner Anderson stated a lot of his time as a new Commissioner has been spent on this subject; stated he has met with everyone at least once; and he knows there are some extenuating circumstances between Melbourne and West Melbourne; he thinks it is incumbent on the County not to get involved; and whatever those issues are needs to be sorted out by the two cities on behalf of all the residents in both cities.  He stated in this case, the Platts will only benefit by annexing into Melbourne because of DCA requirements; however, with most of the property being in District 5, it is very important that West Melbourne and Palm Bay are invited as participants; it is the only fair thing to do, and it is the only thing that is proper to do as a County Commission that has constituents in all three cities; and that is his recommendation.  He noted the City of Melbourne has made a commitment to the Heritage Parkway; the Parkway is one of his primary concerns; and as long as that commitment is there, he feels good; however, he wants West Melbourne and Palm Bay in that negotiating process as a safeguard.

 

Commissioner Fisher stated he has some concerns from a County standpoint; the County is interested in making sure the Parkway is a Parkway; if he puts on his developer hat, he would want it to look like Wickham Road, which could create more business opportunities and cut out more parcels; he knows the County has earmarked $22 million for the Parkway; and his concern would be that the County gets into the negotiations that it ought to be clear that if the Parkway does happen, and the County is expected to participate, the County would only want to do that if it is truly going to be able to move traffic through and not have congestion.  He stated he supports the Parkway as it is needed in the community; but if the County is going to spend dollars, he wants to make sure that it is spent for that purpose.  He inquired if the Platts can annex into both cities; and could that at least be looked at and considered. 

 

Commissioner Infantini stated she is concerned because her understanding of the law, the criteria for annexation is that the property must be urban currently, and it does not seem to follow that within the law; she is also a property rights individual, so she is conflicted, yet Melbourne’s need and lack of space for expansion does not translate to the legislative intent of leap-frogging; and even though she is for property rights, it does not seem to follow the legislative intent for the legislation.  She stated as for providing services in an efficient manner, she has seen where Melbourne owns city parcels on the barrier island; and she has been baffled for 20 years on how Melbourne owns separate parcels that are not adjacent to one another on the barrier island and have to go all the way around; and she thinks the Board would be setting a bad precedent at this point to start allowing leap-frog annexation without a great deal more planning by all parties involved.  She stated if the Platts need to do something with their property, Brevard County should be allowed to do it; she does not know what the County is not doing that is holding up the Platts that requires them to annex; and inquired why Brevard County does not let the Platts develop what they want.

 

Commissioner Bolin stated the Board needs to decide what it wants to have on the issues to be discussed where the meeting is required to be held; she would like to extend the invitation to West Melbourne and Palm Bay to be at the table for the discussion; and she would like to add to the resolution that also being discussed will be the urban characteristics and the Parkway.  She inquired what Mr. Platt mentioned that he wanted to change in the resolution.  Planning and Zoning  Director  Robin  Sobrino  advised  Mr. Platt  was requesting in one of the ‘whereases’ to change the reference in the State Statute from Paragraph 2 to Paragraph 3 to define the other municipalities as participants rather than invitees.  Commissioner Bolin stated one decision the Board has to make is to say if the cities are invited it means they would be able to vote on the final decision; if the cities are participants it means they are at the table for discussion only; but when it comes down to the final decision, they do not have a vote.  Assistant County Manager Mel Scott advised if the cities are participating, the Statute reads that they cannot invoke the impasse provision which then kicks them into the Chapter 164, and then the process defaults.

 

Chairman Nelson inquired if the County participates and the City of West Melbourne does not like the outcome, what is their recourse.  Attorney Knox replied that presumes there is no agreement that the City of West Melbourne would agree with, in which case it can invoke the impasse provision if invited.  Chairman Nelson inquired what happens if West Melbourne is a participant.  Attorney Knox replied if there is participation as opposed to invitation, assuming an agreement was met at the end, there would be a legal issue as to whether the property qualifies under urban character; and that would be something someone could raise in a lawsuit. 

