September 16, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on September 16, 2003, at 9:04 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: Commissioner Truman Scarborough.

The Invocation was given by Reverend Scott Brand, St. Andrew United Methodist Church, Titusville, Florida.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the Minutes of the August 19, 2003 Special Meeting. Motion carried and ordered unanimously.

APPROVAL, RE: RESCHEDULE AGENDA ITEM

County Manager Tom Jenkins stated Commissioner Scarborough, who is unable to be here today, has asked that item VI.F.7, Citizen Request of Wae Nelson, Re: Botanical Garden, be rescheduled to the next meeting.

APPOINTMENT, RE: ADVISORY BOARD

Commissioner Pritchard stated his appointee for the Dog Beach Study Group will be Fran Gorecki.

REPORT, RE: CAPIT COURT CASE

Commissioner Pritchard noted it has been stated that there is no record of the Board of County Commissioner putting up a defense or giving direction to the County Attorney not to defend the County regarding the Capit position. He stated Mr. Knox appeared in court as an observer only; and inquired is it possible that the County never properly appeared in court, that the court never obtained personal jurisdiction over the County and the case, and that it could be invalid. He stated currently the case is before the Appeals Court; and inquired if it is shown at any time that the court did not have proper jurisdiction, then is it true that a higher court can declare the entire thing null and void. He stated he has been told a court must have jurisdiction over both the subject and the parties in any case to render a valid decision; and he was thinking of taking the question to the three attorneys who were hired to review the Capit provision and asking them for a legal opinion.

County Attorney Scott Knox stated the court had jurisdiction because the court serves the process over the County, so there is no issue of jurisdiction involved.

REPORT, RE: AGENDA ITEMS AND CANVASSING BOARD

Commissioner Higgs stated she had previously indicated she would be pulling Item III.F.7, Approval, Re: Bills and Budget Changes, from the Consent Agenda, but other than recognizing there is a significant budget adjustment for the Sheriff’s Office, she will not be pulling the item for discussion.

Commissioner Higgs stated the Canvassing Board, of which she is a member, will be meeting at 10:00 a.m.; there is also a time certain scheduled for 10:00 a.m.; and requested the Board take a brief break at 10:00 a.m. to allow her to go to the Canvassing Board, and then take up the time certain item.

Chairperson Colon stated the Board will take the time certain item, Item IV.F, Request for Determination of Vested Rights, Re: Henry and Joanne Saunders, at 10:10 a.m. She inquired if III.F.7 will remain on Consent Agenda; with Commissioner Higgs responding she intended to pull it, but her questions have been answered; and she wants the Board to recognize the significant budget adjustment for the Sheriff’s Office.

REPORT, RE: SAMPLE THE ARTS

Commissioner Carlson welcomed Judy Good, President of the Melbourne Municipal Band, who is here for the Sample the Arts.

Judy Good stated the Melbourne Municipal Band is the 100-piece volunteer band that presents two free concerts every month at the Melbourne Civic Auditorium; and the Swingtime Band, which is a spin-off of the Melbourne Municipal Band, is an 18 to 20-piece swing band, originally playing in the “Big Band” style of Glenn Miller and Benny Goodman, but now playing an enlarged repertoire to please the patrons. She stated dances are offered approximately once a month at the Melbourne Auditorium; there is a small charge of $5 in advance and $6 at the door; and Swingtime is the main contributor to the Melbourne Municipal Band’s budget. She stated Swingtime is also available for private parties; and there is also a smaller Dixieland Band that plays for smaller occasions. She stated the bands offer musical entertainment to the citizens of the County, and also offers the opportunity for musical education to many musicians who move to the County. She advised after a presentation a County Commissioner asked why no one told him the band was so good; and so, she is telling the Board the bands are good. She stated they are blessed with many retired musicians who moved to Brevard County in order to be able to play with the band; and invited everyone to come and hear the bands. She stated the next concerts will be on November 25 and 26, 2003 at the Melbourne Auditorium; and the next Swingtime Dance will be October 3, 2003.

Commissioner Carlson stated next time the band can do a sample performance; with Ms. Good advising there is music in the foyer.

ANNOUNCEMENT, RE: TIME CERTAIN ITEMS

Chairperson Colon stated Item IV.F will be heard at 10:10 a.m.; at 10:30 a.m. the Board will hear V.A., at 11:30 a.m. it will hear VI.F.3, at 1:00 p.m. it will hear VI.B.1; and at 1:30 p.m. it will hear VI.A.4.

ANNOUNCEMENT, RE: SCHOOL BOARD SUMMIT

Chairperson Colon stated the School Board Summit will be November 20, 2003; the invitations will go out from Dr. DiPatri, Georgia Phillips of the Space Coast League of Cities, and herself representing the Board; and the meeting will be held at the School Board Chambers. She stated the meeting will be from 9:00 a.m. to 12:00 noon; and there will be entertainment from the various schools. She stated it will be an opportunity for the elected officials to meet with the School Board members and County Commissioners; and there will be a meet and greet opportunity from 10:30 a.m. to 11:00 a.m.

ITEMS REMOVED FROM CONSENT AGENDA

Chairperson Colon stated Item III.A.13, Approval, Re: FY 2003-04 Cultural Events Matching Grants, has been pulled from Consent Agenda by a citizen. Commissioner Pritchard requested Item III.C.3, Resolution and New Position, Re: Establishing Revised Fee Structure for Natural Resources Management Office, be pulled for discussion.

UNPAVED ROAD AGREEMENT WITH COLIN FLANAGAN, RE: FARNSWORTH AVENUE
EAST

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Colin Flanagan for construction of a road in the existing County right-of-way of Farnsworth Avenue East, subject to minor engineering changes, and receipt of drainage easements and deeds as applicable. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH WILLIAM LANG, RE: SAPLING AVENUE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with William Lang for a building permit off the existing right-of-way of Sapling Avenue, which has been constructed to the standards of the Unpaved Road Ordinance, Section 62-102. Motion carried and ordered unanimously.

REQUEST FROM BUD CRISAFULLI, RE: CREATION OF FLAG LOTS AND EASEMENT
LOT OFF HALL ROAD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the request of Bud Crisafulli to create three flag lots and one easement lot along with two lots accessing Hall Road for a total of six lots. Motion carried and ordered unanimously.

APPEAL TO SECTION 62-3206(E)(5), PARKING REQUIREMENTS, RE: WICKHAM AND
95 CORPORATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to waive section 62-3206(e)(5) thereby allowing the site plan of Wickham and 95 Corporation to be approved without curb stops in the parking lot of the new Shoppes at Lake Andrew located at the northwest corner of I-95 and Wickham Road. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT, RE: HERITAGE ISLE SUBDIVISION, PHASE I

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

CONTRACT WITH PINEDA CROSSING CORPORATION, RE: IMPROVEMENTS IN DEER
LAKES SUBDIVISION, PHASE 3

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contract with Pineda Crossing Corporation guaranteeing improvements in Deer Lakes Subdivision, Phase 3. Motion carried and ordered unanimously.

RESOLUTION, RE: RELEASING CONTRACT WITH JOYAL CONSTRUCTION
CORPORATION FOR IMPROVEMENTS IN AURORA WOODS SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution releasing Contract dated January 28, 2003 with Joyal Construction Corporation for improvement in Aurora Woods Subdivision. Motion carried and ordered unanimously.

CONTRACT WITH POINT AND PAY, INC., RE: SURCHARGE FEES ON CREDIT CARD
PAYMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contract with Point and Pay, Inc. for electronic payments utilizing credit and debit cards. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH NEWFOUND LAND AND PROPERTY
MANAGEMENT COMPANY, RE: PROPERTY LYING WEST OF PELICAN CREEK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Binding Development Plan with Newfound Land and Property Management Company for property lying west of Pelican Creek. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH MARTHA K. ROSS, RE: PROPERTY OFF TURTLE
MOUND ROAD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Binding Development Plan with Martha K. Ross for property off Turtle Mound Road. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENTS WITH THE CITY OF WEST MELBOURNE AND THE TOWN
OF MALABAR, RE: ADMINISTRATION OF STORMWATER UTILITIES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Interlocal Agreements with the City of West Melbourne and the Town of Malabar for the County to administer and manage their stormwater utilities. Motion carried and ordered unanimously.

SUNSET REVIEW OF POLICY BCC-27, RE: CONSTRUCTION CONTRACTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Policy BCC-27, Construction Contracts. Motion carried and ordered unanimously.

AGREEMENTS WITH DEPARTMENT OF COMMUNITY AFFAIRS, RE: WEATHERIZATION
ASSISTANCE GRANTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreements with the Department of Community Affairs for Weatherization Assistance Program (WAP), Low-Income Home Energy Assistance Program (LIHEAP), and Low-Income Emergency Home Repairs Program (LEHRP) grants. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY
SERVICES, RE: TECHNOLOGY GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Florida Department of State, Division of Library Services for a technology grant in the amount of $63,800; and authorize the Chairperson to execute the necessary documents. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY
SERVICES, RE: STATE AID TO LIBRARIES FY 2003-04 GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Florida Department of State, Division of Library Services for State Aid to Libraries grant for FY 2003-2004. Motion carried and ordered unanimously.

APPROVAL OF PAYMENT TO SCHOOL BOARD, RE: SHARE OF PARKING LOT
CONSTRUCTION AT GARDENDALE ELEMENTARY SCHOOL

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve payment of $45,000 to the Brevard County School Board for the County’s share of the cost to construct a parking lot at Gardendale Elementary School. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH FLORIDA FISH AND WILDLIFE CONSERVATION
COMMISSION, RE: FLORIDA BOATING IMPROVEMENT PROGRAM GRANT FOR
POW/MIA PARK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager to execute Amendment to Agreement with Florida Fish and Wildlife Conservation Commission, after approval by the County Attorney and Risk Manager, to extend the time for the Florida Boating Improvement Program Grant for development of POW/MIA Park. Motion carried and ordered unanimously.

PROJECT AGREEMENT AMENDMENT WITH FLORIDA INLAND NAVIGATION DISTRICT,
RE: POW/MIA PARK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Project Agreement Amendment with Florida Inland Navigation District for a one-year extension of the project grant for POW/MIA Park boat launch improvements. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH CITY OF SATELLITE BEACH, RE: SUBLEASE OF
GREEN BEACHFRONT SAVE OUR COAST PARCEL

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution and execute Agreement with the City of Satellite Beach to sublease the Green beachfront parcel for development, operation, and maintenance as a park. Motion carried and ordered unanimously.

ACCEPTANCE OF CONVEYANCE OF REVERSIONARY INTEREST, RE: GMSA
PROPERTY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept the Conveyance of Reversionary interest from Melbourne Eau Gallie United Soccer Association (MEGU), formerly known as Greater Melbourne Soccer Association (GMSA) for property located in June Park Addition No. 3. Motion carried and ordered unanimously.

WAIVERS, RELEASES, AND HOLD HARMLESS AGREEMENTS, RE:
PARKS AND RECREATION DEPARTMENT ACTIVITIES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager to execute waivers, releases, and hold harmless agreements, after review and approval by the County Attorney and Risk Management, for Parks and Recreation Department activities. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACT, RE: DEMOLITION OF
EXISTING STRUCTURE AT BARRIER ISLAND ECOSYSTEM CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize advertising of formal bids for demolition of existing structure at the Barrier Island Ecosystem Center site; award of bid to the lowest responsive bidder; and the Chairperson to execute the associated contract. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF MELBOURNE, RE: AUTOMATIC AID FOR EMERGENCY
SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with the City of Melbourne for emergency services automatic aid. Motion carried and ordered unanimously.

APPROVAL, RE: ERRORS AND INSOLVENCIES TO 2003 EMERGENCY MEDICAL
SERVICES ASSESSMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Errors and Involvencies in the amount of $11,944.32 to the FY 2002-2003 Emergency Medical Services Assessment. Motion carried and ordered unanimously.

SUPPLEMENTAL NO. 1 TO TRIP AND EQUIPMENT GRANT AGREEMENT WITH FLORIDA
COMMISSION FOR TRANSPORTATION DISADVANTAGED, RE: TD TRUST FUND
GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Supplemental No. 1 to the Trip and Equipment Grant Agreement with Florida Commission for the Transportation Disadvantaged for $1,028,832 in the TD Trust Funds and $260 for Brevard County’s share of the volunteer dollars from license plate sales to fund the Brevard Transportation Disadvantaged Program. Motion carried and ordered unanimously.

CONSENT AGREEMENT AND FINAL ORDER WITH USEPA, RE: RESOLUTION OF
DISPUTE ON SUBMISSION OF TITLE V ANNUAL COMPLIANCE STATEMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager to sign the Consent Agreement and Final Order between USEPA and Brevard County to resolve the compliance dispute regarding the submission of the Annual Compliance Statement for the County’s landfill gas management system at the Central Disposal Facility. Motion carried and ordered unanimously.

CONTRACTUAL SERVICES AGREEMENT WITH FLORIDA DEPARTMENT OF
TRANSPORTATION, RE: COLLECTION AND DISPOSAL SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contractual Services Agreement with Florida Department of Transportation for the County to provide for its collection and disposal needs within the County for a period of one year, except construction projects performed by independent contractors. Motion carried and ordered unanimously.

REAPPOINTMENT, RE: CITIZEN APPPOINTEES TO INTERNAL AUDIT COMMITTEE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to reappoint Randy Foss and Albert Little to the Internal Audit Committee, with terms of appointment to expire on September 17, 2004. Motion carried and ordered unanimously.

ACCEPTANCE, RE: ACCOUNTS PAYABLE, FACILITIES DEPARTMENT, AMBULANCE
BILLING, AND ANIMAL SERVICES AUDIT REPORTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept Audit Reports of Accounts Payable function of County Finance, Facilities Department, Ambulance Billing, and Animal Services prepared by Internal Auditors of Brevard County dated May 22, May 30, and July 15, 2003. Motion carried and ordered unanimously.

APPROVAL OF POLICY BCC-25, RE: PROCUREMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept the recommended changes; and approve revised Policy BCC-25, Procurement. Motion carried and ordered unanimously.

PERMISSION TO REJECT BIDS AND AWARD THIRD BID, RE: BID #B-5-03-84, EXERCISE
EQUIPMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to reject 1 and 2 bids and award Bid #5-03-84, Exercise Equipment-Treadmills, to Gym Source at $131,580 for 34 commercial grade treadmills for Brevard County Fire Rescue stations Countywide. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING TAX EXEMPT COMMERCIAL PAPER LOAN FOR
SELECT CAPITAL PROJECTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution authorizing borrowing of not to exceed $465,000 from the pooled Commercial Paper Loan Program of the Florida Local Government Finance Commission, for select capital projects. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUESTS FOR PROPOSALS, APPOINT SELECTION AND
NEGOTIATING COMMITTEES, AND AWARD CONTRACTS, RE: CONTINUING INDOOR
AIR QUALITY ASSESSMENT AND ABATEMENT CONTRACTING SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise Requests for Proposals for continuing IAQ Assessment and Abatement Contracting Services, appoint Facilities Director Sam Stanton, Facilities Engineering and Construction Director Jaime Irizarry, and Safety Officer Les Forsberg to the Selection Committee; appoint Facilities Director Sam Stanton and Facilities Engineering and Construction Director Jaime Irizarry to the Negotiating Committee; authorize award of contracts; and authorize the Chairperson to execute said contracts. Motion carried and ordered unanimously.

PERMISSION TO USE SNAPS STATE CONTRACT, RE: INSTALLATION OF
REPLACEMENT COOLING TOWERS AT HARRY T. AND HARRIETTE V. MOORE
JUSTICE CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to use SNAPS State Contracts for installation of replacement cooling towers at Harry T. and Harriette V. Moore Justice Center at $116,462.50. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACTS, RE: REPAIRS TO
SPACE COAST STADIUM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to bid repairs needed at Space Coast Stadium; authorize award of bids to the lowest qualified and most responsive bidders or use of existing competitively bid contracts; and authorize the Chairperson to execute all associated contracts with the successful bidders. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF
EMERGENCY MANAGEMENT, RE: HAZARDOUS MATERIALS ANALYSIS UPDATE
GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Florida Department of Community Affairs, Division of Emergency Management for the Hazardous Materials Planning Analysis Update for Brevard County; and authorize the County Manager or his designee to sign any documents or modifications to the Contract. Motion carried and ordered unanimously.

LETTER AND ADMINISTRATIVE AGREEMENT WITH NATIONWIDE RETIREMENT
SOLUTIONS, RE: 457 DEFERRED COMPENSATION RETIREMENT PLAN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager to execute a letter and Administrative Agreement requesting that Nationwide
Life Insurance Company transfer, effective October 3, 2003, all of the Plan’s assets within the National Association of Counties Variable Annuity Contract to the Trust fund maintained by Frontier Trust Company, Trustee of the Plan’s assets. Motion carried and ordered unanimously.

APPROVAL OF WORKERS’ COMPENSATION CLAIM SETTLEMENT, RE: WILLIE YOUNG

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the negotiated settlement of the Workers’ Compensation claim of Willie D. Young at $30,400 inclusive of attorneys’ fees and costs, along with a waiver of the Workers’ Compensation lien for the February 21, 2002 automobile accident and a general release and voluntary resignation from County employment. Motion carried and ordered unanimously.

MEMORANDUM OF UNDERSTANDING WITH LABORER’S INTERNATIONAL UNION,
LOCAL 678, RE: BARGAINING UNIT EXPANSION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Human Resources Director to execute the Memorandum of Understanding with Laborer’s International Union, Local 678, placing the job classification of roofer in the LIU Bargaining Unit. Motion carried and ordered unanimously.

APPROVAL, RE: REQUISITION OF ONE-TWELFTH OF FY 2003-04 BUDGET FUNDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Sheriff’s requisition for one-twelfth of FY 2003-04 annual appropriation by the first Board of County Commissioners’ meeting in October 2003 for personnel and operational costs. Motion carried and ordered unanimously.

APPROVAL OF RECLASSIFICATION, RE: EXISTING BUDGET FUNDS IN LAW
ENFORCEMENT PROGRAM PROFILE FROM RESERVES CAPITAL TO CAPITAL
IMPROVEMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve reclassification of existing budgeted funds of $124,474 in the Law Enforcement Program Profile from Reserves Capital to Capital Improvements. Motion carried and ordered unanimously.

RATIFICATION, RE: EXPENDITURE OF LOCAL LAW ENFORCEMENT BLOCK GRANT
2001

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to ratify the expenditure of the 2001 Local Law Enforcement Block Grant of $26,359 plus interest and $6,290 match money supplied by State Forfeiture Funds for the Forward Looking Infra Red (FLIR) Enhancement Project. Motion carried and ordered unanimously.

ACCEPTANCE OF GRANT, RE: GANG RESISTANCE EDUCATION AND TRAINING

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Sheriff to accept the cooperative agreement for grant funding of $61,200 from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, to reimburse the Sheriff’s Office for salaries and benefits and programs expenses incurred for instructing the Gang Resistance Education and Training Program in middle schools. Motion carried and ordered unanimously.

GRANT-IN-AID AGREEMENT WITH OFFICE OF THE STATE COURTS ADMINISTRATOR,
RE: CIVIL TRAFFIC INFRACTION HEARING OFFICER PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute the Grant-in-Aid Agreement with the Office of the State Court Administrator for $25,893 for expenses currently approved in the FY 2003-04 budget relating to the Civil Traffic Hearing Officer Program. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint John Kanzlemar, Jr. and Fran Gorecki to the Dogs on the Beach Study Committee, with appointments to expire February 26, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Bills and Budget Changes as submitted. Motion carried and ordered unanimously.

RESOLUTION, RE: COMMENDING ALICE LANCE

Commissioner Higgs read aloud a resolution commending Alice Lance for her service to the Port St. John Public Library Advisory Board.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to adopt Resolution commending Alice Lance for her service to the Port St. John Public Library Advisory Board. Motion carried and ordered unanimously.

Alice Lance stated she is active in Friends of the Library as well as the Library Advisory Board; it is a wonderful library; and she has been proud to help with it. She expressed appreciation to the Board for the Resolution. Commissioner Higgs presented the Resolution to Ms. Lance.