 

Chairman Nelson stated he has some questions for the City of West Melbourne; stated West Melbourne wants to be at the table as an invitee in order to have some authority to impact the decision; and inquired what West Melbourne is going to negotiate that would allow this to come to some resolution that the parties can agree to.  David Reynal replied the negotiation process would be to see what issues need to be resolved; no matter the final decision, West Melbourne is interested in the Parkway; and the provisions of public services is critical to the City.  He stated the Platts own the largest property, but there are other owners that are affected by the decision also that are not present today.  Chairman Nelson inquired if there is a discussion that ends up in an agreement that allows annexation into the City Melbourne and address the issues that the City of West Melbourne has.  Mr. Reynal stated that is a decision the Council would have to make; the City of West Melbourne is not saying there cannot be a resolution; but it is critical to be at the table. 

 

Scott Glass stated Chairman Nelson indicated it is an all or nothing situation; but he thinks there are really three issues involved in the negotiation of the agreement, only one of which is annexation, which may or may not make sense for the Platts to annex into Melbourne; and it is not known until everyone sits down at the table.  He advised another issue is the provision of utilities; the City of West Melbourne has a sewer line on the west side of I-95, whereas the City of Melbourne does not yet have; one of the goals of Chapter 171 is to avoid duplication of services; and those are issues that can be negotiated.  He noted the third issue is planning for development; the City does not want industrial backing up to single-family residential; both cities have a vision for how they want the area to look; and there are public policy concerns that may not be able to be identified unless all of the stakeholders are at the table.

 

Commissioner Anderson stated he wants to be clear in making sure the Board is following Florida Statute 171; inquired if the Board is not doing anything that is not already established under the Statute, as all the Board is doing is allowing all the parties to come together and get the process started; whether leap-frogging is desirable or not, unfortunately, the Florida Legislature has put it in there and the Board is almost obligated to follow it.  Attorney Knox stated that is correct, and Commissioner Anderson explained it very well. 

 

Chairman Nelson inquired if the leap-frogging concept is literally provided for under the Statute.  Attorney Knox replied under this Statute it is; however, there are other things to worry about; in the Planning Statutes DCA approval of plan amendments is needed, he does not think the DCA looks too kindly upon leap-frogging; but he does not know where that line is drawn.  Chairman Nelson stated when there are two very close communities it is one thing, but when one is a significant distance away it is a different issue because of other factors. 

 

Commissioner Fisher inquired if it makes any difference from the County standpoint when talking about participating or inviting.  Attorney Knox stated the County is invitees and just has to negotiate in good faith; and there does not have to be an agreement at the end of the road, but it has to negotiate in good faith.  Commissioner Fisher inquired what happens if the County does not come to an agreement.  Attorney Knox stated there is no sanction for not having an agreement; the Statute clearly recognizes that the parties may not be able to agree with everything; and there may not be any agreement at all, but the trick is to negotiate in good faith. 

 

Commissioner Fisher stated it is his understanding that the Platts tried to negotiate with West Melbourne before they decided to go to Melbourne.  Gary Frese stated that was the initial direction; a lot of time was spent with West Melbourne and had no problems with them at all; the problem was when they went to the DCA to find out the land use portion, they told the City that unless it had need, do not come knocking.  He stated the City’s planners did a matrix of the three cities of West Melbourne, Palm Bay, and Melbourne to determine which one of those cities would be most likely to get what is needed from the DCA; and in his objective opinion it was Melbourne.  Commissioner Fisher stated West Melbourne is going to bring several issues to Melbourne; and inquired if Mr. Frese sees it possible to work out those issues, and what are the concerns the City of Melbourne has with the City of West Melbourne.  Mr. Frese replied the concerns with the City of West Melbourne may or may not come to pass, but Melbourne is concerned that West Melbourne is disappointed, that the two cities are in a lawsuit, and Melbourne’s needs and desires may get sidetracked by virtue of those two items and not be able to be included because of ulterior motives that really are not what the Platts are looking for; and the Platt family is looking to get annexed and get their land use.  He stated the whole issue is a result of the Parkway going through and dividing the property; stated that is why everybody needs to come to the table and not get to the end and allow someone to say they were not invited.  Commissioner Fisher inquired if the Platt family would consider tabling the issue and sitting down with West Melbourne.  Mr. Frese stated he does not think the Platts can do that; Chapter 171 reads that a responding resolution has to be passed in 60 days; and that is what the Platt family is concerned about.  Attorney Knox advised the Platts cannot do that, but the City of West Melbourne could do that, although it cannot do that today, as it would have to go back to its City Council.  Commissioner Fisher inquired if it is possible to table the issue and allow the cities to sit down and come to some type of agreement with everyone at the table without the resolution; it would put the Board in a situation in which if in those 60 days, it does not look like an agreement can be reached, they can come back and ask the Board to act on the resolution, the Board can do that at that point in time.  Mr. Frese stated if the Board moves forward today with a resolution that says West Melbourne and Palm Bay are participants, it will be done anyway; the process will then start and the two cities will be participants in the discussions. 