RESOLUTION, RE: COMMENDING ARTHUR L. THOMPSON

Commissioner Pritchard read aloud a resolution commending Arthur L. “Mack” Thompson for his outstanding contributions to the Brevard County road system, expressing appreciation for his dedicated service, and extending best wishes for good health and happiness during his retirement.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution commending Arthur L. “Mack” Thompson for his contributions to Brevard County. Motion carried and ordered unanimously.

Arthur Thompson explained why he was nicknamed “Mack”; and thanked the Board for the Resolution. Commissioner Pritchard presented the Resolution to Mr. Thompson.

RESOLUTION, RE: PROCLAIMING NATIONAL FAMILY DAY

Chairperson Colon read aloud a resolution recognizing September 22, 2003 as National Family Day - A Day to Eat with Your Children.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution proclaiming September 22, 2003 as National Family Day - A Day to Eat with Your Children. Motion carried and ordered unanimously.

Commissioner Higgs stated she has a 16-year old, and understands how important it is to eat with your children; and the probability that the teenager will actually eat is improved by having pizza, hamburgers, or chicken fingers.

Chairperson Colon stated she knows everyone lives busy lives, but this is important; in her home Wednesdays and Sundays are the days they go to church; and it is necessary to let children know that family is important. She stated spending time with your children is the biggest thing you can do for them; and it is important for the children to know their parents are listening to them.

RESOLUTION, RE: COMMENDING ROBERT G. OGLES

Commissioner Higgs stated Robert G. Ogles has served the County since 1981 in the Road and Bridge Department, and Roadways and Landscaping; and he has been an outstanding contributor to the welfare of the roads. She stated the Board appreciates his service, and wishes him well in his retirement.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution commending Robert G. Ogles for his 22 years of service to the County, and extending best wishes for good health and happiness during his retirement. Motion carried and ordered unanimously.

APPROVAL, RE: FY 2003-04 CULTURAL EVENTS MATCHING GRANTS

Samuel Lopez, President of United Third Bridge, Inc., requested the approval of the FY 2003-2004 cultural event matching grants be put on hold until there can be further research; and stated United Third Bridge (UTB) has questions about some of the people who served on the Board at the meeting when they applied for the grants. He stated he has a document showing how many who were applying for the cultural grants had grants in the past and how many years some have had grants; and they also have questions about the committee members, such as Amelia Williams and Brady Puryear, who also sit on the board of the Brevard Symphony. He questioned whether a person sitting on a board can have a vested interest in an application that comes in front of him or her; stated some of them said they were not receiving any compensation, but still sit on the board; and they requested information on others, such as Deborah Andree and Joe Conneen, but have not been given any information. He reiterated UTB has concerns about people serving on the board and at the same time applying for some of the grants; and stated UTB applied for grants but did not come out on the ranking at all. He stated when he got up to speak with reference to their grant, there were questions about whether or not UTB is a Florida corporation and whether or not it is a tax exempt organization in the State of Florida. He stated he has paperwork in front of him today showing the corporation is filed in the State of Florida, and not just in New York; in order to meet the requirements in Florida, they had to file a certificate of incorporation and whole set of new boards; and they have been operating in the State since 1998, and have the papers and documents if anyone wishes to see them. He stated they also had to apply to the State of Florida for a tax exemption; and he has a copy with him. He stated the parade is seven years old; the Salsa Festival is going on its eighth year; and those are the programs they do to serve the people of Brevard County. He stated they have had their office and post office box for more than seven years; and there was something from the County Attorney’s office that said they must be a not-for-profit corporation in the State of Florida. He stated the Board needs to put this on hold until it can find answers for all the questions that were asked and determine whether UTB was dealt with fairly. He stated before something came from the County Attorney’s office, there were already questions of the panel stopping UTB from receiving the grant; if there was any information that was needed, they could have asked at the TDC meeting; some of the information was supplied; and requested the Board put approval of the item on hold until there can be further research.

Commissioner Carlson stated she has been receiving comments about this particular session of grant allocations, so she does not have a problem supporting Mr. Lopez’ request. Commissioner Pritchard stated he would like to hear what the process was and a response to the allegations from Mr. Lopez.

TDC Executive Director Rob Varley advised applicants fill out a grant proposal and submit it to the Cultural Grants Panel, which is appointed by the TDC members; some of the panel members are members of some of the boards; however, they were informed there was no conflict of interest because they receive no remuneration from this effort while they are evaluating the grants; but that can be looked into. He stated with respect to the award of funds to organizations in multiple years, there was discussion in the past about that; there are organizations that have received funding every year since he came in 1994; they tend to be the organizations that do the best job presenting a grant proposal; and there has never been any limitation in the grant handbook for organizations saying they cannot receive grants after a certain number of years. He stated when he first came to the County in 1994, this was discussed; and the decision was made to continue to grant to those organizations that did a good job. He noted the Valiant Air Command did not receive funding this year; it had received funding every year since 1994; but this year the organization did not reach the cut. He stated they had $57,000 to grant out and $117,000 in requests, so it was not an easy task for the Panel this year. He stated the TDC received a legal opinion from the County Attorney’s office that their application said it was an organization headquartered in New York; and that fact made them not eligible for the grant.

Assistant County Attorney Barbara Ammans stated she reviewed the corporate documents that were filed with the grant application; their corporate documents indicated they were headquartered in New York and were a New York corporation authorized to do business in Florida; and they are not headquartered in Brevard County, which the grant handbook requires; so she had to advise that they were ineligible.

Commissioner Higgs inquired what is the status of the corporation under the Florida Secretary of State; with Ms. Ammans responding it is actively licensed or authorized to do business in Florida; but the headquarters are in New York. Ms. Ammans clarified UTB has completed the appropriate administrative processes to do business in Florida, but it is a New York corporation. Commissioner Higgs stated if it is a foreign corporation, meaning it was incorporated in another state, but is fully registered to do business in Florida, that makes it fine regarding the laws of the State and able to do all kinds of business; however, under the particular grant handbook, it says “a not-for-profit tax exempt Florida corporation,” which would be different than a foreign corporation filed to do business in Florida. Ms. Ammans advised that is correct.

Commissioner Pritchard inquired if Mr. Lopez’ paperwork says they are engaged to do business in Florida or does it say that UTB is a registered Florida corporation. Mr. Lopez submitted the Florida tax exemption form. Commissioner Pritchard stated he assumes Ms. Ammans has reviewed this; with Ms. Ammans responding yes, and no one challenged that UTB was a tax-exempt organization.

Mr. Lopez stated that is the requirement; and no one asked for that document at the TDC. He advised he has the Certificate of Incorporation and a letter from the Secretary of State; and read aloud from the letter, “Qualification documents were filed on February 5, 1998 and assigned number F-xxxx. Please refer to this number when corresponding with this office. Your corporation is now qualified to authorize and transact business in the State of Florida as of this date. The certification you requested is enclosed. Your corporation annual report will be due between January 1 and May 1 of the year following each calendar year. You need a federal tax ID number.” He stated a second letter from the Department of State says, “I certify that the records of this office is a corporation of the laws of New York authorized to transact business in the State of Florida, qualified on February 5, 1998.” Commissioner Pritchard stated it says UTB is a corporation of the State of New York that is allowed to do business in the State of Florida; and that is the problem. He stated the way the requirements for the grant are written, UTB is excluded because it is a New York corporation; the Board may or may not be able to do anything now; and inquired how can the language be modified such that if there is a foreign corporation licensed to do business in Florida, with a tenure of doing business in Florida, it could be eligible for a grant. Ms. Ammans stated the grant handbook could be revised for future cycles, but not this cycle. Commissioner Pritchard inquired how many other entities fall into the same situation as Mr. Lopez; with Mr. Varley responding he is not sure, but this is the first time they have run into this. Mr. Varley stated changing the handbook is a possibility; the Salsa Festival has been successful for a long time and is promoted on the Calendar of Events; and UTB is a good organization. He stated there are a lot of organizations that fail to qualify for funding; and they fund from the top until they run out of money. Commissioner Pritchard inquired who within the TDC office would address the proposed change; with Mr. Varley responding he and Kalina Person would address it; and they would bring back the Cultural Committee to discuss it. Mr. Varley advised every year the handbooks are discussed and recommendations for changes are made. Commissioner Pritchard inquired if the members of the Cultural Committee are also members of the boards of other organizations, some which receive money from the grant program; with Mr. Varley responding yes. Commissioner Pritchard stated when he and Mr. Varley discussed this, he was surprised that it is repetitious; it has become a line item on many of the cultural events; and while he has no problem with the events, he does have a problem with it becoming a line item. He recommended it sunset after three years; stated three years should be enough time to get something up and running; it would provide seed money; and then it would be time for the organizations to go out on their own. He stated the demographics of the County are changing; the Board needs to start reflecting on that change; and it may be possible to bring in some other cultural events. He stated there could be a conflict of interest regardless of compensation; and a panel member would tend to support the organization he or she is a member of. He stated he assumes UTB is not going to become a Florida corporation, but it is an entity providing service to the County residents; and recommended revisiting the obligations under the grant to see that organizations such as this are not excluded and that there are sunset provisions. He stated there is an opportunity for other organizations to receive money; it is not so much that it is going to break the organizations; and they will have to become more creative and seek funding elsewhere.

Commissioner Higgs stated a number of issues of interest to the Board have been raised; there was a recommendation to table the issue for additional discussion; and that is not a bad course of action to pursue. She stated the Board should understand all the provisions and that the Panel has proceeded fairly; she does not think there are conflicts of interest, but a more objective panel might be in the interest of all the people; and the Board could consider that. She stated she would like to see the item along with recommended changes for the grants panel, come back to the Board; and the Board could provide some direction to the TDC as to how it would like the process, since the Board ultimately has to approve it.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to table consideration of FY 2003-2004 Cultural Events Matching Grants to September 30, 2003 for additional discussion.

Commissioner Higgs withdrew the motion so there could be discussion.

Commissioner Carlson stated she would like to get the attorney’s opinion in writing on the potential conflict.

Kay Burk, representing the Brevard Cultural Alliance, stated she wants to provide background on how the idea of headquartering an organization in Brevard County came to be in the handbook; it is not a new thing; it had to do with organizations outside the County coming into the County to apply for Community Cultural grants and Tourism Development Cultural Events grants; some organizations from Orange County applied for both because they wanted to do some programming; they were headquartered in Orange County; and that is how the language came to be in the handbook. She stated that was prior to Mr. Varley or Ms. Person being with the TDC.

Commissioner Pritchard stated that is how the money should be used; the organization needs to be in the County; and he does not want organizations from other counties taking out money to do things in other counties. He stated the situation needs to be addressed.

Ms. Burk stated Commissioner Pritchard may be right about sunsetting; and suggested the Board also look at the value of tourism and addressing one-time events held on an annual basis versus those that are open on a daily basis such as museums. She stated some matters need to be looked at as far as what is ongoing and annual because they are two different issues, festivals take place on weekends and facilities are open and available to tourists all year.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to table consideration of FY 2003-2004 Cultural Events Matching Grants to September 30, 2003 for additional discussion of the specifics of the item along with the attorney’s opinion on the corporate status and potential conflicts, and recommendations by staff, the Board, and the public on ways to improve the process. Motion carried and ordered unanimously.

Chairperson Colon inquired if there is anything else Mr. Varley would like to add. Mr. Varley stated the Board is addressing something there have been discussions about recently; this is the first year where there has been a real discrepancy between the amount of funds available and the amount of funds requested; and it is a concern. He stated there are opinions at staff level that funds like this are good for starting a festival and getting it going; and then they can be weaned off and become self-sufficient. He stated he welcomes the Board’s opinions; and staff will look into matters.

PUBLIC HEARING, RE: RESOLUTION VACATING UTILITY EASEMENT (ORANGE
AVENUE) IN MERRITT RIDGE SUBDIVISION, SHEET 2 - MATTHEW J. NAETZKER

Chairperson Colon called for the public hearing to consider a resolution vacating utility easement (Orange Avenue) in Merritt Ridge Subdivisions, Sheet 2, as petitioned by Matthew J. Naetzker.

There being no comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating utility easement (Orange Avenue) in Merritt Ridge Subdivisions, Sheet 2, as petitioned by Matthew J. Naetzker. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY IN SECTION 26,
TOWNSHIP 26S., RANGE 36E. - PINEDA PARTNERS, L.L.C.

Chairperson Colon called for the public hearing to consider a resolution vacating right-of-way in Section 26, Township 26S., Range 36E. as petitioned by Pineda Partners, L.L.C.

Transportation Engineering Director John Denninghoff requested the item be continued to October 21, 2003.

There being no further comments heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to continue the public hearing to consider a resolution vacating right-of-way in Section 26, Township 26S, Range 36E, as petitioned by Pineda Partners, L.L.C. to October 21, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING DRAINAGE AND UTILITY
EASEMENT (COVE LOOP DRIVE) IN VILLA DE PALMAS SYKES COVE, SECTION II -
MICHAEL S. ALLEN

Chairperson Colon called for the public hearing to consider a resolution vacating drainage and utility easement (Cove Loop Drive) in Villa de Palmas Sykes Cove, Section II, as petitioned by Michael S. Allen.

There being no comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating drainage and utility easement (Cove Loop Drive) in Villa de Palmas Sykes Cove, Section II, as petitioned by Michael S. Allen. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS
(S. W. LAUREL CIRCLE) IN BAREFOOT BAY, UNIT 2, PART 12 - ABBOTT
MANUFACTURED HOUSING, INC.

Chairperson Colon called for the public hearing to consider a resolution vacating public utility easements (S.W. Laurel Circle) in Barefoot Bay, Unit 2, Part 12, as petitioned by Abbott Manufactured Housing, Inc.

Transportation Engineering Director John Denninghoff stated the newspaper made an error in the advertisement; it needs to be re-advertised; and requested the item be continued to September 30, 2003.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to continue the public hearing to consider a resolution vacating public utility easements (S.W. Laurel Circle) in Barefoot Bay, Unit 2, Part 12, as petitioned by Abbott Manufactured Housing, Inc. to September 30, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE REVISING ARTICLE IX, CHAPTER 62, AMENDING
CERTAIN SECTIONS OF THE CODE INCLUDING TEMPORARY SIGNS

Chairperson Colon called for the public hearing to consider an ordinance revising Article IX, Chapter 62, amending certain sections of the Code, including temporary signs.

Julie K. Song, representing Clear Channel Outdoor, stated in 1999, the County passed an Ordinance prohibiting new billboards; they have lived with that for four years; and they lost a number of structures due to development and the expanding County. She stated in the proposed ordinance, a nonconforming sign is listed as abandoned or discontinued for 180 consecutive days with no bonafide advertiser; 99% of her billboards are protected by the Highway Beautification Act and are on the Federal-aid primary highway system (FAP); and that act gives her 270 days. She suggested the Board look into changing the Ordinance to coincide with the State and Federal Acts; and advised if the County tried to take her board while she still has the State protection, there would be issues. She read from the language providing that after 180 consecutive days, a billboard would lose its nonconforming status; and advised by the Highway Beautification Act, which is part of Chapter 479, F.S., they have 270 days. She stated after 270 days, the State would give a notice of violation and revoke the permit. She stated on page 8, finding intent and purpose, it says, “the construction, erection, location, and use of off-premises signs currently affects the aesthetics, public safety, and public welfare of the people of the County . . . and will further degrade the aesthetic attractiveness of the natural and manmade attributes of the community, thereby undermining the economic value of the tourism and the permanent economic growth that is necessary for the promotion and preservation of public welfare and will have further detrimental effect on traffic safety.” She stated this is an opinion; it is not based on fact; and she can supply the Board with copies of a survey done showing billboards have never been involved in or caused any traffic safety accident. She stated her company is one of the three largest advertising companies in the County; 99% of her advertisers are local “mom and pop” stores, hotels, and restaurants; these people do business in the County and depend on the tourism dollars; and they depend on getting the tourists off I-95 and into their establishments. She stated it is not a fact that billboards are detrimental to the economic growth and the tourism industry; and that is just the opinion of the author.

Commissioner Pritchard stated billboards are not attractive; to drive down the road and see a sign saying fireworks five miles does not enhance the ambience of the community; and there is an item included for the Merritt Island Redevelopment Agency asking for a structure interpretation when it comes to balloons and banners and how long they can be erected before an event and when they have to come down. He stated the community has taken a position that large billboards are unattractive and do not enhance certain roadways; there may be some areas where billboards should be, but the huge billboard one block north of SR 528 on Courtenay Parkway is not attractive, even though it is a well constructed sign. He stated DOT has put some landscaping at the SR 528 and Courtenay Parkway interchange; they spent a lot of money putting in trees and other low plantings; and he heard complaints from the owners of a billboard that is diagonally across from the interchange claiming the new plantings are blocking the view of the billboard and may need to come down.

Ms. Song stated unfortunately they are in a situation that has happened five times in her market alone; the State regulates them, and they have State permits; by paying for the State permit and going through the process through the State, they are granted a tag; and they are not allowed to take down any trees to enhance the view of the billboard, but the State is not allowed to plant anything within 500 feet of the billboard either. She stated the Maintenance Department for this division got the grants for the beautification, but did not talk to Tallahassee; therefore, it is a miscommunication at the State level. She stated the State has paid to have all the trees planted and will have to pay to have the trees removed because it violated its own law; the billboard belongs to her company; and they are working with the State because they do not want the trees to have to be removed, although some will have to be cleared because they are right in the view. She stated they are working with the State on an alternative to do some clearing in other areas where pepper trees are a nuisance rather than having to take out all the palm trees; she lives on Merritt Island and takes that route to and from work every day; and she understands the issues involved, but the State violated its own law by not communicating, which had nothing to do with her company.

Commissioner Pritchard stated it is not often that he supports the position of the State, but he is with the State on this one; the billboard in question could not be read from SR 528 even before the trees were put in; and it really is more for people who are on the off-ramp waiting to go north or south on Courtenay Parkway. Ms. Song advised because it is within 660 of an FAP, the State mandated it had to be permitted to SR 528. Commissioner Pritchard stated having the trees removed so that a billboard is visible is not enhancing the drive, but is enhancing the advertisement and the money derived from it; he is not opposed to advertisement; but he is opposed to having gigantic billboards taking away from the natural beauty throughout the County. He stated there are not too many billboards that are attractive, with the exception of the ones for Ron Jons; and the particular billboard in question has so many words on it that it cannot be read without stopping to read the billboard. He stated as to the idea of removing trees so the billboard can be better seen, he is with the State on this one.

Ms. Song advised that is removing trees that should not have been planted in the first place. Commissioner Pritchard stated they are there now and look better than the billboard. Ms. Song stated she agrees, which is why they are working with the State to do an alternative so as not to have to take the trees down. Commissioner Pritchard inquired why they do not take the billboard down; with Ms. Song responding the billboard is not going anywhere. Commissioner Pritchard advised it might be hard to see for a while.

Commissioner Higgs stated on page 6 of the proposed ordinance 5(e) says that special events signs shall not be erected more than three days prior to an event; and inquired is the event defined somewhere, and could it be a one-month event. Land Development Specialist III Gwen Heller advised under the Special Event Ordinance an event can be up to 15 days, and for seasonal events, it can be as long as 30 days. Commissioner Higgs inquired if the special event sign could be up for a month; with Ms. Heller responding yes, typically for Christmas tree sales.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to move the proposed ordinance revising Article IX, Chapter 62, amending certain sections of the Code including temporary signs to the second public hearing to be held on October 2, 2003. Motion carried and ordered unanimously.

The meeting recessed at 10:02 a.m. and reconvened at 10:15 a.m.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR
HENRY AND JOANNE SAUNDERS

Chairperson Colon called for the public hearing to consider a request for determination of vested rights for Henry and Joanne Saunders.

Henry Saunders requested the item be tabled so there is a full Board.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to continue the public hearing to consider a request for determination of vested rights for Henry and Joanne Saunders to September 30, 2003. Motion carried and ordered unanimously.

Chairperson Colon stated she will make sure the item has a time certain.