 

Commissioner Fisher stated he is concerned that once the resolution is passed and it now becomes known that the Platt property will annex into Melbourne and utilities could be provided, there is going to be a perception, or reality, that land values will continue to climb; and that the County will end up spending more money for land once the resolution passes than it would today.  He stated if there were some parcels the County might have wanted for a Parkway, the County might be able to take this time and negotiate those; his concern is the cost for the County is going to increase drastically once the resolution passes; and also that there are several other issues that need to be worked out. 

 

Mr. Frese stated another factor was the constitutional amendment for hometown democracy; although that got pushed off this year, he understands that it will be on in 2010; and in the scheme of this kind of project, that is not very far away.  He stated that is why he believes a lot of the same results can be reached if the resolution is passed today; and he would like to move forward for fear that if they do not, they may get caught up in hometown democracy, which has a chance of rerouting the Platt family’s plans.  Commissioner Fisher inquired if Mr. Frese thinks 60 days will kill the project; with Mr. Frese responding would not kill everything, but he would like to move forward.  Commissioner Fisher stated he would like the Platt family to sit down with West Melbourne, Palm Bay and the County to hash out some of the issues.  Mr. Frese stated it sounds to him like West Melbourne does not want the annexation to happen; and while he respects that, the Platt family is using the Statutes that are on the books that are new, but everybody is making it sound as though it is illegal.  He stated it is very legal; the reality is that West Melbourne is not going to be happy if the City of Melbourne leap frogs the city; and that is an issue that cannot be resolved.  Commissioner Fisher stated he gathers from West Melbourne that it understands that the leap-frog may happen, but they want to be at the table; and that is why he is asking for the 60 days to hash out some of the issues. 

 

Chairman Nelson stated Mr. Ferrell owns property near the subject area; and while he is not directly impacted, he is directly impacted potentially at a future date.  Mr. Ferrell stated he just went through some land planning with the DCA; he is not familiar with the statute in which it might be encouraging a situation; and he does not know if the Platt family has anything in writing from their planners, but he has not heard about the DCA encouraging annexations.  Chairman Nelson inquired if the DCA has given anything to Mr. Frese in writing that indicates it is encouraging annexations.  Mr. Frese replied it was not in the realm of encouraging annexations; it was in the realm of asking for comprehensive land use changes, which have to be done either way. 

 

Commissioner Infantini stated it is her understanding the Platt family is currently using their own water and septic facilities, so it is not currently in need of the City of Melbourne’s facilities right now; she is not trying to prevent the Platts from developing their property if that is their ultimate goal; and inquired if there is a way to develop the property without annexing.  She stated it does not seem like the Platts meet the legislative intent of annexing; and inquired if there is a way to still develop the property with a binding development plan so it will get them out of the homerule charter they are concerned about; and can the Platt family submit a binding development plan now.  Mr. Frese replied it is his understanding that the County has the same problem for the Platt family as West Melbourne; the County has plenty of undeveloped land that can be used for residential, but it would not meet the need basis that the City of Melbourne would meet. 

 

Commissioner Infantini stated the County is not permitted to give the Platt family permission.  Mr. Frese stated it is that the DCA would not approve the request for future land use designations on the Platt ranch for residential at this time because the County does not have a need at this time, or in the foreseeable future, for more land designated for residential purposes. 

 

Chairman Nelson inquired if the Platts came in with a new town concept, how would they do that.  Assistant County Manager Mel Scott stated he recognizes the future need component that Mr. Frese has identified, but he will share with the Board that this kind of conversion from agricultural to something that would approximate a new town would have to go through the same myriad of issues that the Viera Company is going through with their conversion; it would never be as simple as stating that if jumping over the hurdle of future need that one is home-free; and there are going to be a whole host of all the service delivery.  Chairman Nelson stated theoretically it is a DRI in whichever City.  Mr. Scott noted it would depend on what they were coming in for; if they were to stay in the County and want to do a phased approach and bring something below the DRI thresholds then it would be a large scale comp plan amendment that would have to address the financial feasibility, the concurrency issues, the conversion of the land to something else; and all the other agencies would be weighing in.

 

Commissioner Fisher inquired if the City of Melbourne would consider pulling its resolution off the table for 60 to 90 days to allow the County to do some things it would like to do, and also to open up discussions with West Melbourne and Palm Bay.  Mr. Schluckebier stated if the City gets to the end of the 60 to 90 day process and there are more problems, there will still be the burden to cross of West Melbourne objecting; if West Melbourne is going veto after resolving the issue, that is Mr. Frese’s concern; but Melbourne would not object to an additional 60 days if there is something at the end of the rainbow that does not automatically end up being rejected by West Melbourne.  Mr. Gougleman stated that is the difference between whether West Melbourne is invited or is a participant; if West Melbourne is a participant there is less opportunity for hurdles to be thrown up; and if West Melbourne is an invited municipality then there are more opportunities.  He stated as a participating municipality, West Melbourne is still going to be able to raise their concerns.  Mr. Schluckebier stated the burden is already on the City of Melbourne, the Platts, and the County staff working together under the arrangement to come to an agreement satisfactory to the Board; the City of Melbourne’s mission is to do that; and as the County Attorney said, if that cannot be done, then there is no harm done to the Board.  Commissioner Fisher stated the City of Pam Bay and the County may have some things it wants to do because the value of the property may change drastically once the resolution is passed.  Mr. Schluckebier stated he thinks that can be worked around with land acquisition for the Parkway; and he believes it is an excellent opportunity for the County and the City just asking for the chance to negotiate something in good faith.  He stated he wishes there was a middle ground where there was something in which the parties would identify their issues; and if those parties were willing to resolve those issues. 

 

Chairman Nelson stated it is time for the Board to make a decision, as it has heard from both sides.

 

Commissioner Anderson inquired if it would be the County’s cost to fight objections later on, if there are any, such as if there are issues with the Parkway that the Board is not happy with.  Attorney Knox advised the County would have to fight a legal battle if it came to an agreement with the City of Melbourne, for example, and did not invite West Melbourne or Palm Bay to the table, whether they were participants or just did not have anything to say about it; at the end of the road the legal issue of the urban character comes up and someone says the Statute was not followed to begin with; and then the County is party to an agreement where the Statute does not apply, and the County ends up defending it. 

 

Commissioner Bolin stated if the County has West Melbourne and Palm Bay as invitees and the two cities fight the fight in the discussion, and then they have the ability to do the impasse, if the County has them come as participants and they bring up their concerns in the discussions, then it falls upon the County’s shoulders to continue on with the items that they have brought up, because the County is the only one voting; and the County would then assume representation of them as far as the final decision.  Attorney Knox replied the Statute is a little fuzzy on what participants’ rights are; they do not have a right to impasse; but he does not think there is anything to stop participants from becoming a party to the agreement, for example, if everybody agreed to something, because all local governments have the ability to enter into Interlocal Agreements; and he is not sure where participants would stand except they would be presenting their issues, and if they can resolve them that is fine, and if they cannot be resolved they are not going to be a party to the agreement unless everybody agrees to it. 