PUBLIC HEARING, RE: DETERMINATION OF SUBSTANTIAL DEVIATION AND
CONSIDERATION OF NOTICE OF PROPOSED CHANGE #13 TO VIERA DRI

Chairperson Colon called for the public hearing to consider a determination of substantial deviation and consideration of Notice of Proposed Change #13 to Viera DRI.

Carey Hayo, Planner with Glatting Jackson, representing The Viera Company, stated they are requesting the 13th Change to the Viera DRI; when they prepared the application, they did it primarily for the purpose of cleaning up some miscellaneous items in the DRI that are not related to a major new employer coming to locate at Viera or to deal with the new residential community; and they are present today for the Board to find the proposed changes to the DRI to be non-substantial based on the data and analysis provided with the application. She advised the application and data that were presented have been found to be non-substantial by the East Central Florida Regional Planning Council and the Department of Community Affairs, other agencies that reviewed the application on behalf of the Department of Community Affairs, and County staff. She stated on the Viera East side they proposed to combine parcels O, P, and T, which are located at the intersection of Viera Boulevard and Murrell Road; the parcels have been designated for office and retail uses in the past; and they will continue to have that designation. She stated they propose to add some office use to this parcel, increasing it from 69,000 square feet to 211,000 square feet; they will accomplish this by moving office square footage from other parcels on the east side to parcel OPT, with a net effect of no increase in either office or retail use; and they will simply move office use from one parcel to another to accommodate the user on parcel OPT. She stated they are also proposing to transfer 327 residential units from Viera East to Viera West as the units will not be used because the tracts from which they are being transferred are built out; and they are asking to transfer these units to Parcel 3, which is the parcel that contains The Avenues project that will be starting construction soon. She stated multifamily residential use has already been approved for the parcel; there are 250 multifamily units already in the parcel that has The Avenues in it; and they are requesting to add the additional 327 units to this area because there is a developer who is interested in building some multifamily units surrounding The Avenues, which will help The Viera Company and the community realize the vision they have always had for a vibrant 24-hour a day kind of community on the west side of I-95 that has a full mix of uses that play off the Government Center. She stated the office and retail uses will start construction soon; and their request to transfer the units will not result in an increase in the total number of residential units that have already been approved for the DRI as this is merely a transfer. She stated if the transfer of units is approved through the Notice of Proposed Change (NOPC) process, they will still need to come back before the Board in a public hearing and add them into the PUD because they are not in the PUD at this time. She stated the third item involves some revisions to Map H on the west side of I-95 to update the road system to show what is actually being built; they have also changed the parcel configurations at the request of the Zoning staff to coincide with the Zoning map, so now Map H and the PUD map look very similar; and it is easy to move back and forth between the two when staff is reviewing requests. Ms. Hayo stated fourth, they are deleting references to the Veterans’ Administration that have been on Map H since 1995; the VA has notified The Viera Company that it will not be building a hospital at this site; but they are keeping the entire program on the west side that had been part of the VA. She stated they are keeping the hospital beds there; there is a hotel related to it as well as an assisted living facility (ALF) and some other uses; and they are merely renaming the quadrant a medical campus and deleting the references to the VA, other than the VA clinic that is already there. She stated they propose to relocate an existing 116-acre burrowing owl habitat from its present location outside of the DRI boundaries to another location on a larger site also outside the DRI boundaries; this proposal is based on several factors including the fact that the habitat is in close proximity to the proposed Pineda Interchange and Extension and associated future development with the Pineda; and it is also on land presently needed for sod production. She stated the DRI Development Order and the Conservation Easement for the owl habitat provide for the ability to move the owl habitat so long as certain criteria are met; and the criteria are explicitly detailed in the Development Order conditions. She advised in a non-substantial change in 1998, the Board approved a relocation of owl habitat to its current location based on the criteria contained in the Development Order; and they have obtained approval for the proposed relocation from the St. Johns River Water Management District and Florida Fish and Wildlife Conservation Commission based on a management plan they prepared for the new habitat. She noted the Regional Planning Council and DCA have found the proposed relocation to be non-substantial based on the evidence that was presented in their application; and Hassan Kamal of BSE Consultants will address the specifics of the existing and new locations and talk about the process used to come to these conclusions. She advised a representative of the St. Johns River Water Management District is also present to address the issue.

Hassan Kamal, BSE Consultants, distributed a handout; and stated just so everyone understands the history and reason why they are doing this, he will go back and touch upon the burrowing owl conservation easement, where it originated, and where it is right now. He stated back when they were doing the original development and DRI approvals, the surveys were completed for the 1,500 acres west of I-95; and they located 59 primary and secondary burrows with an associated population of 22 adults and 6 juveniles. He stated to mitigate for any potential impacts as development proceeded, they were required to designate a 116-acre area of occupied habitat as burrowing owl mitigation; and out of those survey requirements was Development Order Condition 17, which had several key components. He stated it required the establishment of a conservation easement per Florida Statutes; it required that the conservation easement be managed by the application of community development district in accordance with a management plan approved by the Florida Wildlife Commission (FWC); and it also included a provision that if the applicant chooses to provide an alternative mitigation area at an acceptable site within the project or at another offsite location, along with a conservation easement and management plan, then the applicant may release conservation easement protection of the original 116 acres on an acre-by-acre basis subject to the determination of non-substantial determination. He noted he is paraphrasing the wording, but the DO wording is included in the handout. He stated a conservation easement was established and granted to the Community Development District (CDD) in 1997; it was consistent with Florida Statute 704.06; a key component of the conservation easement was that the grantor, The Viera Company, reserve certain rights; and the easement was approved by the Game Commission. He stated those rights included the ability to improve, use, and maintain the property consistent with agricultural purposes; and it allows the right to implement and comply with the Development Order conditions in the management plan, and for the entry and enforcement of the conservation easement to Brevard County, DCA, and FWC. He stated the conservation easement language reserves the right to provide the alternative mitigation areas within the project or offsite, and allows the same opportunities and requirements that the DO Condition #17 included. He stated the easement was placed on land owned by A. Duda & Sons; the easement is there now and was granted to the CDD; it is not publicly owned lands, nor is it public access lands; and it is still ongoing as an agricultural operation, but is managed in accordance with the burrowing owl protection plan. Mr. Kamal advised the habitat consists of bahia grass; the total area once everything is factored in came out to 128.9 acres; and there were a variety of improvements done to the habitat, such as installation of perch posts, construction of small mounds to facilitate the relocation of burrowing owls, and maintenance and painting of fence posts. He stated since those were established, A. Duda & Sons and The Viera Company have been monitoring and maintaining those areas in accordance with the management plan; that has been ongoing for a little longer than five years; and a total of 24 young burrowing owls have been reared within or adjacent to the burrowing owl preserve, so the management plan has been proven to be successful. He stated consistent with the flexibility DO Condition #17 allows, they are now coming forward to relocate the conservation area; they have been working with the Water Management District and the FWC for approximately two years, reviewing alternatives and looking at different sites; and they have obtained approval from the FWC for an alternate location approximately three miles west of the current limits of the DRI on lands now owned by the Water Management District. He stated the FWC approval states the revised management plan that was submitted was deemed sufficient mitigation for a potentially adverse impact to the habitat for the Viera DRI projects, and it also approves the plans for the relocation of the mitigation area and allows for the release of the conservation easement pending approval of a non-substantial modification. He stated the Water Management District Governing Board approved the modification of the existing lease to allow the conveyance of a conservation easement to FWC; the conservation area is on lands that were part of a 1990 sale from A. Duda & Sons to the Water Management District; and it is located within 4,800 acres that are currently leased to A. Duda & Sons for cattle operations, which is an ongoing agricultural activity, with a lease term of 20 years. He stated it is not within the portion of the property the Water Management District is doing restoration in; part of the lease agreement that was entered into between Duda and the Water Management District required the District to upgrade and restore about one and one-half or one and one-quarter miles of existing levee, so there are benefits, which is one of the reasons the Water Management District is interested and supportive of the change. He stated in exchange for establishing the conservation easement and maintaining the habitat, A. Duda & Sons has waived that obligation for the Water Management District to make levee improvements, which is a huge savings of public dollars. He stated they do not have a construction estimate for that, but in his experience, it could easily range up to a quarter million dollars. He stated in addition, A. Duda & Sons is required to reduce the cattle stocking rate within the conservation area; the District will in turn convey the easement to the FWC; and A. Duda & Sons will be responsible for all maintenance and monitoring requirements associated with the burrowing owl habitat. He stated part of that agreement involves the development and approval of a management plan, which will delineate the requirements for how the conservation easement gets relocated; it will serve as a guideline and blueprint for how the burrowing owls will be managed and how the property will be maintained; and it also establishes if the existing area that is under conservation easement now has a change in management practices, such as going to sod production or some other operation that has conflicts with the burrowing owl, they will be required to get a permit from FWC. He stated it does not give them carte blanche to destroy the habitat; and it does not give any development rights on the property. He noted he included information in the package regarding existing soils and elevations indicating those areas are not subject to any greater inundation or flooding than the existing area; the soils are almost identical; and the construction of the new conservation area involves building up mounds and constructing suitable habitat.

Ms. Hayo stated there is also a representative of the St. Johns River Water Management District present. Chairperson Colon stated that would only be if the Board needs to speak to him.

Suzanne Valencia stated she heard that the area they want to switch the burrowing owl mitigation site to is scheduled to be flooded by the St. Johns River Water Management District at some point in the future. She stated several years ago Fish and Wildlife Service made a written comment that mitigation of burrowing owl habitat is not effective; and requested clarification of those two points.

Commissioner Pritchard stated he would like to hear from the St. Johns River Water Management District representative on those two issues.

Robert Christianson, representing the St. Johns River Water Management District, stated the area is not scheduled to be part of the flooded portion of the property; the District purchased approximately 14,000 acres in 1999 from the Duda Corporation; approximately 4,000 acres is under the leaseback provisions; and he will call those buffer lands. He stated they are pine woods and pasture lands; approximately a third of the remaining property will be part of an active restoration project where they are pushing over the levees and berms and allowing that to re-flood to the elevation of the river; and in the middle reach, which is the next third of the 10,000 acres, they will allow the area to fluctuate with the river. He stated the easement is outside the three portions of the restoration area in the buffer areas between the water restoration area and the Duda properties. He noted he does not work for U.S. Fish and Wildlife Service, nor for the Fish and Wildlife Conservation Commission; he has heard that relocation of owls does not work similarly to red cockaded woodpeckers; it is somewhat questionable that relocation projects can be done with fledgling burrowing owls; the issue of mitigating for any species is a very broad question; and he has not heard that one cannot mitigate for burrowing owls. He stated the Water Management District is in support of this initiative; and requested Board approval. He noted the Governing Board of the St. Johns River Water Management District voted favorably for this last month.

Commissioner Higgs inquired if it is standard procedure for the Water Management District to allow its lands to be used as mitigation by a private party, and how does it value the contribution that The Viera Company is going to make. Mr. Christianson responded he would not say it is standard, but it has been done in the past; the District has done projects in the Orlando area with red cockaded woodpeckers and private entities; it has done projects in the Jacksonville area with a private developer on adjacent properties for the gopher tortoises; and in both of those cases, there was active relocation, so there is some precedent. He stated this is not something the District should do every day; it has to be something that makes a lot of sense; and it is good for the resource and a good business decision for the Water Management District. He stated the point that drove the District primarily was that it is a good business decision; the District was facing an obligation on the order of a couple of hundred thousand dollars for enhancing the levee; and it will be relieved of that obligation, which will give it a better opportunity on the other portions of the property because that area will then be open, to the landward side of the levee, to the extreme flooding events, which is to the advantage of those properties. He stated in this case the relocation of the easement is consistent with the character of the 115 acres of lands that the Water Management District owns; it is not something the District does lightly; but there is some precedent for it. Commissioner Higgs stated there is a one-time obligation to do this reconstruction work to make it suitable habitat; and inquired does The Viera Company have to manage it in perpetuity. Mr. Christianson responded they have a five-year obligation for management practices enhancement within the 115-acre area; and the easement provides for perpetual management of the property consistent with its natural character. Commissioner Higgs inquired by whom; with Mr. Christianson responding the District will be granting the easement, and so will be taking on the obligation of managing the property, which is consistent with their charge, intent, and expected management practices for the property.

Commissioner Carlson stated as far as the items in the Notice of Proposed Change #13, she does not have any problems except for the owl relocation; and inquired if the owl issue is a substantial deviation, does that make the entire NOPC #13 substantial, or can the Board pass the other items and keep the one issue for further discussion for the potential of substantial deviation. County Attorney Scott Knox responded the way the Statute reads the Board can treat them separately.

Motion by Commissioner Carlson, to approve all items in the Viera Notice of Proposed Change #13, except the relocation of the burrowing owl habitat mitigation area.

Commissioner Higgs stated she is not sure there are substantial deviations, but does have concerns about a couple of issues; she understands the desire of The Viera Company to change the VA hospital issue; it looks like Orlando is going to get a VA hospital; and suggested the Board, outside this discussion, begin to talk to the Congressional representatives about the move to put the VA hospital in Orlando. She stated the hospital was to come to Brevard County, but the County ended up with a clinic; there is still a need for a VA hospital in Brevard County; and the Board needs to be part of that conversation. She stated as long as The Viera Company leaves the medical campus designation, there is a commitment; and if the County could get a VA hospital, it would have the opportunity to do that. Ms. Hayo advised they will preserve the entire development program there, but will call it a medical campus, taking out the term VA. Commissioner Higgs inquired if the VA changed its mind and wanted to come to Brevard County, would The Viera Company be in a position to entertain that as a location; with Ms. Hayo responding that is the case. Commissioner Higgs advised the Board needs to get the Congressional Delegation involved in the conversation for location of the hospital. She stated she is also concerned about the transfer of the multifamily units from the east to the west side; there are implications in terms of traffic and the character of the area; and she is not sure it is the right thing to do.

Commissioner Carlson stated she asked similar questions in terms of the multifamily; the traffic question came up; and staff commented there would not be an impact because with the addition of The Avenues, which is slated for next year, they will be widening the road where they want to move some of the multifamily. She stated she had similar concerns, but none that overrode the movement of the units. She stated as far as the VA issue, she is not sure if the Board wants to deal with the legislators; she is not sure how the Board would deal with it at this point; she is not sure it is enough to have a medical facility designation and not have it say VA; and requested Mr. Knox look at that and provide input. Mr. Knox stated he can look at it, but the proposed designation would allow the use. Commissioner Carlson stated that would be if the VA changed its mind and did not give the hospital to Orange County. Commissioner Higgs noted the VA has already changed twice; and recommended the Board not abandon the idea. Commissioner Carlson stated she agrees, but does not know that what the Board is going to do today will have an impact on that; and she is assuming, based on the comments from The Viera Company, that it is not going to be an issue.

Steve Johnson, representing The Viera Company, stated they met with the VA yesterday; there was a meeting last week about the CARES (Capital Assets Realignment Enhancement Services) Plan; and there was no one from Brevard County who spoke. Commissioner Carlson stated in discussions in her office, they talked about an assisted living facility (ALF) in conjunction with the clinic and keeping that in place. Mr. Johnson stated for the ALF they are going to give additional land north of the site that would more align with the roadway alignment; but there are still locations south of the stadium that could be used for a hospital; the use is still there; there are 470 beds; and the VA is talking about a 100-bed hospital in Orlando. Commissioner Carlson inquired if there was a transfer of some of those beds to a medical facility that Health Systems is putting in; with Mr. Johnson responding no, that would be the next NOPC.

Commissioner Higgs recommended the Board authorize the Chairperson to send a letter to the Congressmen and State Legislators asking them to involve themselves in the issue of the Veterans’ Hospital and whether Brevard County might be the proper place for that to be.

Commissioner Carlson inquired if Commissioner Higgs agrees to move forward on the VA issue; with Commissioner Higgs responding she still has concerns about the transfer of the multifamily and the owl issue, but will agree to the rest of them.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve all items in the Viera Notice of Proposed Change #13, except the relocation of the burrowing owl habitat mitigation area, and authorize the Chairperson to send letters to the Congressional Delegation and Legislative Delegation requesting their involvement with location of the Veterans Administration Hospital in Brevard County.

Commissioner Pritchard stated the Board is splitting hairs over the designation of medical campus or VA; and he has a lot of questions concerning the information he was given. He stated surveys were done; on one page it says 22 adults and 6 juvenile owls; later it says the survey found two pairs of owls associated with full burrows; and then later it says a total of 24 young burrowing owls have been reared within or adjacent to the burrowing owl preserve with 21 being successfully fledged. He stated there are numbers all over the place; and he is wondering how many owls there are and how many burrows there are. Hassan Kamal stated the numbers represent different monitoring events; initially before the conservation easement was established, they were required to verify that the habitat was occupied; so they went to the site and found two pairs of owls and four burrows. He advised the monitoring events are done each year; one of the measures of success is to see if the management program that was implemented has successfully attracted additional animals to the site; and the most recent monitoring event in 2002 indicated 24 burrowing owls at that location. He stated the numbers changed because they reflected different periods of time. Commissioner Pritchard inquired if they are talking about a corresponding 2.9 acres per burrow; with Mr. Kamal responding that was the basis of the calculation in 1995 that established a minimum 116 acres of mitigation area. Mr. Kamal advised that was the minimum habitat; the actual conservation easement is on 128.9 acres because it includes some additional non-burrowing owl habitat, small pocketed wetlands, and some agricultural roads; and the easement is supposed to be placed on Water Management District land acre-for-acre. Mr. Kamal stated even though they were initially required to have 116 acres, they did 128.9 acres; and the new area will be 128.9 acres. Commissioner Pritchard inquired if approvals have been received from the St. Johns River Water Management District and the Florida Fish and Wildlife Conservation Commission; with Mr. Kamal responding that is correct. Commissioner Pritchard stated he understands it is a good business decision for the St. Johns River Water Management District; he often questions the amount of acreage for a burrow; it was 24 acres for two scrub jays and 2.9 acres for a couple of owls; there are people stacked in condos; but a tremendous amount of land is found for the winged populations. He stated the cost saving to the St. Johns River Water Management District would be $100,000 to $250,000 for the levee; and he assumes someone is absorbing that cost. Mr. Kamal stated it is not an absorption of cost; it is a benefit back to the Water Management District because the cost estimate is based upon removing a contractual obligation the District currently has under the Duda lease to make certain upgrades, so nobody will be paying as the work will not be done because Duda has agreed it is not necessary. Commissioner Pritchard inquired if Duda is going to have a financial impact in this endeavor by reducing the stocking rate of cattle and maintenance and monitoring requirements; with Mr. Kamal responding that is correct. Commissioner Pritchard inquired what the dollar value would be; with Mr. Kamal responding he does not have an exact count on the impact of the cattle; the management plan required initial payment to FWC of $25,000; Duda has spent, in the two years they have been working on this, a considerable amount of money with consultants and environmental specialists; and the initial construction is not a huge amount, probably $30,000 to $40,000. Commissioner Pritchard inquired if that is for artificial habitat; with Mr. Kamal responding that is all part of the required management plan. Commissioner Pritchard inquired if they seek out orphaned or rehabilitated burrowing owls; with Mr. Kamal responding that would be part of the management plan; and it is a requirement that Duda and FWC will cooperate in seeking those on adjacent lands or other locations the FWC may be aware of. Commissioner Pritchard inquired if anyone at the State level has any understanding that there are people who do not get decent food or have decent housing, but that thousands of dollars are being spent on programs like this; with Mr. Kamal responding they have not had that level of discussion with FWC; and their efforts have been focused on trying to meet the Development Order conditions and satisfy all the rules and regulations that have been placed on this issue. Commissioner Pritchard stated he cannot believe the amount of money they are talking about for some of the things they are talking about; but since the St. Johns River Water Management District and Fish and Wildlife think the item should be approved and included in the DRI, he does not see any reason to exclude it. He stated what is being done is a tremendous and perhaps unnecessary expense; later the Board will be talking about an eagle’s nest; and inquired how the Board became the policing authority for what is going on with birds. He stated the burrowing owl element needs to be included with the rest; and the Board should pass it all.