 

Commissioner Fisher stated it is his understanding that a participant does not have much authority versus an invitee.  Attorney Knox stated issue at the end of the road is whether or not the property qualifies for this kind of agreement; and that is going to linger until the end, unless everybody is a party to the Agreement.

 

Chairman Nelson stated he thinks both cities are quality cities; but he has concerns that the State created this capacity in the first place because there are problems with existing zoning laws that allow some of the types of annexations that have been seen, but that is a different issue; and there is the dynamic of a city being able to leap-frog over another city.  He stated he feels it is going to end up in litigation no matter what the Board does; stated he does not think the process should be easy; all the parties should be involved because at the end of the day, one city will have been picked over the other to give them some level of advantage of the discussion; and if it’s going to end up in litigation anyway, all the parties should be there so at least there is some opportunity to fix it.  He stated his position is that all the parties need to be at the table and need to be invitees. 

 

Motion by Chairman Nelson, seconded by Commissioner Fisher, to approve inviting the Cities of Melbourne, West Melbourne, and Palm Bay to the process and participate in discussions, in accordance with the Interlocal Government Service Boundary Agreement Act.  Motion carried and ordered unanimously.

 

 

County Manager Peggy Busacca noted there has been some discussion about modifying the resolution  to include urban character and to modify Sentence b, which states,  “Planning efforts for future transportation corridors,” to include the words, ‘including the Parkway’, so that it is highlighted.

 

Motion by Chairman Nelson, seconded by Commissioner Fisher, to modify b) and add c) to the City of Melbourne Resolution No. 3031.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini requested clarification on the amended language.  Mr. Scott advised Section IV of the Resolution would include b), which states, “Planning efforts for future transportations corridors, including the St. John Heritage Parkway”, and c), which states, “Determination whether the property qualifies as being urban in character as defined in Section 171.031 Paragraph VIII.”

 

 

Motion by Chairman Nelson, seconded by Commissioner Anderson, to adopt City of Melbourne Resolution No. 3031 as amended.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Anderson stated the item may need to be submitted under a package of things to have a Workshop.  He stated he had some reservations on not so much the process or the selection, but how it was done; stated the decision was made between the election and the time that the new Commissioners were sworn in; but now he has some say-so about it.  He stated there are some concerns as with the problems associated with selection of the auditing firm; his biggest concern is the number of years the current firm has been contracted; national standards dictate that they should be switched out; but that is neither her nor there.  He stated the Board is not going to go back and rewrite the contract; however, it needs to give direction to the County Attorney to ensure that the process is followed in a manner in which the County is not open to liability in the future; and he feels there were some things done, which was no one’s fault.  He stated the Board should have formally terminated negotiations with the selected firm before it went on to Berman and Hopkins; and he would like guidance from the Board to forward his recommendations to the County Attorney to develop polices and procedures for Auditor selection to present to the Board for adoption. 

 

Commissioner Bolin stated she sees no problem with tasking Attorney Knox with putting together some policies so that it is crystal clear in the future.

 

Commissioner Fisher stated he feels there should be some kind of matrix in which the Board is giving local preference one or two points extra; and if there is a contract situation in which both parties are equally qualified and the cost is the same, but because there is a local firm, that firm would have a local preference over an outside firm.  He stated it is important to support local business.

 

Commissioner Anderson stated he concurs with Commissioner Fisher; but when he was with the City of Palm Bay and it tried to provide local preferences, other municipalities would actually sanction the counties who have local preferences; and for instance, Orange County may deduct two points from a Brevard County firm because Brevard County has adopted a local preference policy. 

 

Attorney Knox stated he has no problem with the Board direction; however, he would like some assistance from Assistant County Manager Stockton Whitten, as he is the one who is intricately involved in the selection process for the auditing firm; and he can point Mr. Whitten in the right direction as far as the Statute and law requires.

 

Chairman Nelson stated one issue that came up was that the make up of the selection committee was changed; and he would like to readdress the make up of that committee.  He stated another issue was that he felt there was a criteria that got created for selection that was not part of the criteria; the Board literally asked for experience and then said it did not want someone who has been with the County for any length of time; if the Board chooses to limit the number of years for an auditing firm, it is a discussion it can have; but he felt it crept into the ranking process, and that was not fair for any of the firms, but especially the current firm.  He stated he would like those issues dealt with and brought back to the Board.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to direct the County Attorney, along with Assistant County Manager Stockton Whitten, to develop policies and procedures for Auditor selection to present to the Board for consideration, including Commissioner Anderson’s Policy Recommendations readdressing the make-up of the Selection Committee, and limiting the number of years an auditing firm can serve Brevard County.  Motion carried and ordered unanimously.

 

 

 

Commissioner Anderson stated it is imperative that Brevard County be in front of what other counties are doing to encourage commercial growth; he does not need to mention the impending doom there is with the Kennedy Space Center; in order to be in front, the County has to be attractive to small and large companies; and small companies suffer more than anyone when it comes to commercial impact fees.  He stated the Board needs to have a Workshop to address a moratorium on impact fees along with other economic development incentives that the Board can do as a County Commission and partner with the Chambers of Commerce and the EDC; but right now there are counties in Florida that are offering everything to get businesses to come in; and Brevard County needs to be in front.  He stated people want to talk about revenue loss, but there is no revenue loss because there are no businesses locating in Brevard County right now; and a moratorium is an encouragement to show that the best place to be in Florida is on the Space Coast and the Board encourages economic and business growth. 

 

Commissioner Bolin stated she agrees 100 percent with Commissioner Anderson; the Board should schedule a Workshop on the subject; the Board needs to help out its businesses; and the Board also needs to look at the industry-types of businesses that need to be brought in.  She stated she would like to direct the Chairman to task Commissioner Anderson to put together a Workshop.

 

Victor Brungart stated he agrees with Commissioner Anderson on a Workshop on the subject; the commercial impact fees really do affect existing small businesses very heavily; and as a small business man himself, he thinks there should be a definitive look at the effect on existing small businesses on commercial impact fees.

 

Maureen Rupe stated she the President of the Partnership for a Sustainable Future and she is also the natural resource chair for the League of Women Voters of the Space Coast; and supporting impact fees is a position of both groups; but what she is about to say she is saying as an individual.  She stated the burden of infrastructure on new developments should not be placed on the financial backs of current residents, nor is there any rational argument for over extending the transportation capacity to the point of gridlock; and the property values and quality of life of current residents must be protected.  She noted commercial impact fees pay for roads, fire rescue, EMS, and solid waste; there are approximately $450 million in road repairs in Brevard County; and the huge backlog of road repairs is due to the fact that impact fees were not fully implemented until 2006.  She stated if impact fees are eliminated in any way, it would cut the loss revenue stream that the County has for road infrastructure; the local option gas taxes are bonded out for the next 30 years; the constitutional tax is bonded through 2021; and the County could add six cents to the local option gas tax, which would generate approximately $7 million, but no one will want to do that with how the gas prices have been.  She stated the current economic times has been a burden on all businesses, and especially small businesses because she knows many of them that are going out of business; instead of giving money away to competitors to the current businesses, which gives an unfair advantage to new development, why not give something to the businesses already located within the County, such as a rebate program or something of that nature.  She noted Brevard County has recently paid a substantial amount of money to perform a study to find out the impacts of new growth; and the cost of providing services infrastructure has not decreased.  She stated removing the impact fee would place the burden back on the existing taxpayer instead of on new growth where it belongs.

 