Commissioner Carlson stated her motion was to move forward on all items in the NOPC except the owl issue, which she would like to put on hold so they will have an opportunity to go through all the material that was given to them today. She stated her key issue is the designation of public property since it is a species of special concern; it is in the public domain and the public trust through the agencies that deliberate on the laws; she is concerned that there is an existing piece of property that has been successful at producing and protecting the owls, and now they are going to a piece of property that has no known owls on it; and they are hoping to improve the property so owls will come. She stated she would like to see all the details before making a decision.

Motion by Commissioner Carlson, to approve all items in the Viera Notice of Proposed Change #13, except the relocation of burrowing owls.

Commissioner Pritchard stated he does not see any reason to postpone this; the Board has the information; it has been approved by the others; the burrowing owl has already moved one time and will again; the new area is attractive; and he does not see why it should not be incorporated as part of the St. Johns River Water Management District business plan.

Ms. Hayo advised if the Board separates it out, to either consider further in another hearing whether the burrowing owl is substantial or not or making it go through the substantial deviation process, the holder of the easement right now is the CDD; there is a petition to dissolve the CDD; so there is an issue as to who would hold the easement in the interim. She stated they would like the ability to consider having the master community association hold the easement in the interim so they can proceed with dissolving the CDD and allowing Heritage Isle to establish its CDD, which is also going to be in the process.

Commissioner Carlson stated that does add a level of complexity that she was not aware of; it makes it more important to put a hold on some of the things that deal with the burrowing owl issue; and she does not know how that affects anything else she requested. She inquired if there is a problem with moving the other items; and noted there is no second to her motion yet.

Commissioner Higgs stated if Commissioner Carlson would amend the motion to pull out the transfer of the multifamily and the burrowing owls, she would support the motion; and then the Board could deal with those issues separately.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve all items in the Viera Notice of Proposed Change #13, except the relocation of burrowing owls and the transfer of multifamily from the east to the west. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Higgs stated on the owl issue, whether it is a substantial deviation or not is less important than the issue of a public entity’s land being used for the mitigation of private impact; and while she appreciates it may be a good business decisions, she does not think that is what public lands are supposed to be used for. She stated she objected when it was done at Tosahatchee and objects now; private mitigation should be a matter that the private entity deals with; and that is where she has a problem with the item. She stated there is some logic in it not being a substantial deviation; it is ultimately the decision of the Board to accept or not accept it as part of the DRI; and she does not believe that is how mitigation is supposed to be handled.

Commissioner Carlson stated in looking at long-term mitigation, one does not purchase property and then raise a species in hopes of prolonging the life expectancy of the species for future generations; it does not make sense; and she would like to get some legal perspective on that from the public and private perspective as far as how to treat that. She commented on using land in the public trust for private sector mitigation, trading to a public entity, private sector economic gain, opening the area for development, and greater economic benefit by those in ownership of the conservation easement. She stated this requires additional study; and she would like to get a better handle on it as well as pursuing the legal perspective.

Chairperson Colon requested clarification of what has been approved today; with Commissioner Carlson responding all items in the NOPC except the multifamily and owl issues. Commissioner Higgs stated the majority of the Board may be in favor of the transfer issue. Commissioner Carlson stated she does not have a problem reviewing and allowing Commissioner Higgs to look at that; Commissioner Scarborough would probably like to have some input on the issue; and it would be wise to allow him to do that. Commissioner Higgs stated she is ready to deny it; she has reviewed it and that is her position; and she is not asking to table that.

Commissioner Pritchard inquired what better use of public land if not to mitigate species and what purpose does it serve; and advised most of the land designated as public land is inaccessible. He stated it is not a question of private sector gain; it is everyone’s gain; the Board should not be taking any more property off the tax roll; it is faced with budget deficits; and the Board needs to start taking less property off the tax roll and managing the property it has better instead of continuously adding more to the public land and public trust, when most of the land and little of the trust is accessible.

Chairperson Colon inquired if Commissioner Carlson wants to move forward with the transfer; and advised she would support such motion. Commissioner Carlson stated there are not the votes to do that; and she would prefer to leave the motion as it stands and bring it back individually so the entire Board can look at it. She stated this is controversial; and all the Commissioners should be present with their own justification on why it should or should not go through the deviation process.

Chairperson Colon stated the multifamily, burrowing owl, and St. Johns River Water Management District are the issues she had questions about; and this is not just about Viera, but about the kinds of decisions the Board is going to make.

Mr. Knox advised what the Board is to determine today is whether or not there is going to be further DRI review of any of the issues that have come before it; so far the Board voted not to do that on at least three items; and the Board needs to decide if it wants to postpone for further DRI review or just continue the public hearing to determine the issue again at a future date.

Commissioner Higgs stated the Board wants to continue the two items to another public hearing.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to October 7, 2003 Board of County Commissioners meeting to consider the portions of NOPC #13 dealing with transfer of multifamily and burrowing owls. Motion carried and ordered; Commissioner Pritchard voted nay.

CITIZEN REQUEST - R. B. MORGAN, RE: SUPPORTING LEGISLATIVE INITIATIVE TO
PROVIDE AUTOMATED EXTERNAL DEFIBRILLATORS IN NURSING HOMES

Chairperson Colon stated Mr. Morgan is requesting support of the Board for a legislative initiative to provide automated external defibrillators in nursing homes; the item is going to take a while for discussion; and Mr. Morgan may prefer for the Board to look at it and take care of it now. She stated otherwise there may be a very long wait; but if Mr. Morgan prefers to wait and have everyone speak, that is fine. She read aloud a proposed letter as follows: “To whom it may concern. The Brevard County Board of County Commissioners is pleased to support the State legislative initiative to encourage automated external defibrillators in nursing homes under the guidance and direction of the Department of Elder Affairs. The nursing home quality improvement proposal was submitted to the Brevard State Legislative Delegation on December 4, 2002 by Mr. Morgan and is endorsed by the American Heart Association, the American Red Cross, the Sheriff’s Office, the Medical Director of Brevard County, Fire/Rescue, etc. The Board of County Commissioners fully endorses the utilization of lifesaving equipment to improve the health care of our Brevard residents.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute a letter of support for the legislative initiate to provide automated external defibrillators in nursing homes. Motion carried and ordered unanimously.

Chairperson Colon stated the letter has been approved.

R. B. Morgan stated he arranged for the American Red Cross, the Sheriff’s Office, and Dr. McPherson, the County Medical Director to give brief presentations on where they stand on the efforts for lifesaving equipment, public education, and training.

Chairperson Colon stated there are at least two more time certain items, so it will be later in the afternoon before the Board can hear the presentations; and the letter has been approved. Mr. Morgan thanked the Board. Chairperson Colon provided the letter to Mr. Morgan. Mr. Morgan stated the legislation is currently in bill drafting in the House of Representatives, sponsored by Representative Bob Allen; it authorizes a pilot program for Brevard County under the Department of Elder Affairs; upon completion of the pilot, the program would be expanded Statewide; and no County funding or local legislation would be required to implement the plan.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SAWGRASS SOUTH
AT SUNTREE

Lynda White, Eagle Watch Coordinator for Audubon of Florida, stated this is her third appearance before the Board attempting to convince the Board to adopt a County bald eagle management plan; the County currently has 58 recorded bald eagle nests with over 30 of them listed as active territories in the past two years; and while some of the nests are located in the Merritt Island National Wildlife Refuge and similar protected areas, others are in the middle of subdivisions or on land slated for future construction. She stated with this many nests and an increasing eagle population and more development throughout the County, conflicts between eagles and humans are going to increase; and many County citizens are outraged that the County seems to place so little value on the resident eagles. She stated she has received many calls and emails asking for help to convince the Commission to protect these birds; she has also been called a traitor for not chaining herself to the nearest eagle nest tree; but she is a realist and knows the days when development could be halted because of the presence of eagles is long gone. She stated she hopes to convince county governments that reasonable solutions can be achieved. She advised the main thing an eagle needs is enough room to hunt for food and raise its young; since nest territories are only used during the four to five months needed to hatch eggs and rear the young to fledglings, construction can occur during the non-nesting season; and the concession from the developers would be a reasonable management zone around the nest sites that would remain undisturbed. She stated construction could occur while the birds are absent during the summer months and resume as soon as the eagles fledge the nest. She stated the U.S. Fish and Wildlife Service has the ultimate authority when deciding the fate of bald eagles; but the public has grown increasingly dissatisfied with the management zones approved by U.S. Fish and Wildlife Service and the issuance of a take as in BE-17B. She stated allowing development to cause the probable abandonment of a nest territory is not acceptable to many of the citizens; and requested the Board adopt a bald eagle management plan that would have to be adhered to by developers before they can apply to the Fish and Wildlife Service. She stated she has provided a copy of a plan adopted by St. Johns County; and urged the Board to use it as a model. She stated the Board has the chance to show the citizens of Brevard County that it realizes how fortunate it is to be the home of a healthy increasing population of bald eagles and that it appreciates and treasures these birds as not only a symbol for America, but as a sentinel species for determining the health of Brevard County’s environment. She stated Commissioner Pritchard expressed concern about people stacked up in condos; but people have more choices about where they are going to live; these birds have picked a place to live; and it is everyone’s responsibility as stewards of the environment to take care of these creatures.

Chairperson Colon explained the time limits for addressing the Board.

Attorney James Fallace, representing Sawgrass Development, stated the development is known as Sawgrass South at Suntree; and they are requesting final engineering and preliminary plat approval. He stated this matter has been pending before the Board for some time; the application was filed on December 18, 2000; and the last meeting on this was July 22, 2003. He stated a number of questions were raised and a letter was directed by the Commission to Fish and Wildlife Service, which responded on August 19, 2003; and staff has reaffirmed its recommendation that Sawgrass Development’s request for engineering and preliminary plat approval be approved by the Board. He stated he read through staff’s recommendations; they are very thorough; and what the Board will hear today is not really the issue as this is not a war involving the bald eagle. He stated he will refer some of his rebuttal to one of the State’s leading experts on bald eagles, Steve Godley, president of Biological Research Associates; Mr. Godley has been involved in 30 bald eagle management plans in the State; he wrote the Bald Eagle Monitoring Guidelines, which are published on the Fish and Wildlife Service website; and he is recognized as an expert by Fish and Wildlife Service. He stated Mr. Godley will clarify a lot of misunderstandings of the public, which is asking the Board to enact a new regulation. Mr. Fallace advised that is not what is before the Board today; what is before the Board is the preliminary plat approval and final engineering approval; and he is sure the Board members have read the response from Fish and Wildlife Service that reemphasizes that on June 16, 2003, it issued a no jeopardy biological opinion with respect to the bald eagle. He stated Mr. Godley will address the bald eagle questions; staff has agreed with Fish and Wildlife Service that there is no jeopardy to the bald eagle; there is a chance the eagle may not return to the nest at 17B and may return to another nest, 17A; but this is not the primary issue. He stated the issue has been addressed in the memorandum by staff; it outlines all the points; and they are asking for approval. He stated the other item is the first in the staff’s answer, which is the extension of Brisbane; and it is their position that having the turn-around area for Brisbane would eliminate and reduce any disturbance for the bald eagle, if he does return to the area.

Edward Lopez, Vice President of the Suntree Master Homeowners Association Board of Directors, stated at the July 22, 2003 meeting, president Robert Collins read his statement expressing several concerns; but Mr. Collins is unable to address the Board today due to business commitments. He stated the schematic drawing should be amended to accurately depict the terminus of St. Andrews Boulevard at its present location to eliminate any possible inference that this connection has been pre-approved; and it is up to the Board to direct this change be effectuated. He stated Brisbane Boulevard is shown to extend 67 feet beyond Millstone to allow for an asphalt area for a vehicle turnaround; but this extension is not necessary for the construction of the proposed development; and inquired why is it part of the proposal. He stated the map shows a sidewalk along the 67-foot road extension; a turnaround of any length does not require a sidewalk; and 337 homes were built at Sawgrass at Suntree without such an extension. He stated the only apparent reason for this extension is to convey the impression of a roadway connection; and he hopes their concerns as well as those of others can be ameliorated before the Board grants final engineering and plat approval to Sawgrass South at Suntree.

Edward Slaney stated part of the U.S. Fish and Wildlife Service’s purpose is to serve as the principal agency responsible for conserving, protecting, and enhancing fish, wildlife, and plants in their habitat for the continuing benefit of the American people; and inquired what is the world thinking in allowing one of the most powerful symbols of the country to be taken and killed. He stated the Board must not let this happen; the primary and secondary zones are protection zones; and U.S. Fish and Wildlife Services rules are contradictory to the body’s responsibilities. He stated no one knows yet what these particular eagles will do; and he hopes the Board will do whatever is in its power to protect them. He stated the notion of an incidental take permit in this area is unconscionable; and there is a clear need to form an ordinance restricting further intrusion into eagle nest zones.

Maureen Rupe, representing the League of Women Voters of the Space Coast, stated Brevard County Comprehensive Plan Objective 9 says, “protect endangered and threatened wildlife species and species of special concern from adverse impacts due to loss of crucial habitat”; specifically Comprehensive Plan Policy 9.2(c) states, “if the endangered or threatened species or species of special concern is found onsite or there is evidence that the species is onsite, a copy of all permitting documentation required by State or federal agencies shall be provided by the project owner to the Office of Natural Resources. Approval by the Office of Natural Resources Management is required prior to the issuance of a building or construction permit”; and inquired if the Office of Natural Resources approved a building or construction permit to the expanded plans. She stated granting a site plan without adequate conditions to protect threatened and endangered species would be an error by the Board; according to the Comprehensive Plan, the Office of Natural Resources Management must fully agree that the building or construction permit protects endangered and threatened wildlife species; and court rulings have consistently held that governments must comply with comprehensive plans. She stated whether or not there is an ordinance, the Comprehensive Plan takes precedence and overrules any ordinance if there is a conflict; and the Board must comply with the Comprehensive Plan requirements regardless of any ordinance, rule, administrative action, or policy statement; and requested the Board do its duty to follow the Comprehensive Plan to protect the eagle. She read a letter from her husband Robert R. Rupe, Jr. as follows: “Dear Commissioners, I was active duty military from 1972 to 1996 in the United States Air Force, and I’m appalled that I have to write a letter to you to protect the American eagle within our County. There should be protection already in place at the national, State, and the County level to insure the American bald eagle thrives within our borders forever by insuring eagle protection guidelines are mandatory requirements. I would not have believed it if I had not read the U.S. Fish and Game’s report that not only is the 750-foot buffer not being enforced but a road is being allowed to be constructed within 100 feet of the nest. Does the almighty (unclear) dollar have that deep an influence on our government in today’s economy? To me it is paramount to burning the flag. I feel the United States government has failed us. The Florida State has failed us, and I’m asking you, our Brevard County government, not to fail us. Please do not allow this to happen.”

Priscilla Griffith, speaking on behalf of the Partnership for a Sustainable Future, Inc., requested the Board provide protection for the American bald eagle in the County by carrying out the Comprehensive Plan and passing an ordinance protecting the eagles.

Amy Tidd stated she is speaking as a veteran of the country’s Armed Forces, and furthers what Bob Rupe has said. She requested the Board protect the national symbol by not allowing the road cul-de-sac to be built; stated the developers have agreed not to develop lots eight through twelve; and if they do not develop the cul-de-sac road, it will keep development further from the eagle. She stated if they develop the project later, they can develop the road at that time; and requested the Board protect the eagle.

Lidia Lynch, member of Citizens for Responsible Growth, stated the group supports the comments made by the Suntree Master Homeowners Association, other organizations, and the citizens who have spoken in an effort to protect the national bird. She stated at the July 22, 2003 meeting, the president of the Suntree Master Homeowners Association requested clarification as to why Brisbane Boulevard is extended past Millstone Drive; and one of the responses from staff quoted County Code Section 62-2956, “Where a street is to be temporarily terminated at the property line and is to be continued when adjacent property is subdivided, either a temporary turnaround having an outside diameter of 70 feet or a key type turnaround will be provided.” She stated the language does not apply in this case; there is no adjacent property to be subdivided so there is no determination about continuation of Brisbane Boulevard; and continuation would not be considered until after the I-95 interchange is completed. She stated the schematic drawing submitted by the applicant does not show either a cul-de-sac or a key-type turnaround as referred to in the cited Code; and an intersection of Brisbane Boulevard and Millstone Drive offers as much, if not more, turnaround space than the continuation of Brisbane Boulevard does. She stated today’s agenda package says Millstone Drive is to be a private road and the turnaround is needed on Brisbane Boulevard; nowhere in the document could they find that is stated an extension of a public road is required for a turnaround; and there is no indication that Millstone Drive is to be gated. She suggested the turnaround be the widest point of the road when it connects to the private Millstone Drive. She stated County Code, Section 62-2956, paragraph 8, Access Management, states, “The public or private streets shall be designed to minimize disruption to through traffic and optimize public safety”; but there is no through traffic in this case so that Section does not apply. She stated despite the Board’s August 13, 2002 action setting aside any consideration of connection between St. Andrews Boulevard and the Pineda Extension, this extension of the road is misleading regarding its eventual fate and gives the appearance of a connection. She requested the Board have Brisbane Boulevard end at Millstone Drive; and noted the eagles are back in the nest.

Frank Rockwell, president of the St. Andrews Isle Homeowners Association, stated he provided the Board with a handout of his presentation and a copy of the presentation he made on July 22. He stated the residents of St. Andrews Isle do not have an issue with the Board’s approval of the final engineering plan and preliminary plat for Sawgrass South, Phase 2, provided the BE17B eagle’s nest and habitat are adequately protected. He stated in addition to the eagle nest protection, they have private property impact issues with Sawgrass South, Phase 1, Millstone Drive; and requested the Board deny both until the developer’s plans provide for a buffer that substantially impedes access to their private property, especially the lake. He stated they contend that the developer’s current plans are injurious to St. Andrews Isle because of the developer’s unwillingness to mitigate their resulting increased lake liability risk, that the developer is selfishly enhancing the value of his property at their expense, and that by not requiring the adequate mitigation of their increased lake liability risks, the County is accepting partial responsibility for any future negative consequences. He stated since the July 22 Board meeting, there have been numerous community discussions concerning Commissioner Pritchard’s suggestion to negotiate some sort of a lake sharing agreement with the Sawgrass residents; and the consensus is that would be untenable to accomplish with so many potential homeowners, and would be unacceptable from both liability and security perspectives. He stated the Sawgrass developer needs to understand that lacking adequate buffering, St. Andrews Isle will take unilateral steps to protect the integrity of its private property; and it will be clearly evident to potential purchasers of the Sawgrass lots adjoining St. Andrews Isle that they are not purchasing lakefront lots, but rather obstructed lakeview lots. Mr. Rockwell advised there is still no visible legally binding assurances that Wetland A will be preserved as is currently proposed.

Jim Egan, Executive Director of the Marine Resources Council, stated the Council does not have any specific issues that apply to the siting of this particular property; and its issues are more the bigger perspective that the issue brings up, meaning the 70 species of rare and listed species in the Indian River Lagoon region. He stated the lack of a bald eagle management plan is just a symptom of a larger problem; the Comprehensive Plan stresses that the County needs to protect the habitat of the listed species; but there is no ordinance to facilitate that. He stated later the Board will be discussing the SEA ordinance, which could potentially help; but having specific ordinances to protect the resources is the key. He stated there are a lot of guidelines for the eagles given by the U.S. Fish and Wildlife Service, which are pretty much followed; but that does not have to be the case; and more and more the federal government is walking away from certain responsibilities, which makes it even more important for the County to look at the level of ordinances it has and whether they properly support the Comprehensive Plan. He advised there have been some recent court decisions that have shown when a county commission acts on either an ordinance or acts for lack of an ordinance on an issue to approve a development, and that proves to be in conflict with the Comprehensive Plan, the courts have gone so far as to actually require the landowner to remove the buildings. He stated in Martin County, even though the County Commission approved a building construction, when it was found legally that it was in conflict with the Comprehensive Plan, the courts required the landowner to remove the buildings; so the County needs clearly defined ordinances that spell out the issues such as when development is appropriate and when it is not and the conditions. He stated it would be helpful to the aims of the Comprehensive Plan as well as to the future protection of the property owners themselves.