Doug Sphar stated a moratorium on commercial impact fees is proposed as an economic stimulus; in order for it to work it must be approximate to economic crisis; given the severe worldwide financial meltdown, do enterprises plan on building soon, and do they have plans to get financing.  He stated soon there will be a lot of empty commercial space; the Orlando Sentinel recently reported that commercial tenants are walking away without notice; and Business Week reports the new year will bring a wave of retail bankruptcies with some well known names going under.  He stated impact fees are payments required of new development for the purpose of providing new or expanded public capital facilities and infrastructure required to serve that development; generally the fees are paid up front; if a developer does not contribute then the taxpaying public must either step up and pay through tax increases, or suffer a loss of quality of life due to a degraded level of service; and an open ended impact fee moratorium could do nothing for Brevard County citizens except to dig a deeper infrastructure shortfall hole to stand in.  He stated those already in Brevard County paid for the surplus capacity through increased tax burden over time; it is not fair for a new person to come in and get a free ride on a surplus capacity; and there are plenty of other worthy opportunities for allocating  the  impact  fee.   He  stated  if  the  Board  holds  a  Workshop he would suggest the following issues be addressed in a staff investigation: 1.) Given the current economic situation, what is the probability a moratorium would spur a new construction in the near future; 2.) The Vested Rights issue; if a moratorium is enacted there seems to be a strong potential for developers to rush out and obtain permits on speculation even if they have no plans on breaking ground any time soon; but when the economy turns around they could break ground and then claim they are vested with no impact fees; and inquired what checks would be in place to make sure that a moratorium cannot be gained in this manner; 3.) Performance criteria for monitoring the progress of the moratorium and milestones associated with the criteria; without such criteria, how would the Board know that a moratorium is achieving its intended purpose; 4.) Termination criteria for the moratorium; termination criteria would work in conjunction with a performance monitoring criteria; some set of circumstances should trigger an end to the moratorium.  He stated finally, he does not see any options on the Agenda; if there were, he would recommend the one that directs no staff action and to continue with commercial impact fees.

 

Commissioner Fisher stated he thinks a Workshop is a good idea; but there is one thing he wants to make sure the Board does.  He advised the impact fees and the study the County did to determine what the fee should be are expensive; and because of that, several cities adopted the County’s Impact Fee Ordinance.  He stated if the Board decides to have a Workshop, he thinks it would be prudent for it to invite some of the cities to the Workshop so the Board can understand what kind of impact that might have on their communities; and he would like staff to look at what capital projects are planned down the road that will not get done if the impact fees are not there.  He stated he is all for stimulating growth, but he wants to understand what ramifications there may be by not having the impact fees; for example, Park Avenue was done in three phases; Phase I was completed; Phase II just got the funding to begin; but there is a third Phase that if the impact fees are eliminated, it will most likely not get done.  He stated he knows there are several developers that have gotten impact fee credits; and inquired if impact fees are stopped, what will happen to those credits, and how does one apply if there are no impact fees.  He noted the Workshop will address a lot of that stuff, but there are some issues that the Board has to get figured out.

 

Commissioner Anderson stated he does not want to burden the Board with unnecessary means if it does not think there will be a resolution to the issue; being on City Council, everyone realizes being in the small business industry that whether people want them in or not, that impact fees were primarily used as an anti-growth method by anti-growth special interests; and they hurt a lot of people.  He stated he knows of parents in his district that do not care about growth in their neighborhood because they have kids they have to feed; that is more important than anything; and his primary concern is to take care of those people above all else, and that is what he is going to do for four years.  He noted impact fees were also used by the cities as a revenue stream; voters were mislead because they thought impact fees were going to solve all the ills of the County; but as the Board knows, impact fees can only be used for capacity projects; and impact fees cannot be used to fix roads or drainage.  He stated a lot of people were lied to, to push impact fees that were nothing more than an environmental special interest anti-growth method; now people are suffering and out of work; and the Board needs to do whatever it can to get people back to work.  He stated if the Board wants to move forward, there is a Budget Workshop on January 15^th in the morning, and the Board can proceed with a Workshop on impact fees.  He stated if the Board is not committed to it, then it should not waste any time and just move forward to something else. 

 

Commissioner Fisher stated he feels that everything is on the table; and he is willing to talk about the issue; but he is just saying if the Board does it, that it invites everybody to the table.