Commissioner Carlson inquired if in Martin County there was a Comprehensive Plan that stated certain things, but no ordinance to back up the Comprehensive Plan; with Mr. Egan responding specifically it had to do with a case in which the Comprehensive Plan called for a buffering between different types of uses such as single-family next to a high-density development; the applicant appeared before the Commission claiming his development was appropriate and would work; the Commission did not have clear criteria to say what the applicant was saying was true or not true in terms of the ordinances; but the Commission felt it was fine to let the applicant do what he wanted as they were encouraging that type of economic development in the area. He stated unfortunately the Comprehensive Plan had spelled out enough that the ultimate result of the development was a conflict with the land use next to it; so even though the County Commission thought it was within its power to grant the landowner the opportunity to approve the plan and move forward with construction, the court decided the development was inconsistent with the Comprehensive Plan and ordered the developer to remove the buildings.

Mary Sphar stated with the Sawgrass South development, the County finds itself in a dilemma from a legal point of view; and the County needs to search for a legal position that is defensible and furthers the objectives of the Comprehensive Plan, especially Objective 9 of the Conservation Element, which says, “protect endangered and threatened wildlife species and species of special concern from adverse impacts due to loss of crucial habitat.” She stated in his September 5 memorandum, the County Attorney said that Comprehensive Plan policies that look good on paper are toothless; the wildlife policies have not in the past been applied as regulatory measures; and they may not be used to regulate or restrict the development of Sawgrass South. She suggested the County Attorney consider whether the Sawgrass South development is consistent with the Comprehensive Plan; and stated Section 163.3194, F.S. mandates that development be consistent with comprehensive plans. She stated consistency is defined as, “a development approved or undertaken by a local government shall be consistent with the Comprehensive Plan if the land uses, densities, or intensities, capacities or size, timing and other aspects of the development are compatible with and further the objectives, policies, land uses, and densities or intensities in the Comprehensive Plan, and if it meets all other criteria enumerated by the local government.” She requested the Board ask the County Attorney if Sawgrass South development meets the statutory definition of consistency with the Comprehensive Plan, if the aspects of development are compatible with the Comprehensive Plan, and if the development furthers the objectives, policies, and land uses of the Plan. She stated there is something wrong here; and the Board needs to consider the big picture. She stated the goals and objectives of the Comprehensive Plan’s Conservation Element are designed to protect natural resources including threatened wildlife; the development plan before the Board will result in the take of the bald eagle; and inquired if the development can possibly be consistent with the Comprehensive Plan as required by State law.

Edwina Davis stated the people who come before the Board because of the Sawgrass issue have active lives and other things to do, but they come before the Board because they see a pattern. She stated she lives on the beachside; she remembers when there were scrub jays in her yard; but now there are no scrub jays on the beachside. She stated wildlife is continually pushed to the west; now burrowing owls are being pushed into the St. Johns River; there are eagles’ nests that are endangered; and inquired how much farther west can the wildlife be pushed. She stated she passed Eagle’s Nest in Suntree today; but she is sure there is no eagle’s nest in that subdivision. She stated in Saturday’s newspaper there was an advertisement for the Summit at Sawgrass at Suntree claiming it is nestled in a lakeside or preserved setting that is gracious enough to leave local birds and wildlife in undisturbed tranquility; she is concerned whether the eagles that are being threatened are going to be living in undisturbed tranquility; and she hopes there is a vision for the future. She stated the vision for the future cannot exclude wildlife and their habitat; and she is concerned the County is leaving a bad record for future residents of Brevard County.

Suzanne Valencia stated she is agreement with the previous speakers; it is a shame that the protection of wildlife has to depend on the whims of politics, which is what she is seeing; and Fish and Wildlife Service has rules and regulations that it is not following.

Mr. Fallace stated he has heard comments that the plan involves killing the bald eagle, not being concerned about the bald eagle nest, and destroying and disrupting; but Mr. Godley will
explain that is not the case. He stated Fish and Wildlife Service has thoroughly examined and addressed this issue; County staff has done the same; and his client has exceeded the requirements of law that can be imposed under three federal statutes and applicable regulations. He stated the Board will see when Mr. Godley makes his presentation that all the predictions of what is going to happen to the bald eagle is speculation at best and there is going to be no killing or disruption of bald eagles. He stated this is no different than when the Board approved the Pineda Extension and decided to opt for preserving what the County called pristine wetlands and moving the road closer to nest BE-17A. He stated with respect to St. Andrews Isle and the lake, there are perceived misconceptions; there has been an unsupported, unsubstantiated statement that allowing the approval of the preliminary plat will increase the risk to St. Andrews Isle; but this is no different than the abutting subdivision to the north that was approved by the Board, which is Suntree Estates. He stated there is no proof of increased risk; and there is no risk different than the general public visiting and driving through the roads, seeing the lake or using the lake on their property. He stated they are required to protect for that risk with adequate insurance and safeguards; his client is required to do the same thing; and it is not a viable reason to deny the preliminary permit. He stated he saw the drawing of the preliminary plat saying they should not have the turnaround and the 67-foot extension; but that is inconsistent with the goal to protect the bald eagle in terms of nest 17B. He inquired if the desire is to eliminate the turnaround and have people go down the road where they are trying to minimize the disturbance of the nest, which may exist past this approval; and requested the entire preliminary plat be approved. He noted the statement was made that the Board is faced with legal inconsistency; staff as part of the preliminary investigation made the determination that the preliminary plat is consistent with the Comprehensive Plan; and it is misleading to come before the Board and ask for this to be tabled and not have a decision today. He stated this item has been pending since December 18 of the year 2000; it is time to make a decision one way or the other; and the proper decision is to follow staff’s recommendation to approve the preliminary plat. He requested Mr. Godley be given a few moments to dispel some of the misconceptions about the bald eagle.

Steve Godley, president of Biological Research Associates, an environmental consulting firm, stated he has been an environmental consultant for almost 30s; almost all of his private practice is with endangered and threatened species; and he has done a number of management plans for burrowing owls and other species as well as over 30 bald eagle management plans across the State. He stated he was the primary author of the Bald Eagle Monitoring Guidelines that are on the Fish and Wildlife Service website, and which all of the Service’s biologists have to follow. He stated the reason he drafted those is because he has served on the Bald Eagle Recovery Team for the southeastern United States since 1997; he was appointed there by the Service; and the purpose of the team was to evaluate what to do in the next phase as the bald eagle is de-listed. He stated in the early 1980’s there were only 350 pairs in the State of Florida; and last nest season there were over 1,200 pairs, so it is increasing approximately 11% per year. He stated an outstanding job has been done with the eagle, both in the State as well as nationally. He stated one focal issue is whether the Service acted appropriately in issuing an incidental take statement as part of its biological opinion on the partial nest BE-17B; and the second is what is likely to happen in the future year with this particular territory and birds. He stated he has been to the site and looked at both of the nests; and he has a good understanding of the pair in terms of what they are doing. He stated the original nest was taken over by great horned owls at the end of the last nesting season; great horned owls are the Saddam Hussein of the eagle world; they overpower bald eagles, red-tailed hawks, or red-shouldered hawks, take over the nest, and lay eggs there; they never build their own nest; and they are bullies, responsible for the abandonment of more eagle nests in the State of Florida than any other species including man. He stated in the 1950’s C. L. Broley estimated that 44% of all abandonment of eagles’ nests were a direct result of the owls; and this particular case, what happened according to all records, is that the owls took over BE-17A late in the nesting season of last year. He stated the eagles had most likely not laid an egg yet; it was relatively late in the season; and because they could not kick the owls out, the eagles built a partial nest approximately 2,000 feet away near the other subdivision. He stated he had a number of cases identical to this in which owls took over late in the season and the bald eagles attempted to build a partial nest; they build the partial nest largely because their hormones are still up to come level, but they are unable to go through the reproductive cycle because it is too late in terms of the cycle and they are unable to successfully nest. He stated it is his expectation that the birds are not going to use that particular nest this year; they will probably return to the primary nest; but it is possible they could build the secondary nest and nest there, which is why the Service issued an incidental take statement on the partial nest. He stated that was done to protect everybody against the remote possibility the birds will continue to build the nest this year and nest there, so it was an appropriate action on the part of the Service. He stated the Board has heard a lot of comments about the eagles being taken or killed or that it will result in the abandonment of the territory; but he does not believe that is the case. He stated this is a pair of birds well acclimated to people; the first nest is within 400 feet; the partial nest is only 150 feet away; there is a large number of territories on cellular towers; and he has one a third of a mile from his office building, in the backyard of a four-unit structure. He stated he had discussions with the property owner; and his biggest problem was catfish bones getting stuck in his feet when he is mowing the lawn. He advised eagles are adapting and acclimating to humans; they need some amount of space; but in this particular case, the birds are not going to abandon and the actions of the Service and the County are correct.

Commissioner Carlson stated when a great horned owl chases the eagle out, the eagle may go back to the nest; and inquired what happens to the owl. Mr. Godley stated a number of things could happen; typically the great horned owls do not remain at a nest for very many years; and described a situation in Lee County, where a territory has been in existence since 1978. He stated owls have occupied that nested tree on three different occasions over the 30-year period; and the eagles always came back to the same tree. He stated in nest 17-A, the original nest is to the point that they had to build a new nest on top of other branches because the nest was so large; in the Bonita Bay case, the owls actually nested in the bottom nest, which prevented the eagles from returning, and they built two partial nests. He stated in that case the Service recommended cutting the partial nest trees down in the non-nesting season, but they did not do that; and they constructed an artificial owl nest in the original primary zone, the owls returned and used the artificial nest, and the eagles returned, leaving everyone happy. Commissioner Carlson inquired has there ever been a challenge to the issue where the partial nest of the eagle has been driven out by the owl on a piece of property that was in the process of being developed. Mr. Godley responded it happened a couple of times; and one was the case he mentioned in Bonita Bay. He stated in that particular case the Service issued an opinion that the partial nest was not protected under the ESA because no egg had ever been laid in the nest; the Act prohibits direct killing or harm; and that has to be shown through actual injury or death of either an egg, young, or adult bird. He stated in another case in St. Augustine, a developer cut down a tree that had a partial nest; it was under construction; and he was called in before the grand jury where he explained the law and biology behind it, and the jury decided not to prosecute. He stated in that case the birds built another nest, laid eggs, and were successful; and in this case, he thinks the birds are going to go back where they were pretty soon. He noted the birds are not on the nest; and advised of his inspection of the trees.

Chairperson Colon requested Ms. White advised what she heard from an expert. Lynda White advised she spoke with John White who is the Florida Fish and Wildlife Conservation Commission biologist responsible for Brevard County nests; he said that although Mr. Godley called BE-17B a partial nest, the birds did make a real attempt to build a second nest after the owls chased them out; and he recorded this as an active nest even though the birds were not successful, which is often the case. She stated Mr. White also said it is not a great tree; it does not have a good support structure; and the best anyone can hope for is that the birds will go back to the original tree and boot the owls out if they show up this year. She stated it is speculation; the Board should not gamble on these birds; and it should allow them a couple of years to see what is going to happen.

Commissioner Higgs inquired what Ms. White means by giving them a couple of years; with Ms. White responding they moved to 17-B for part of last season; and the Board should give them a season or two to see what happens; but she does not know if that is feasible or not. Commissioner Higgs inquired if Ms. White means to give them more space; with Ms. White responding she is referring to giving them time to see if they are going to use the tree as an alternate nest site. Ms. White advised nesting season is starting now; October 1 through May 15 is the official nesting season in Florida; the birds will be coming back to the nest in the next few weeks and will be getting reacquainted; and they will be spending more and more time at the nest. She stated she would like to see them given the chance to decide which nest they are going to use this season. Commissioner Higgs inquired what does that mean, does it mean no development, or development on the first ten lots; with Ms. White responding she is not sure as she is not knowledgeable about the whole development.

Commissioner Carlson stated there are a lot of issues and the Board can go through them one by one; staff has made comments regarding all the issues that the Citizens for Responsible Growth and the Suntree Master brought up; what captured her attention was the contradictory nature of the agencies; and she is not sure what to think. She inquired if they should outright deny the development of the property to see what the eagle can do, and if the eagle stays, it can deal with it then and see what the agencies say; and if the eagle leaves and takes back its previous nest, is everything fine. Commissioner Carlson stated she would like to hear input from the Board.

Commissioner Pritchard stated there is a desire to hold up development of this area to see whether the eagles will come back to the tree; and the issues are to not connect St. Andrews to Brisbane, to stop the development, to keep others from the lake, and to develop a save the eagle ordinance. He stated the eagle is being used as a surrogate; it is not based on anything because U.S. Fish and Wildlife Service has decided in its determination that it would be an appropriate take; and this is just an attempt to use the eagles to handle all of the other issues with little to do with the protection of eagles whose population is thriving. He stated in the 1980’s there were 358 pairs, and not there are 1,200 pairs; they have an 11% growth ratio; human population is around 3% growth rate; and the Board should move the item and let Sawgrass move forward.

Commissioner Higgs inquired is wetland A preserved; with Office of Natural Resources Director Conrad White responded the current County Ordinance stipulates what the development criteria would be within wetlands; and currently there is a restriction of one unit per five acres. Commissioner Higgs inquired if there is no absolute that wetland A is preserved and if that is what she sees on the map as Tract A. Land Development Specialist III Gwen Heller advised Tract A is a retention area. Commissioner Higgs inquired if wetland A is not shown on the map; with Ms. Heller responding it is not. Commissioner Higgs stated there is no assurance that wetland A will be preserved beyond what is required in one unit per five acres; and inquired if the Comprehensive Plan requires sufficient uplands in a wetland. Ed Washburn, Permitting and Enforcement Director, stated he is not sure what Commissioner Higgs is talking about as wetland A. Mr. Rockwell stated it is designated in Tract C as wetland A. Mr. Washburn advised it looks like either Tract L or C. Commissioner Higgs inquired is there something that formalizes the preservation of Tract C or L ; with Mr. Washburn responding the applicant can respond to what it states on the plat. Mr. Fallace stated it is part of a conservation easement and intended to be preserved. Commissioner Higgs inquired if Mr. Fallace is representing that Tract L will be preserved; with Mr. Evans responding on Lot 10, there is a portion being mitigated offsite, so the entire wetland is not being preserved; the balance that is outside the lot lines identified on the map is being preserved, and it will be a part of the conservation easement as part of the St. Johns River Water Management District permit. Commissioner Higgs inquired how many acres are being mitigated offsite; with Mr. Evans responding he does not know the exact acreage; it is buying into a mitigation bank; and he does not know the exact number, but it is over an acre. An unidentified speaker advised it is four acres offsite.

Commissioner Carlson inquired if the Office of Natural Resources Management has reviewed this for compatibility with the Comprehensive Plan. Mr. White advised staff reviewed the Comprehensive Plan, in particular 9.2.e, which stipulates that before Natural Resources releases the building permit or allows the building permit to be released, it needs to receive all applicable federal and State permits for the action. Commissioner Carlson stated it is ironic; when she first came on the Board, the Board reviewed the entire Comprehensive Plan for issues that has not been executed regarding species of special concern; and that was put into Objective 9. She inquired if there is a timetable for the critical habitat issue. Mr. White responded in the next couple of hours the Board will be hearing the significant environmental areas (SEA) ordinance that is targeted toward addressing all the issues in Objective 9 that are currently unmet. Commissioner Carlson stated there is a timeline for Sawgrass South that starts December 20 when they submit their final engineering and preliminary plat with all their fees and attachments; and she wondered if the work on the critical habitat side superceded that. Commissioner Higgs stated the Office of Natural Resources Management will be asked to determine if this development is consistent with the Comprehensive Plan; there was comment about 9.2; and requested Mr. White speak to the overall objectives of the Comprehensive Plan and whether staff will be able to find this development as currently proposed to be consistent with the Comprehensive Plan, or is that a determination that the Board has to make. Mr. White responded the consistency in terms of that issue is determined by the Board or by the County Attorney. He stated Objective 9 reads, “protect endangered and protected wildlife species, and species of special concern from adverse impacts due to loss of crucial habitat”; and in particular, 9.2 allows staff to review for impacts, but there is no enabling ordinances that would set some of the development criteria. Commissioner Higgs stated it says the plans for development must be approved as consistent with the Comprehensive Plan. Mr. White advised the County Attorney has some opinion on that. Mr. Knox stated the Ordinance says that staff reviews the applications for consistency; and read aloud, “Each agency shall review such preliminary plat and plans for conformity with provisions of this Article and other applicable Ordinances, articles, policies, laws, and regulations, and shall forward comments and recommendations pertaining to the development to the Land Development Section within 30 calendar days.” He stated the next step in the process is to send it to the Board; the Board makes the final determination based upon recommendations and findings by staff; so it is the Board’s final decision. Commissioner Higgs inquired if staff would not review it for compliance with the Comprehensive Plan, but the Board would do that; with Mr. Knox responding staff makes a preliminary review and recommendation to the Board based on all policies and applicable Ordinances, and that goes to the Board; and the Board considers those like it would a zoning recommendation, and agrees, disagrees, or imposes conditions on the matter.

Commissioner Pritchard requested Mr. Washburn comment. Mr. Washburn stated he got three items that were presented from the Master Homeowners Association; in terms of the note on the plat on St. Andrews Boulevard, the note can be changed to unimproved right-of-way because that is what it is; the 67-foot turnaround is something that is required through the subdivision regulations, although the Board has the right to require something less than that; and if the Board wants to delete the sidewalk, it may do that in the process of reviewing the preliminary plat. He stated as to the Comprehensive Plan, when they receive a preliminary plat, they send it through all the different reviewing agencies; he assumes they look at it with respect to whether it is consistent with the Comprehensive Plan; it meets density limitations and residential character as spelled out in the Plan; and the only issue would be whether or not it met the item that was addressed by the County Attorney and the one addressed by Mr. White. Commissioner Pritchard stated regarding the connection of St. Andrews Boulevard and Brisbane Boulevard, it appears to be a significant roadway; and inquired would it not be connected at some point. Mr. Washburn responded that is a future decision by the Board when and if an interchange is provided at Pineda Extension and I-95; normally they would provide a turnaround area for anyone proceeding down Brisbane Boulevard who figured out they were in the wrong spot so they could turn around and come back; and 67 feet is what is necessary for the turnaround area. He noted one could go into Millstone and turn around in the cul-de-sac back there; so if the Board wishes to reduce the 67 feet to something less than that, the regulations provide the flexibility to do that as well as delete the sidewalk. Commissioner Pritchard inquired why are the two not connected; with Mr. Washburn responding the Board has not required connection yet. Commissioner Pritchard stated the request is for the Board to grant final engineering and preliminary plat approval for the project, and confirm staff’s determination that the 15-foot perimeter buffer is not applicable in this project; and inquired where does it say it is subject to final review of other departments. Mr. Washburn responded when they receive the preliminary plat for review, they send it through all the reviewing agencies. Commissioner Pritchard inquired has it been reviewed and are there recommendations; with Mr. Washburn responding yes, and that is why it is before the Board.

Commissioner Carlson inquired if the Office of Natural Resources Management okayed the item; with Mr. Washburn responding yes. She stated the Board needs to go through the individual questions that were posed by the public; and the first question was in regard to the 67-foot extension. She stated the issue that the residents are concerned with is the assumption that there may or may not be a connection with St. Andrews Boulevard at Pineda Extension; she has no problem with reducing the 67 feet and putting up a barricade there; but she is not sure what the other Board members feel in that case. She stated the binding development plan says there is a possibility that the connection may occur; the people wanted to put “may or may not”; and she does not think it matters in the case of the binding development plan as long as the information is relayed to the people who are going to be purchasing the property.

Commissioner Pritchard inquired what is the effect of reducing the 67 feet; with Commissioner Carlson responding the Board can take part of that away as well as the sidewalk; the backup restriction would be that if someone turned down the private road and backed into the public road, he or she could do the same thing; and she does not have a problem with that. She stated the other issue is the cul-de-sac because it is dealing with emergency vehicles; all residents pay a cost for emergency medical service; and the cul-de-sac is required for them to turn around. She stated that is something that should stay because of emergency medical services; and although some would argue that is going to be a deterrent in terms of the eagle’s nest, the jury is out as far as she is concerned on the impact to the eagle’s nest. She inquired how the Board wants to handle the issue of Brisbane Boulevard, and what would Mr. Washburn suggest would be a feasible amount of turnaround that would be less than 67 feet. Mr. Washburn advised he would extend it a minimum of 20 feet.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to extend Brisbane Boulevard 20 feet.

Commissioner Pritchard inquired if Commissioner Carlson is talking about Tract K; with Mr. Washburn responding it is the white area south of the gray area, just north of Millstone Drive. Commissioner Pritchard stated if it is dropped to 20 feet, that will encourage people to turn at Millstone Drive; with Mr. Washburn agreeing.

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

Commissioner Carlson stated the second question had to do with the utilities; the change the people suggested was to have a motion that the drawings be changed to read utilities are to be installed. Mr. Washburn stated that has already been done. He stated one speaker listed three things; the first was the notation on the map that says St. Andrews Boulevard not improved, the second was the length of the 67-foot turnaround area, and the third was the sidewalk; and those were the only questions. Commissioner Carlson stated she is going through questions asked by the public to which staff responded; the speakers did not bring up every one; but now the Board is at the point where it needs to answer each of the questions and determine where it sits on those issues. She inquired if the last motion included those; with Mr. Washburn responding he thought the public was satisfied with the responses that related to the technical issues. He reiterated staff changed the note on the map; with Commissioner Carlson advising that is fine. Commissioner Carlson stated the next was the note required by the binding development plan that comments on “may” versus “may or may not” in binding development plan condition #6.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to change “may” to “may or may not” in binding development plan condition #6. Motion carried and ordered unanimously.

Commissioner Carlson stated there was an issue regarding the north end of Brisbane Boulevard having a barricade; and there was a question about the southern terminus of St. Andrews Boulevard. She inquired if what is there is DOT approved and is it considered to be a barricade. Mr. Washburn responded there are two barricades, one at the north end and one at the south end, as well as a barricade north of that where Brisbane Boulevard would end. Commissioner Carlson inquired if at the southern terminus of St. Andrews Boulevard, there is room for utilities to move in and out; with Mr. Washburn responding just during installation, and if they need to get in there for some reason later on, but that is all. Commissioner Carlson inquired if the Board can improve that with reinforcement and signage that states no through vehicles except for utilities; with Mr. Washburn responding Mr. Osborne has assured him he will put whatever barricade is necessary there. Commissioner Carlson inquired what is the recommended barricade for the north end of Brisbane Boulevard; with Mr. Washburn responding they are suggesting FDOT barricades; and they are shown on the plan.

Commissioner Pritchard inquired why are they going through all this barricading; and why is the road not connected. He noted he read the stories; and inquired if it is to make the neighborhood more self-contained with no through traffic. He stated looking at the maps and renderings it is obvious that at some point the roads are going to be connected. Commissioner Carlson stated the agreement was that it may or may not be connected at some future date once the Pineda Extension is put in place; and the residents of the community have been assured that there will not be a huge traffic glut through their community to disturb their quality of life. Commissioner Pritchard stated if someone lives anywhere adjacent to where the roads are going to be terminated and wanted to go north or south on Wickham Road, he or she would have a long way out of their way to go. Commissioner Carlson stated everyone understands that; the request came from the Suntree community; they would prefer that until such date as the Pineda Extension is built and the I-95 interchange is connected when they could see the benefit to them; and right now they have a hard time seeing what the benefit would be. She stated those who are living near the area will have the knowledge that may occur.

Chairperson Colon stated the people in the community do not want through traffic. Commissioner Pritchard stated it would be a convenience to the neighborhood to be able to go through; with Chairperson Colon suggested Commissioner Pritchard meet with the community. Commissioner Carlson stated Commissioner Pritchard can meet with the community and they can explain all their issues; the Board is dealing with some of them now; and the next issue was buffering. She stated the community is not talking about the 15-foot buffer; but there is a risk issue. She inquired when there is an existing development with a lake and another development comes in next to the lake, where is the obligation to create a buffer. Mr. Knox advised he hates to be the bearer of bad news to the Suntree development, but it bought the property knowing the buffer was there and should have known that someday someone was going to develop the property to the south; and as a consequence, as it is the Association’s property, so it has to deal with the issue. Commissioner Carlson stated they need to protect their side; and it is not up to the developer to protect their interests because they can potentially use the lake as an amenity to their property if they choose. Mr. Knox stated the developer on the south side has an advantage that he did not create because the lake is there; but if he does not want to work something out with the Suntree community, the Suntree community has to do whatever it takes to protect itself. Commissioner Carlson stated that may mean fencing or that sort of thing; with Mr. Knox responding it could be. Commissioner Carlson stated at this time it does not serve either side to require the developer to put some sort of structure there, nor for the Suntree community to erect a structure; and this may end up becoming a civil matter, although it would be nice if the Board could prevent that from happening. She stated they do not have the 15-foot buffer Ordinance to rely upon to create a bigger buffer to work within; and inquired if anyone has other issues. Commissioner Pritchard stated the lake is a buffer; with Commissioner Carlson agreeing. Commissioner Carlson stated the issue with those who have built around the lake is concern about their risk; and inquired if someone from Sawgrass South jumps in the lake and drowns, who is at risk. She stated they are within the Master Association whereas Sawgrass South is not; fencing is not approvable in the Suntree Master Homeowners Association so putting up a fence may not be the right answer; and she is not sure if the Board can require the developer to put a fence on his side. She stated if both groups cannot talk to one another and come to some conclusions as far as buffering and risk management, then the backyards of Sawgrass, if this is approved, and St. Andrews Isle will overlook each other. She stated there have been issues before with other Suntree Homeowner Associations; they have gone through the civil process; and she is not sure what the Board would like to do.

Commissioner Pritchard stated it is their problem to work out.

Commissioner Higgs stated she is not sure the Board can resolve it because the tools it has do not seem to be the best way to go; so it will become a civil issue.

Commissioner Carlson stated the Board is down to the issue of compatibility with the eagles’ nest.

Commissioner Higgs stated in the Comprehensive Plan the Board has recognized the United States Fish and Wildlife Service and its responsibility in creating management plans for endangered and threatened species; the Board saw a plan some time ago when the eagles were in one nest; now there is a very different plan for the eagles if they are in the nest on Lot 9; and inquired if staff was writing a management plan for the bald eagle on Lot 9 would it write the same plan that U.S. Fish and Wildlife Service has given the County. Sherry Williams, Environmental Permitting, stated staff would probably follow the approved habitat management guidelines that have been published for the bald eagle; and the U.S. Fish and Wildlife Service has advised those are the only guidelines. She stated if the Office of Natural Resources Management were to produce its own ordinance or habitat management, it would probably follow what has already been done with the guidelines of a 750-foot zone and a 1,500-foot secondary zone. Commissioner Higgs stated the second plan for 17B did not seem to follow the guidelines that are currently published; with Mr. White responding staff has been in communication with U.S. Fish and Wildlife Service on this issue for some time; staff sent a letter asking for clarification of the issues; and when the Service wrote back, the answer was that the guidelines were just that, guidelines, and they are not codified in law. Commissioner Higgs inquired if the guidelines are applied in the second letter where the Service said the development was okay; with Mr. White responding the Service did not follow the guidelines and recommendations. He read from the letter signed by Don Palmer to the County, “the biological opinion with this incidental take permit was predicated on the fact the Service believed the Sawgrass South Subdivision was likely to result in the incidental take of the bald eagles; therefore the bald eagle management guidelines were not applicable.” Commissioner Higgs stated the Board wants to be consistent with the Comprehensive Plan, which says “we will protect endangered and threatened species”; the U.S. Fish and Wildlife Service, which used to provide that protection, is not following the guidelines; and the Service is saying the development will create a take. She stated she does not know if this makes the development consistent with the Comprehensive Plan.

Commissioner Carlson stated her original argument was the inconsistency and contradictory nature of the commentary from both agencies; she has a hard time approving this; but she does not want to keep the developer hanging on for another year to see if the nesting eagles are going to produce a full-fledged nest or whether they are going back to the original nest. She stated it is contradictory; and inquired if there are great horned owls sitting in the eagle’s nest, does the nest need to be protected for five years even though the eagles may never use the nest again, and is that part of the original requirement for protection. Mr. White inquired if Commissioner Carlson is referring to 17B or A; with Commissioner Carlson responding 17A.

Mr. White indicated it must be protected for five years; with Mr. Godley agreeing. Commissioner Carlson inquired what is expected to happen; with Mr. Godley responding there are guidelines for an abandoned nest, which could be the result of owls or loss of a member of the pair; and the nest tree itself is protected for a five-year period. Mr. Godley stated the letters are not contradictory at all if one understands the Endangered Species Act and the way the Service has to implement it; in the case of 17A, the Service issued a biological opinion that the take was not likely to occur, which means there would be no harm to the birds under the particular circumstances because there was a 400-foot buffer from Brisbane Boulevard and the residential development. He stated under the Environmental Species Act, the Service is required to protect and conserve all the species; however, that does not mean it protects every individual of every species forever because the Service cannot do that. He stated it would be the Service’s opinion that it has conserved the bald eagle, which is why there are 1,200 pairs, close to what it was historically before the white man. He stated in the case of 17B there is a partial nest that may never be used and an applicant who has followed the regulations and done everything the Act required; the applicant has even gone beyond that in that he is not constructing anywhere near the nest until it is either abandoned or whatever; so it is a different situation there. He stated the Service did issue an incidental take statement as it is required to do under the Act; if the species had been in jeopardy, the Service would have denied it as required by law; but because there is no jeopardy in this particular case, it did not do that. Commissioner Higgs stated the protection is not necessarily of the birds in the nest but of the species in general; and inquired if that is a correct interpretation of Mr. Godley’s statement; with Mr. Godley responding yes, with the caveat that the adult birds are not going to be harmed, injured, or killed under any circumstance. Mr. Godley stated the birds can build a nest whenever they feel like it; most likely it will be in the same tree or in another tree in the territory; and there would not be a take of an adult eagle or a juvenile or anything like it in this case as there is only a partial nest that may never be used again. Chairperson Colon stated it may be used, but Mr. Godley does not know that; with Mr. Godley responding it could be.

Mr. Knox stated Mr. Godley alluded to conditions; but he does not understand what the developer’s self-imposed conditions are going to be in terms of not developing where the 17B nest is located. Mr. Godley responded the developer agreed to not develop certain lots in the vicinity of 17B until the nest is either abandoned or whatever; and if the nest is occupied, the developer would continue to not develop those particular lots. Mr. Knox inquired if that would protect the eagle pair that may or may not come back to rest there; with Mr. Godley responding in the case of this particular pair, it probably would, based on their apparent acclimation to development. Mr. Godley advised their primary nest is within 400 feet; the birds started a partial next within 150 feet; and there are many pairs in the State that are much closer than the restrictions that are imposed on this particular developer that are still successful year after year. Mr. Knox inquired if the pair goes back to 17A is there any chance they would go back to 17B again later; with Mr. Godley responding there is always a chance; but it is not a good tree, and with any wind the nest could blow out. Mr. Godley stated that often happens; and after the nest blows out, typically the birds will find a better place.

Mr. Knox stated the Board has the ability to either approve, deny, or approve with conditions; and one of the things the Board may want to consider is approving the plat with the condition that the developers have agreed to impose upon themselves. Commissioner Carlson inquired if he means the additional imposition; with Mr. Knox responding not to develop the lots until such time that it is determine whether the nest is going to be used.

Motion by Commissioner Pritchard, to grant final engineering and preliminary plat approval for Sawgrass South at Suntree, subject to minor engineering changes as applicable and developer responsible for obtaining all necessary jurisdictional permits, and confirm staff’s determination that the 15-foot perimeter buffer is not applicable to the project.

Commissioner Carlson stated Mr. Knox said the Board could apply conditions; the condition she would be most comfortable with would be to approve it but have no development occur throughout the nesting season that starts October 1; and this is the worst time to start any development in terms of the interest of the eagles. Commissioner Pritchard inquired if Commissioner Carlson is talking about the lots nearby or the entire development; with Commissioner Carlson responding the entire development. She stated any development is going to disturb them; but whether or not that is defensible, she does not know. She inquired if the Board can approve with the condition that nothing occurs onsite until such time as it is determined the eagles are going to stay or whatever, or will that just put them in the same position. Mr. Knox suggested asking the eagle expert what the impacts are going to be if there is development on lots other than Lots 8 through 11.

Commissioner Higgs stated experts may tell the Board different things; Mr. Godley is here representing the developer; and the Board may need its own expert to advise it. She stated if the developer presents a plan to staff that is consistent with the guidelines published by the U.S. Fish and Wildlife Service and staff reviews it, the Board could approve it contingent upon the plan being consistent with the Comprehensive Plan; and it would take as its evidence that it is consistent with Comprehensive Plan Objective 9, and meets the guidelines that have been published by the U.S. Fish and Wildlife Service for the protection of the bald eagle.

Commissioner Pritchard stated this has already been reviewed by staff.

Commissioner Carlson stated she has no problem doing as Commissioner Higgs suggested if the developer will do that.

Mr. Godley stated he will explain the incidental take statement and the reasonable, prudent mandatory conditions that are in the permit now. He stated it says the developer has to initiate construction farthest away from the 17B nest; construction is not to occur in the vicinity of 17B in the nesting season in keeping with the bald eagle monitoring guidelines; and if the developer constructs in the vicinity of the nest, he has to have a bald eagle monitor there to watch the behavior of the birds if they are in the 17B or 17A nest. He noted the developer is not allowed to construct in the immediate vicinity of 17B under any circumstances during this nesting season.

Commissioner Carlson inquired what is the immediate vicinity; with Mr. Godley responding Lots 8, 9, 10, 11, and 12. Commissioner Carlson inquired is that sufficient to protect the eagle; and stated that is a significant difference than 17A in terms of the protection of the eagle when it was there. Mr. Godley stated they cannot predict absolutely the behavior of any eagle any more than they can a human; all they know is that this pair of birds nested at the old nest in the immediate vicinity and initiated construction again within 150 feet of active construction across the lake; that tells him the birds are well acclimated, and the probability is that they will not, if they return there, abandon. He noted he cannot say for certain the birds will not abandon 17A or 17B; and no expert is going to be able to do that.

Commissioner Higgs stated the Board has a responsibility to find it consistent with the Comprehensive Plan; and that is the determination the Board does not have at this point. She stated they have information that is contrary to that; the only way it could be approved today would be for staff to come back with a plan that is consistent with the objective of protecting threatened and endangered species; and the Board can either deny it or approve it with the plan for the applicant to come back and demonstrate that it is consistent with the Comprehensive Plan in terms of protection of the eagle. She stated she has evidence that shows her it is not consistent with some of the guidelines she read; she cannot determine today that it is consistent with the Comprehensive Plan; and the attorney has said that is her job to do.

Commissioner Pritchard stated the Board needs to stop using the eagle as a surrogate for all the other issues of not connecting roads, stopping development, keeping others from the lake, or developing an ordinance to “save the eagle.” He stated this has been approved by staff; the developer has made significant concessions; no one knows if the eagles are returning or staying; and starting construction on the property that is farthest away and having an eagle reporter on site when construction is getting closer to the nest area are significant concessions. He stated for the Board to belabor this by coming back again and again to keep discussing the same item looking for more loopholes to say no is inappropriate; and that is not the job the Board is suppose to be doing. He recommended moving the item with the concessions made by the developer.

Mr. Knox stated this is not a case where the Comprehensive Plan is crystal clear; there is no policy the Board can rely on to say they are violating or not violating or whether they are or are not consistent; it is not like schools where there is criteria for deciding how many classrooms are needed; and it is not a situation where there is a policy saying there have to be adequate public facilities in order to go forward with the development. He stated those kinds of policies do not exist as far as endangered species go; and what the Board has is an objective and several policies that require implementation through an ordinance, which the Board does not have yet. He stated the objective says the County will protect threatened and endangered wildlife species and species of special concern from adverse impacts due to loss of crucial habitat. He stated he is not sure what evidence the Board has one way or the other as to whether this is crucial habitat; but there is evidence of a permit that was issued by the U.S. Fish and Wildlife Service that indicates it is allowing certain things to happen on this piece of property, which may or may not impact this particular nest; and crucial habitat has not been defined in County Ordinances.

Commissioner Carlson stated she does not know what the Board has the votes to do; but based on her philosophical opinion on making sure things are compatible with the Comprehensive Plan, she would prefer to deny.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to deny final engineering and preliminary plat approval for Sawgrass South at Suntree. Motion carried and ordered; Commissioner Pritchard voted nay.

CITIZEN REQUEST - R. B. MORGAN, RE: SUPPORTING LEGISLATIVE INITIATIVE TO
PROVIDE AUTOMATED EXTERNAL DEFIBRILLATORS IN NURSING HOMES
(CONTINUED)

Dr. John McPherson stated he was asked to give the Board an update on the Public Access to Defibrillators Program; they are making good progress; they have a $30,000 grant from the American Heart Association that allowed purchase of 17 automated external defibrillators (AED’s); and they had multiple successes in defibrillation of patients suffering from cardiac arrest. He stated AED’s are in the courthouses, and are deployed with the Indian Harbour and Satellite Beach Police Departments; and they are applying for a $25,000 matching grant that will allow purchase of an additional 25 AED’s. He stated all first responders need to have AED capability; the need is for 100 AED’s; and they are still lacking in their ability to provide all first responders with AED’s, but are moving forward fast to initiate the program. He stated Chapter 768, F.S., the Cardiac Arrest Survival Act, allows some legal relief for medical liability, and it is easier to get medical direction and EMS agencies responsible for the AED’s.

Marielise Jacobs, Director for Health and Safety for the American Red Cross Space Coast Chapter, stated they provide training in the use of AED’s; that is something the American Red Cross strongly supports; and they have trained 1.5 million people in the United States. She stated they support public access to AED’s because of the importance in saving lives.

Chairperson Colon stated the Board approved the letter previously.

The meeting recessed at 1:00 p.m. and reconvened at 1:50 p.m.

*County Attorney Scott Knox’s absence was noted at this time. Assistant County Attorney Shannon Wilson’s presence was noted at this time.

AMENDMENTS WITH SEAN ANDERSON, SAM BARDWELL, AND JEANNETTE
CONGDON, AND AGREEMENTS WITH SEAN ANDERSON, KATHLEEN HENRETTA,
LAURA SIEMERS, THOMAS SLAWSON, KENNETH STUDSTILL, THOMAS THOMPSON,
AND SHARI WILSON, RE: LEGAL REPRESENTATION OF INDIGENTS IN CONFLICT
PROCEEDINGS

James Russo, Public Defender for the 18th Judicial Circuit, which includes Brevard and Seminole Counties, stated he is present on behalf of the 18th Judicial Circuit Conflict Committee, which is made up of Judge Moxley, Commissioner Scarborough, and himself. He stated the Committee is charged with the responsibility of approving conflict attorneys who are under contract with the County to handle conflict cases; and explained what conflict cases are, giving the example if two people charged with a crime, only one can be represented by the Public Defender, so the other individual must have a conflict attorney. He stated conflict cases go to the attorneys who are approved by the 18th Judicial Circuit Conflict Committee, and who are under contract with the Board of County Commissioners. He stated the conflict contract is $26,000 a year; and there are ten attorneys under contract who are handling cases for this County. He stated conflict contracts start in 1983 by way of the Public Defender; the Public Defender’s office had a limited amount of money to set up conflict cases contract; and then through the years the Board assumed the funding and administration of that. He stated the contracts have been at $26,000 since at least 1996; Revision 7, Article 5 is going to relive the County of that financial obligation on June 30, 2004, at which point the State is supposed to pick up that funding; the fiscal year goes through September 30; and the request of the 18th Judicial Circuit Conflict Committee is for the Board to fund what was originally budgeted for the 12 months, which is $26,000, over the nine months. He stated they are not going to be under contract with the Board after June 30, 2004; but the cases are going to continue after June 30. He stated they may get appointed to a case on June 29, but that case may not conclude until 2005; they are going to continue to represent these people; but they are not going to be obligated to be paid by the County after June 30. He noted just as the County can opt out of the contracts, so can the attorneys; the Board will want to assure they will stay at least through June 30, 2004; and one way to do that is to increase the salary amount so they do not drop the contracts in April or May of next year leaving a big gap. He advised if the County were to pay the statutory amount for conflict cases, which is pretty low at $1,000 for misdemeanor cases and $2,500 for felony cases, the court would appoint the attorneys and the Board would be paying each roughly $5,800 a month as opposed to a whole year at $26,000. He stated he knows this is not in the budget; but requested the Board consider doing this for the reasons he just gave. He stated there are a number of people present who are under conflict Contracts; they have been doing a lot of work for a low amount of money; and they are Laura Siemers, Sean Anderson, Tommy Thompson, Kate Henretta, and Shari Wilson. He stated Sam Bardwell, who had a contract for many years, was present earlier; and Joe D’Achille gave up his conflict contract because of the time and money involved. He again requested the Board pay $26,000 over nine months.