 

Chairman Nelson stated if someone believes that a new business creates an impact, then there is a fair fee that is associated with that; the County did the study; and there are some in the study that he would like to look at, but he believes they create an impact and should pay their fair share.  He stated he believes that if a business does not pay the impact fee, then the citizen that Commissioner Anderson is worried about is going to end up paying taxes; and there a lot of road issue and other issues that were created because the County did not do those things.  He advised he believes in impact fees and that they need to be fair and appropriate; he also believes the Board can look at the timing; the previous Board had looked at some time payments to allow businesses to pay over a period of time because sometimes it is a big hit upfront; and those are the kinds of things he would be supportive of; but to do away with impact fees creates a huge issue.  He noted in the future the Board will be dealing with the Heritage Parkway; and impact fees are going to be a part of that funding mechanism because the County does not have enough money to do the Parkway with just gas tax.  He advised there were portions of the County that were going to get their road project taken care of at a later date, but that date is probably not going to come, at least in his term.  He stated he does not think there needs to be a Workshop to discuss the issue; but the Board could address issues like that to staff and have them report back to the Board on fairness issues; but as far as a moratorium, he cannot support it because he believes it opens a Pandora’s Box.

 

Commissioner Anderson stated he wants to be clear that he is not talking about residential impact fees. 

 

Commissioner Infantini stated she would like to remind everybody that commercial structures already pay a disproportionate share of property taxes because they have no exemptions; homeowners are privileged to have a reduced tax burden because of homeowners exemption; commercial properties already takeover an unfair share of the tax burden, whether it is a rental property or a regular commercial structure, they already pay a disproportionate share; and so hitting them additionally with an impact fee for trying to provide a business which is going to be available to all the residents seems unfair. 

 

Commissioner Bolin stated her concern with the impact fees is that she was looking at the low-intensity; those would be the small businesses who have to branch out and get their own unit; and she is not talking about any kind of relief to the Wal-Mart’s or Target’s of the world because they indeed have a high impact.  She stated as far as talking to staff, she would like to see where the Board stands as far as the low impact; and those would be qualified by how many trips they generate.  She stated Viera is being built on mostly impact fees; and if the Board does not want a Workshop, that is fine, but she would like to get more information to answer the low-impact.

 

Chairman Nelson inquired if there is a motion.  Commissioner Anderson stated he believes staff was given direction; and inquired if a motion is needed.  Chairman Nelson stated to clarify, staff is going to look at the issue of impact fees in terms of fairness.

 

County Manager Peggy Busacca advised the Board gave staff direction on low-impact commercial fairness issues, time payment, impact fee credits impacted by moratorium, capital projects that could be impacted by a moratorium, impacts to municipalities in the event of a moratorium, economic incentive whether impact fees function; and then one of the issues brought up was the mom and pop business, which is similar to the low-impact commercial. 

 

Chairman Nelson stated in terms of timeliness, he thinks that is critical; and inquired if staff can get back to the Board by the 13^th of January; with Ms. Busacca responding affirmatively.  Chairman Nelson stated he thinks that is critical.

 

 

Chairman Nelson read into record the Notice of Attorney-Client Private Meeting as follows:  on Tuesday, December 2, 2008, at 11:30 a.m., or as soon thereafter as possible, the Brevard County Board of County Commissioners will meet for the purpose of discussing settlement negotiations and/or strategy related to litigation expenditures in Roberts v. Brevard County, Case No. 05-2003-CA-057511-XXXX-XX; the persons attending the attorney-client private meeting will be:  Robin Fisher, County Commissioner District 1; Chuck Nelson, County Commissioner District 2; Trudie Infantini, County Commissioner District 3; Mary Bolin, County Commissioner District 4; Andy Anderson, County Commissioner District 5, Peggy Busacca, County Manager; Scott L. Knox, County Attorney, Morris Richardson, Assistant County Attorney; and Angel Hampton, Brevard Associated Court Services, Inc.  He advised the attorney-client private session will be held in the County Manager’s Conference Room, Third Floor of Building “C” at the Brevard County Government Operations Center, 2725 Judge Fran Jamieson Way, Viera, Florida, 32940; and the estimated length of the attorney-client session is one hour or less.  

 

Upon motion and vote, the meeting adjourned at 12:40 p.m.

 

 

 

ATTEST:                                                                     ___________________________________

‘                                                                                   CHUCK NELSON, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)