Chairperson Colon stated the budget started early in the summer; and inquired why is this coming now when the Board is addressing the final budget hearing in a week. She stated the Board wants to be fair; it has given everyone who is going to be affected by Article 5 a nine-month contract; and if there is no assurance these attorneys are going to continue for nine months, the Board should go out for RFP to see what attorneys in the community would be interested in fulfilling this contract for nine months. She noted the Board is not responsible for what is happening with Article 5; Mr. Russo is saying there is no assurance; she would expect professionalism from the attorneys to know where the County stands now; and this is not the year to be coming for a raise. She stated this is a very tough budget year; she will not be supporting any increase; and she would want to keep it the way it is in regard to the nine months.

Mr. Russo stated the Circuit Conflict Committee only meets when it needs to fill vacancies; the last time it met to fill two vacancies is when this issue came up; and as soon as it came up, the Circuit Conflict Committee got it on the Budget Workshop Agenda, so the issue has been aired there. He stated the Board could send out RFP’s tomorrow and tell all the current contract attorneys to leave, but it would not get anybody to fill the contracts for $26,000 a year; he is on the Committee that sends out requests for lawyers to fill these conflict contracts; and they are getting hardly anyone applying. He noted there were two attorneys rejected last time; and other than that every attorney who has applied has been taken. He advised there is nobody out there who wants to do this work for $26,000 a year; and if these attorneys leave, the Board will not find anyone willing to do that work.

Chairperson Colon stated Mr. Russo said that either side could back down from the contract; and she does not want anyone to have a contract with the County and the County not feel comfortable there is a commitment of nine months. She commented on professionalism; stated this is not the only job the attorneys do as they have a practice of their own; and if they feel that nine months at the quoted amount is not enough, the Board should go ahead and ask if others are interested. She stated the Board will not force anyone to take a contract he or she feels is not fair. Mr. Russo reiterated there are no people who are interested. Chairperson Colon stated she will not know that until she goes out and finds out. Mr. Russo stated the Circuit Conflict Committee sought people to do this work; there are no other people interested in it; and dependency attorneys, who also have contracts, were making $36,000 a year and are now making $50,000 a year and not doing the same amount of work as the criminal conflict attorneys. Chairperson Colon stated she knows these people work hard; but to have the discussion about not having commitment is not very reassuring; and that is what she is uncomfortable with. Mr. Russo advised lawyers are very comfortable talking about contracts no matter which way they are drafted.

Commissioner Carlson stated she can appreciate wanting the increase, but does not think it will get a lot of support; and inquired if Mr. Russo has any idea how the State is going to organize so that they can approach for an increase or come in at a higher more appropriate level. Mr. Russo stated right now there are two ways the State is talking about doing it after June 30; one is to have a registry of lawyers; the judge will have very little discretion; and he will go down the list and appoint people at the current statutory rates, which are far above what the County is paying under the conflict contracts. He noted the statutory rates are $1,000 per misdemeanor case, $2,500 for a felony case, and $3,500 for a capital case; and the State is talking about funding at statutory rates. Commissioner Carlson inquired what does that mean in comparison to the $26,000 per year; with Mr. Russo responding taking the average case load over the past five years, under the statutory scheme, the conflict attorneys would make close to $72,000 a year, where the County is paying $26,000. Commissioner Carlson inquired if the current conflict attorneys would be added to the list, and then given opportunities to work at some point in time; and if they were part of the contractual agreement, they would get potentially $72,000. Mr. Russo responded he has no idea what is going to be funded, but the State is taking over. Commissioner Carlson stated she appreciates everything the conflict attorneys do; the County needs them; but once the State takes over, it is their ball game, and hopefully the attorneys will be compensated appropriately. Mr. Russo advised he is not part of the conflict contract; he has his own office; and he is just present on behalf of the conflict attorneys.

Commissioner Pritchard inquired is it $26,000 or $65,000 a year; with Mr. Russo responding they get $26,000. Commissioner Pritchard stated the memo says $65,000 is unfunded; with County Manager Tom Jenkins advising there are multiple people in the part that is not funded, and it comes to $65,000. Commissioner Pritchard inquired why is the County paying a 12-month compensation over a 9-month term; with Mr. Russo responding it is not, and that is what they are requesting. Commissioner Pritchard inquired why the Board would want to do that. Mr. Russo responded for the reasons he gave a few moments ago. Mr. Russo stated these attorneys will be doing cases well after June 30; if they are appointed to a case on June 29, they could handle that case for another six or eight months; and they are not going to get any further compensation from the County for doing that case. He stated the issue Chairperson Colon feels uncomfortable about is the County and the lawyer can back out with 30 days notice; so there is the possibility that contract lawyers not wanting to handle cases into the year 2005 and not be compensated for them may resign their contracts in April 2004, leaving the Board with the obligation of either sending out RFP’s or having the court assign people at the rates mentioned previously. He advised for those reasons alone the Board may want to consider everything possible to keep the conflict contract lawyers that it has now under contract. Commissioner Pritchard inquired who will compensate them at the end of nine months; with Mr. Russo responding starting July 1, 2004, the State of Florida is going to assume that, but only for cases appointed after July 1; the State is not going to pick up continuing cases; and if someone is appointed to a case on June 30, 2004, the County is obligated for that particular case. Commissioner Pritchard stated this is looking to compensate a 12-month program in nine months because at the end of the nine months the State is going to take over the payment; and inquired will the State be paying $26,000 a year. Mr. Russo responded they do not know what the State is going to be doing; and the State may well go to the system of the registry where the attorney will be appointed by the court and bill up to $1000 for misdemeanor case and $2,500 per felony case. Commissioner Pritchard stated that could make it more or less than $26,000.

Mr. Russo stated for what these people are handling now, at $1,000 for misdemeanor case and $2,500 for felony case, they would be getting roughly $72,000 a year instead of $26,000. Commissioner Pritchard inquired is the assumption that a certain amount of cases will go beyond the nine-month time; with Mr. Russo responding if Ms. Siemers is assigned a case on June 29, she is going to have to stay with that case until it concludes, which may be six months down the road; but the County under the conflict contract will not be obligated to pay her any money after payment has been made on June 30, 2004, and the State is not going to pay for that either. Commissioner Pritchard inquired would every conflict attorney be assigned a case in May or June that would take them past July, August, or September; with Mr. Russo responding probably every one of them will be assigned cases sometime in the month of June that will take several months or longer to conclude. Commissioner Pritchard suggested continuing to pay one-twelfth every month; with Mr. Russo advising the law says the County’s obligation stops as of June 30, 2004. Commissioner Pritchard inquired what happens if one of the attorneys does not have a case assigned that carries them through July and August; with Mr. Russo responding they will be done. Commissioner Pritchard stated they will have received 12 months compensation for nine months work; with Mr. Russo advising that is not going to happen. Commissioner Pritchard inquired in that case, will the County be reimbursed; with Mr. Russo responding something probably can be worked out, but he is certain they will get cases in June, and those who do not would be willing to take their nine months and walk away. Commissioner Pritchard inquired if the County is not responsible after July 1, why would they not become employees of the State, and why should the County continue to pay; with Mr. Russo responding the State is not going to pay for continuing cases. Commissioner Pritchard stated he is talking about if there are not continuing cases; with Mr. Russo responding if there are no continuing cases after July 1, there are no problems.

Commissioner Carlson stated she asked Attorney Wilson what the impact might be of what Mr. Russo is saying. Assistant County Attorney Shannon Wilson stated historically the contracts are done to save the County money; the courts are not bound by the contracts, but recognize them because the system implemented serves both the interest of the criminal defendants and the court system; it has been able to keep the cases moving as well as the interests of the County in keeping costs down; and what Mr. Russo is referring to under Florida Statute is what would have to be paid if all the attorneys backed out of the criminal conflict contracts. She stated under the current contracts, the attorneys could give 30 days notice and resign; that would leave the County in the position of having to take over the responsibility of the cost until June 30, 2004; and if the County cannot find additional attorneys to take over the contracts, the County will have a number of months to fill at the statutory rates which are $1,000 per misdemeanor and $2,500 per felony case. She stated there is a separate contract dealing with capital cases, which is not an issue here; this is just dealing with the felonies and misdemeanors; but that could be the fallout if all the attorneys resign their contracts. She noted she does not hear the attorneys saying that, but that is what the County could be facing.

Commissioner Pritchard stated he is not looking at the attorneys resigning; what he is looking at is paying beyond the nine months of service unless they have continuing litigation; and he has difficulty paying for 12 months of salary for nine months of work without assurances there is going to be additional work. He stated he fully appreciates the cost of all this, and realizes the attorneys could be doing better; but he has to look out for the taxpayers. He inquired if they go into the thirteenth, fourteenth, or fifteenth month, are they compensated for that; with Mr. Russo responding no. Commissioner Pritchard stated it is a bit of a risk on their part if they are assigned something in June; and it could be a six-month case, with three months on their own, depending on what the State does.

Chairperson Colon stated if the attorneys feel like that, the Board needs to know now; if Mr. Russo’s attorneys want a 12-month contract with the increase, then the Board needs to have that discussion now so it can know what it is dealing with; and if that is the case, they need to tell the Board now so it can know what kind of decision it needs to make. Mr. Russo noted they are not his lawyers; and they are present if the Board wants to ask them. Chairperson Colon stated she would be happy to ask each one of them if they do or do not want the contract.

Commissioner Higgs stated the Board is still discussing the budget; there is still a lot of discussion going on about the issues involved in the transfer from the County to the State in regard to the conflict attorneys and other issues; some of those will be resolved by the Legislature when it goes into session; and she is not sure the Board is in a position today to resolve all the issues involved here. She stated she understands it has been a number of years since there have been increases to the contract; the Board has taken a position with all of the issues that the nine months are the County’s responsibility; the Florida Association of Counties has made that position clear; and they feel strongly about that as a Statewide organization, so she would hate to see the Board do something differently. She stated as the Board finishes up the budget, it can have discussions about the conflict attorneys and what is going to happen later after July 1; but the Board is in a tough spot on the budget; and she hopes the Board will have one more opportunity to discuss some of the issues in this year’s budget. She stated there are a lot of issues in the budget; and the Board cannot make a commitment to these people at this moment. She stated there is an issue with the nine months; all of the programs end when the State is supposed to take over; and the Board would be misleading people because it does not know what the State is going to do.

Attorney Wilson stated Attorney Repperger has been working with the Circuit Conflict Committee, and would like to make a few comments. Assistant County Attorney Cliff Repperger stated it is not a matter of resigning the contracts for the majority of the attorneys, as they have not been signed yet; they did go out for an RFP in July; and these are the applicants they got. He stated Mr. Russo is correct in stating to the Board that the applicant pool is quite limited; the group of attorneys present comprise the majority of the attorneys who applied; and not many other attorneys would applied. He reiterated the contracts are not signed yet by the majority of the attorneys; and if they are not signed by the time work is supposed to start on October 1, 2003, the courts will start appointing attorneys off of the contract; and the Judicial Administrative Order provides that compensation can be made at an hourly rate of up to $150 an hour. He stated if that happens, the rate that the County will be paying over the next nine months will far exceed the $60,000 that is included in the budget request; and the Board should be aware of that reality that is going to happen in two weeks if the contracts are not signed. He advised the contracts are not traditionally case driven; they are more time period driven; and historically they have been compensated depending on how many cases they are appointed over a period of time, so they could be appointed anywhere from 20 to 40 cases in a month period and still get the same compensation rate. He stated the County will have an obligation to fund for cases appointed up to June 30, 2004 under the current legislation; so if the contract expires or an attorney is under contract and is appointed a case on June 30, the County still has an obligation to fund that case through its completion. He stated the County has always considered that when the contracts have terminated, the attorneys should finish out those cases, and most attorneys have; but the County will still have the funding obligation so if attorneys are not under contract on June 30 and there are cases appointed up to that date, the County would still be paying for those cases after June 30, which is another point to consider. He advised if the attorneys are under contract, they will finish out those cases and the rate the County has paid at that point will cease; but if they are not under contract, the County is still going to have a funding obligation after June 30.

Chairperson Colon inquired if these attorneys do not wish to go with the nine-month contract and the Board is able to identify attorneys who do want to do business with the County, will the Board have the ability to identify the attorneys it wants the judge to assign. Attorney Repperger advised the court is not bound by the contracts; traditionally and historically the courts have deferred to the contracts and utilized the attorneys under contract; but there are cases every once in a while where the court would like a specific lawyer appointed on a specific case, and appoints off the contract; and the County pays for those cases. He noted such cases are rare, but do happen; and if there are no attorneys under contract, the courts will be able to appoint whatever lawyers they deem appropriate, and the County will pay the compensation rate.

Attorney Wilson stated there is nothing wrong with the County transmitting a list to the court system asking it to use these lawyers; but the court ultimately has the discretion as to who to use.

Chairperson Colon stated she does not want to be put in a position where the Board has major decisions to make in the next two weeks; it has to watch how it is spending its money; and those issues need to be taken into consideration.

Commissioner Carlson stated it is clear based on what Mr. Repperger said that the Board is going to see an increase in cost to this after the end when the State takes over; the low cost the Board had for years is not the same as the State; so they are going to be charged a lot more for services after July 1. Attorney Repperger stated there will be some funding after July; what action the Board takes will determine how much funding it will be; and if this increase is approved, most of the funding would cease on June 30, but if not, there could be a potential substantial funding obligation existing after June 30. Commissioner Carlson stated that rings loud and clear, but she is not sure the Board can do anything about it.

Commissioner Pritchard stated he has to watch out for the interest of the taxpayers; and suggested contracting for nine months and opt to go for the another three if the time goes to that. He stated that would be the full $26,000 per year; the taxpayers are represented; and the attorneys would receive a 12-month contract unless they were not assigned a case in June that would carry forward. He stated otherwise, the Board would be giving them a raise; he is looking at other areas that are being proposed for cuts; and he has a real problem cutting one position but paying another 12 months compensation for nine months of service. Mr. Russo stated the Board is giving a raise, but is receiving something in return. Commissioner Pritchard stated he is not arguing that; what they are doing for the price they are doing it is good; but he has to weigh that against the potential elsewhere. He stated the Board is going to have discussions about budget issues; and it is not just a question of not having as much money to throw around, as $65,000 could fund the SEA grant coordinator position.

Chairperson Colon inquired if there is any other scenario of attorneys who will fall in the same classification of not having cases after that date. Assistant County Manager Stockton Whitten responded he is not sure he can add anything to what has been said; and they budgeted for nine months for all the programs that are going to be State programs after July 1.

Commissioner Pritchard inquired can money be moved from dependency attorneys; with Mr. Whitten responding those contracts are already signed, so he assumes that money is budgeted; and he does not know how that move could be done. Commissioner Higgs inquired if all of them are signed; with Mr. Russo responding all of the dependency slots are filled. Commissioner Pritchard stated it still gets back to paying for nine months and an additional three if the cases roll; the motivation with time driven was to be done in time because after that, the attorney was on his or her own, which is fair; and paying monthly for the additional three months, which would give the 12-month obligation, falls right in line with what has been done for $26,000 per year; but there are many other budget issues to deal with.

Chairperson Colon inquired how would this work and how would it be prorated; with Mr. Whitten responding he heard Commissioner Pritchard say it would be a 12-month contract for $26,000, and if they complete the nine months and continue on with a case for 12 months, they would still receive $26,000. Commissioner Pritchard stated if they are done in nine months, they are done because the State is taking over; the only way they would continue for the additional three would be if they had a case that moved into the tenth, eleventh, or twelfth month; and then they would receive the one-twelfth of the compensation per month. Attorney Repperger advised that would require an amendment to the contracts currently available in Options 1 and 2. Shaunna Heffernan, Criminal Justice Services Manager, stated there were not two options offered today; but it is correct that an amendment would have to be prepared as they were prepared to go forward for nine months at $19,500 per attorney. Commissioner Pritchard stated it would be with additional compensation if the cases continue into the tenth, eleventh, or twelfth month; with Ms. Heffernan advising that is correct. County Manager Tom Jenkins stated that would require some verbiage change in the agreement; and that can be included in the motion to modify the language.

Motion by Commissioner Pritchard, to approve 12-month agreements for legal representation of indigents in conflict proceedings at $26,000, with one-twelfth of $26,000 to be paid monthly in July, August, September 2004, only if cases go beyond June 30, 2004; and direct that the Agreements be amended to make those provisions.

Chairperson Colon inquired if language can be added so an attorney is not able to postpone a case. Attorney Repperger stated it could be written into the agreement that if the case is held over, the attorney would be compensated for the three months following June 30, 2004; but there is not a lot of case control over it. He stated it would be hard to verify that the attorney is not holding onto a case; but he has worked with a number of the attorneys for many years and knows they try to bring the cases to final disposition as soon as possible. Mr. Jenkins noted judges require them to expedite generally. Attorney Wilson stated there are many continuances that occur as the result of the court schedule and the court docket; sometimes the State Attorney has to continue cases because of unavailability of witnesses; it is very difficult; and it would be necessary to sort through a lot of cases to find the specific reason for each case. Mr. Jenkins noted it has to be a bona fide request or the judge will not allow it.

Commissioner Higgs inquired how much has been allocated in the budget for this item; with Mr. Jenkins responding $19,500. Commissioner Higgs stated if the Board contractually obligates to have people paid $26,000 for 12 months, there is a budgetary issue; with Mr. Jenkins agreeing. Attorney Repperger noted the rate is the same; with Commissioner Higgs advising the Board is obligating itself contractually to more money. Mr. Jenkins stated $19,500 was budgeted per attorney for nine months; and the Board would have to find the additional money later in the year. Commissioner Higgs stated the Board should not obligate itself to contracts it is not budgeting to fulfill as that is bad business.

Commissioner Carlson stated she agrees that $19,500 is in the current budget; but if the Board did the longer contract, it would give a buffer to keep costs down based on the conversations the Board had in terms of the cost of the State taking over on July 1, 2004.

Commissioner Pritchard inquired what happened; with Commissioner Carlson responding nothing unless Commissioner Pritchard wants to increase the budget. Chairperson Colon states she is not willing to support it. Commissioner Pritchard stated he is not interested in increasing the budget; but $19,500 per attorney has been budgeted for the nine months. Commissioner Carlson stated that is currently in the budget, but they wanted to have $26,000 for the nine months.

Mr. Jenkins inquired if the Board needs to adopt the contract. Attorney Wilson advised the Board needs to make a motion as to the contract term and amount.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreements with Sean Anderson, Kathleen Henretta, Laura Siemers, Thomas Slawson, Kenneth Studstill, Thomas Thompson, and Shari Wilson for legal representation of indigents in conflict criminal proceedings from October 1, 2003 through June 30, 2004 at $19,500; and Agreement with Kenneth Studstill for legal representation of indigents in conflict capital criminal proceedings from October 1, 2003 through June 30, 2004 at the rate of compensation outlined in the Agreement. Motion carried and ordered unanimously. (Agreements not signed by Attorneys.)

Commissioner Pritchard stated nowhere in the agenda report does it say $19,500 has been budgeted. Mr. Jenkins stated it says it would create a deficit of $65,000. Commissioner Pritchard stated it does not explain how the $65,000 comes about; and recommended they be written out with more information so the Board can understand better.

DETERMINATION, RE: ACCESS MANAGEMENT FOR PALM BAY PARKWAY

Annemarie Burrows, representing the West Pines Estates Homeowners Association, stated she supports those individuals from northwest Palm Bay who signed a petition that was presented to the Board last summer supporting a road to get out of northwest Palm Bay in case of an emergency. She stated Palm Bay needs a controlled access parkway; the people, Mayor, and Palm Bay City Council see the need, as does Representative Needelman; she understands Commissioner Colon heartily supports the need for this road; and inquired why with all this local support are they 12 years away from having this road when a few months ago they were seven years away from seeing the parkway. She stated she has been advised that some of the fault lies with the County Commission, which as a group is not totally supportive of the parkway; but she hopes this is not true. She stated discussions have been tabled repeatedly; other times there has been a need to have more and more surveys; and implored the Board to stop putting stop-sticks on the roadway. She stated the roadway is important to part of southern Brevard County; and requested the Commissioners not deny the much-needed road. She stated she hopes the Board can be convinced of its importance as an evacuation route in case of disaster, which could be an accident on I-95 or a toxic cloud coming to northwest Palm Bay with a fast moving woods fire. She requested the Board allow everyone to work together to make this important road a reality in less time than 12 years; and stated it can be done with the Board’s support. She stated most of the people in northwest Palm Bay just want a two-lane road with controlled access to be able to get out of danger or harm’s way.

Chairperson Colon inquired if Ms. Burrows said she did not support the parkway; with Ms. Burrows responding no, she said Chairperson Colon heartily supported the parkway.

Allan Whitehead, representing the Platt family and the Platt Ranch, stated they are opposed to the parkway; and he has sent correspondence to the Board voicing concerns about the parkway as it is presently being planned. He stated he will address some of those concerns and remind the Commission of the Platt family’s concerns. He stated the Platt Ranch is approximately a 4,800-acre property located south of US 192 and west of Simon Road; and the proposed alignment for the parkway divides the Platt Ranch in two, and will have a devastating impact on the ability of the Platt Ranch to continue to function as it has since the late 1800’s as a viable agricultural concern. He stated the Platt family would prefer that the parkway not be built; if it is going to be built, there have been alternative routes considered and rejected by the MPO that would move the parkway further west toward the western edge of the Platt Ranch; and the western alignment would serve a number of functions more favorably than the current alignment. He stated a western alignment would have less impact on the Platt Ranch and its ability to be a going concern agriculturally; and it would better meet the needs of the citizens of Palm Bay. He stated as a representative of the Platt Ranch, he was surprised to learn that the Palm Bay contingent supported a more western alignment because it better serves their purpose, which is to provide a quick access out of those areas of Palm Bay that do not currently have quick access. He stated if the road is built in its present location, it will encourage urban sprawl; and if it is built as a controlled access roadway, which is being recommended, then it will result in a lower speed, more congested roadway. He stated one basis for allowing or encouraging the road was to reduce traffic and congestion problems being suffered by the City; the road, as planned, especially if it is a controlled access roadway will not alleviate the problem; and in the very near future the problems in Palm Bay will be experienced by the unincorporated area where the road is being proposed. He stated when the project was originally conceived, it was designed to serve three functions, a high speed access out of Palm Bay in the event of an emergency, to diminish urban sprawl and reduce the possibility of urban sprawl spreading further west, and to provide a high speed route for those citizens of Palm Bay who worked in the Melbourne area; and a western alignment may meet those goals, but the current alignment and proposed controlled access will not meet them. He encouraged the Board to send a message to the MPO to look at the original desires and come back with an alignment that will meet the goals and desires and not add to the problems that Palm Bay is suffering.

William Ferrell, representing the Ferrell Properties and Trust, stated they are in favor of a controlled access; and they want the US 192 property owners to have reasonable access to their property.

Fran Wales stated she has lived in the northwest section of Palm Bay for over 15 years; in the past she served on the MPO and the Southwest Transportation Study; and she has been a part of the project advisory group, so she has a long understanding of the issue. She stated high speed was mentioned; but the speed that was discussed during the Southwest Transportation Study was a minimum of 55-mph; and she does not see any reason they cannot achieve the speed of 55-mph minimum with the controlled access. She stated as the residents of Palm Bay have said, the road is desperately needed, particularly because it gives access to a westward evacuation route. She stated during the last evacuation, I-95 was bottlenecked; if the parkway is put in as proposed, there will be the ability to funnel people into Central Florida where there are a multitude of hotels and safe areas; South Florida is growing to such an extent that I-95 cannot be relied on anymore; and that has made the parkway even more crucial. She urged the Board to support the road; stated it seems as though this topic has been discussed for over 15 years; and the people desperately need the Board’s support now to move forward. She stated if it is not done soon, she is afraid there are going to be fatalities during an evacuation event because of lack of planning for the road.

Sue Hann, Deputy City Manager of Palm Bay, stated the City of Palm Bay strongly supported the Palm Bay Parkway project for many years; in 1995, the Board, at an initial feasibility study for the parkway, indicated the definitive public benefit with a cost of just over $10 million for right-of-way and construction between Malabar and US 192; and again in 1998 the parkway was addressed through the Southwest Brevard Transportation Study. She stated the project emerged as one of the only viable options for traffic circulation benefits in this area; the cost estimate at that time rose to just over $12 million; and at that time the MPO considered the parkway in the context of a high-speed roadway with restricted access rights. She stated at the time the implementation of the parkway was strongly supported; now five years later, the only progress that has been made is another study with the cost estimate escalating approximately $6 million per mile, a threefold increase in five years; and although the study is a prerequisite for obtaining federal funds, there are no other project phases on the horizon for the next five years. She stated based on history, the cost scenario can only continue to get worse; and coupled with the funding uncertainty, the citizens have little hope that the project will become a reality. She stated for Palm Bay this project is one that provides significant benefits from improved traffic circulation options to emergency evacuation options; but the roadway will be of limited benefit to the residents if there is unconstrained access; and they concur that it is essential to maintain the integrity of the roadway. She stated the question of controlled versus limited access seems to have gained momentum as a focal point for growth management policy debate; currently the roadway is under the jurisdiction of the County; and the Board is here today to decide whether to direct DOT to purchase limited access right-of-way at a cost of $8 to $10 million more than the standard right-of-way cost. She stated such a decision would likely delay the project further due to limited funding availability and escalating costs; it will increase the cost of the project and the cost of the local share of the project; and it will weaken the legal case in the event the right-of-way acquisition is contested. She advised it will provide a false sense of security as to access as future Commissioners may decide to grant access and are not restricted from doing so; and it will only provide an estimated time travel savings of a minute and a half not counting for signal delay between Malabar Road and US 192. She stated most residents might be willing to forego the one and one-half minutes saved to save $10 million and get the roadway built more quickly; the affected cities can work together to develop the necessary comprehensive plan policies and other access controls that will achieve the desired results for the parkway; and the MPO’s consultant recommended several tools that could be used to facilitate appropriate level of access control. Ms. Hann stated at the time the roadway moves closer to design and construction, flexibility will be needed to address any issues and constraints that may occur at that time; and recommended the Board not take the most conservative approach now unless the goal is to never build the road. She stated limited access is not just a policy call; it is another roadblock that could delay the process and cause the roadway not to be built; and expressed concern that the roadway needs to move forward and the limited access is potentially constraining that forward movement. She stated the residents are demanding action on the parkway; and recommended working together to make the project happen as expeditiously as possible. She stated endorsing the controlled access option will allow the PD&E report to conclude, and hopefully position this project for funding in the upcoming DOT work program cycle; and the City of Palm Bay is committed to work in partnership with the County and West Melbourne to facilitate a controlled access plan that preserves the integrity of the roadway. She stated the project can be a model of intergovernmental cooperation and coordination; but so far citizens are only seeing a failure to produce the project. She advised the controlled access option can meet the intent of preserving transportation capacity; and as government officials, they need to follow through. She stated in terms of Mr. Whitehead’s comments about the alignment, the Palm Bay City Council passed a Resolution in support of the current alignment; however the City’s primary objective is to get the road built, so the City would be happy to entertain other options. She stated the project advisory group looked at the various alignments including the ones that were prepared by the Platt family, but for environmental and other reasons, they were discounted at the time. She stated the City would like to encourage the Board’s support of the controlled access option.

Mark Ryan, City Manager of West Melbourne, stated West Melbourne can understand the frustration that the citizens of Palm Bay experience in that West Melbourne experienced a similar delay of 12 years in the widening of Dairy Road; Mr. Newman of the Parson’s Group presented various alternatives for the roadway; and the West Melbourne City Council endorsed the current roadway alignment and the controlled access facility option because of the cost factor involved in elevating it to a limited access facility. He stated the City’s endorsement is an attempt to get the roadway constructed in our lifetime; and the City will work with the units of government to have an access plan and growth management plans to prevent urban sprawl and driveway access that everyone is concerned about.

Ken Greene, Palm Bay City Councilman, stated at the last MPO meeting there was discussion about conducting a survey to get people’s opinions on what needs to be done in the County; his job is to listen to people; and advised of listening to opinions at Board meetings, homeowner association meetings, and Palm Bay City Council meetings. He stated they voted on the controlled access; that opinion was expressed through what was heard from the people of Palm Bay; and this is what the people want. He stated they do not need a survey, so they can save some money on that; the people of Palm Bay want something; but until something serious happens nothing gets done. He stated money is spent to study a problem, study the feasibility and engineering, and then down the road, the implementation is studied; but Palm Bay is the largest city in the County and continues to grow; and the fastest growing area is northwest Palm Bay. He commented on an individual who had an offer to buy and sell land in the area where the parkway is going to be put, money not being there for the project, and putting the project at the front of the line.

Bill Barrett stated he used to live in northwest Palm Bay so he understands what the residents are facing; he has watched the parkway issue continue; but the costs and timeframe to complete the project continue to escalate. He stated today they are talking about limited versus controlled access; a few months ago the question was multimillion dollar interchanges; by doing controlled access, it keeps the cost at a reasonable level; and switching to limited access will increase the costs dramatically while pushing the project further off into the future, and increasing the likelihood that the people who spoke today will never see it built much less drive on it. He stated it is vital for residents in West Palm Bay to have alternatives for reaching US 192, Central Florida, and the rest of the County; and he hopes the Board finds ways to work with the City and the citizens to see that the project is built in a timely fashion and cost effective manner. He stated if the Board continues to push this into the future, it is inevitable that one day there will be a disaster requiring the residents to be evacuated; when the people are sitting in their cars in Palm Bay trying to get out and the storm hits, the devastation will be dramatic; and at that point, everyone will look back and say they should have built the road, but it will be too late. He stated he has been involved in government and politics for most of his adult life; he knows there are a lot of ways to stop a project; and one of the best ways is to love a project to death. He stated continuing to increase the cost is loving the project to death; and recommended everyone work together to figure out a way to build the road in a timely and cost efficient manner. He urged the Board to vote for controlled access and work with the City to find a way to get the road built in less time than the 12 to 15-year projection that is now on the table.

Chairperson Colon stated this area of Palm Bay is inside District 5; and she was a member of the Palm Bay City Council for five years. She stated the community is together on this issue; there may be some issues and differences of opinion on some things; but the City wants to see the parkway. She stated the community has expressed support for controlled access; they have been pretty consistent with that; and even though it is in the unincorporated area of the County, the decisions the Board is making today and the support it will be giving is for the citizens of Palm Bay. She stated this is not anything that Commissioners individually might want, but it is the City and the citizens that the Board is trying to help and give access, so those are the ones the Board needs to listen to. She stated it should be a simple decision; the Board should listen to the residents; and they are saying for it to be controlled access. She noted the Palm Bay and West Melbourne City Councils are in agreement with that; and the Board needs to stay in tune with 55 mph, so this does not become something like Minton Road. She stated the cost factor is something that needs to be considered because the more the Board sits on the issue, the more expensive the land gets; and the MPO has made it clear there is no money for this project. She stated the Board needs to take an even closer look to make sure the project is not more expensive than it should be; and she is just providing feedback on what is happening in South Brevard and the wishes of the residents and both City Councils.

Commissioner Pritchard inquired what is the timeline for this project; with Transportation Planning Director Bob Kamm responding the immediate timeline is to complete the required preliminary engineering study; and the public hearing for the alignment as part of the preliminary engineering study will occur tonight at 5:30 p.m. at Lockmar Elementary. Mr. Kamm stated beyond that point they are using federal funds for the project because there is not local revenue available to implement a project of this magnitude; they are dependent upon the federal process and federal funds; and all federal highway funds are managed and administered by State Departments of Transportation. He stated they work through the MPO with DOT to prioritize projects for State and federal funding; the next phase is design; and at this point the design process is not yet programmed. He stated after that would be right-of-way acquisition and construction, so there are no other committed dollars for the implementation of the project beyond what is being done now with preliminary engineering. He stated because they are dealing with federal funds, the MPO has a certain jurisdiction; the project is so large it needs to be broken up into pieces; at an upcoming meeting, they need to bring back to the MPO a discussion on how to phase the project; and there has been a lot of attention on the Emerson to US 192 section, which could be the first phase that is approached. He advised the implementation cost of the Emerson to US 192 section is approximately $21 million to $25 million depending on the access control type; and if it is broken into pieces, it may be expedited a lot quicker than would otherwise be the case. He stated there is no other program before this project beyond this point. Commissioner Pritchard inquired if there is no calendar or timeline; with Mr. Kamm responding no. Mr. Kamm advised it depends on all the other demands and on the federal allocation which is established by Congress; there is some interest at the federal level about raising the amount of funding that goes to transportation nationally; and if that comes to pass, it may be possible to move projects further, so there are a lot of contingencies that are unresolved, which makes it difficult to give a definitive answer on when this will occur. Commissioner Pritchard stated conceivably it is something that would not happen for the next seven to ten years; with Mr. Kamm advising that is reasonable. Mr. Kamm stated the other way to speed the project is to use local funds; those are not constrained by the same process that the federal government makes them follow; and if there were local funds available, it may be another option to expedite; but the County has a long list of projects that it would like to see done. Commissioner Pritchard stated the Platt family has been well represented; obviously they have concerns, one of which is if the beltway is going to divide their property; and inquired how many underpass access points would be there for the Platt family to get back and forth. He stated in speaking with the Platt family, one of the issues is the sod fields or other fields that are graded to flow a certain way and the project would change the grading and incur additional costs upon the Platt family. He inquired what kind of consideration has the Platt family been given; with Mr. Kamm responding there have been discussions with the Platt family on the potential parkway for many years; they have a good sense of their concerns, issues, and problems; and there have been a number of proposals incorporated in the preliminary engineering study to address those issues. Mr. Kamm advised normally under a roadway there would be culverts to allow water to flow from one side to the other; and it would be possible to install oversized culverts to allow not only water, but equipment and animals to move from one side to the other, so staff understands those issues and had those discussion. He stated this is still in the planning stage; the specifics would be worked out in the design phase; and there is a general understanding and a good sense of the concepts that would work. Commissioner Pritchard inquired if they go for controlled access, how would the number of access points be determined. Mr. Kamm stated the preferred alignment that is coming out the preliminary engineering study calls for access points on the public roads at Malabar Road, Pace Drive, Emerson Drive, US 192, and at the northern terminus at Alice and John Rodes; limited access would have no other access points on the roadway beyond those public roads; and controlled access would allow other access points such as streets or driveways in addition to those public roads. He stated the question before the Board is whether there will be additional ways to get onto the road besides those public streets that are listed; if the Board goes with controlled access, there are several different ways it can be approached in terms of level of control; but it is still predicated on the supposition that there will be access. He advised controlled access assumes there is going to be access at some point; and the question would be how many, how is it regulated, and by whom; but limited access assumes there will not be any access beyond those public roads. Commissioner Pritchard inquired is this a four-lane road; with Mr. Kamm responding it is planned to eventually become four lanes, but the initial construction could be a two-lane road. Commissioner Pritchard inquired what would be the speed limit if it is limited access; with Mr. Kamm responding 55 mph. Commissioner Pritchard inquired about the speed limit for controlled access; with Mr. Kamm responding it would probably be the same to start with, but as driveways, side streets, or other traffic signals evolve, the speed would need to be reduced due to the congestion that would occur as vehicles slow down.

Commissioner Higgs inquired if this was built with federal funds and it were a limited access facility, what would be the County’s obligation to maintain it as limited access; with Mr. Kamm responding the Federal Highway Administration and FDOT have determined that this issue on access control rests with the responsible body, which would be the Board, so the type of access control initially and long-term rests with the Board. Mr. Kamm advised several meetings back there was a discussion about Comprehensive Plan amendment identifying limited access roadways; and staff requested, and the Board granted permission that if the Board chose to make the parkway a limited access road, it would be included in that amendment. He stated at a minimum, any change in the limited access beyond those roads listed would involve a Comprehensive Plan amendment, which is a very formal regulated public process. Commissioner Higgs stated she represents the south end of the County and people in Palm Bay; she is proud to have assisted in building and expanding a number of roads; early in her first and second term she was able to get funded by a 3-2 vote expansion of Minton, Malabar, and Dairy Roads; and those serve the West Melbourne people, so she is proud of having served the transportation needs. She stated there are a growing number of needs in South Brevard County; in serving on the South Brevard Study Group, she found no consensus on many of the solutions except for the parkway; and there was agreement on the need for a high speed roadway to help move people to job centers and other centers of the County from the section of Palm Bay on the west side of Minton Road. She stated in making decisions she tries to do what is best for the citizens in the long-term, what will stand up over time, and will be a good investment of taxpayer dollars; and it is her belief if the road is not built as a limited access road, it will not continue to serve the transportation needs of the people who need a way to move. She stated access at the points outlined by Mr. Kamm are sufficient to serve the transportation needs in the long-term; people want a managed transportation system and a managed growth system to preserve the quality of life; and the best way to do that is to have a limited access road, which is the issue she will support.

Chairperson Colon stated she would like to be able to discuss the issue in regard to the Comprehensive Plan, the kind of decision the Board makes today, and the ramifications and process to change something once it is in the Comprehensive Plan.

Ms. Hann stated the use of the Comprehensive Plan is an excellent tool for controlled access; the same thing can be accomplished through the Comprehensive Plan policies in the County’s and municipalities’ comprehensive plans to deal with the controlled access and gain the level of growth management and access control that would facilitate the same type of circumstance where it would be difficult to make amendments unless there is a good reason to do so; and by doing this now and amending the Comprehensive Plan to state limited access, it eliminates a lot of the flexibility that might be wanted in five or six years from now when design of the roadway starts and there are negotiations with property owners. She stated there may be some circumstances where it would be desirable to provide a small number of access points; and the use of the Comprehensive Plan is appropriate once there is a bit more detail on the design and there has been work between the County and the municipalities to determine the access points. She stated establishing the limited access at this point would be premature and would overly restrict choices once this gets into design.

Commissioner Pritchard stated he agrees with Ms. Hann; and would move to make it a controlled access road.

Motion by Commissioner Pritchard, to make the Palm Bay Parkway a controlled access roadway.

Commissioner Carlson stated she knows the Board has been talking about paying for the parkway with federal dollars; but the one-cent sales tax is going to be out there; and both the Pineda Extension and the Palm Bay Parkway have been in the Comprehensive Plan, but never brought to fruition. She inquired if the County gets the one-cent sales tax, and the roads are built, would there be restrictions if they applied the limited access scenario to it to have to buy the same amount of right-of-way that it would if it were federal; with Mr. Kamm responding yes. Transportation Engineering Director John Denninghoff advised the County could probably do it a little less expensively than FDOT does; he would like to think the County is a little more efficient; and it is not going to be a substantial amount. He advised as far as the referendum is concerned, the level of funding that is projected did not include the entire cost of the parkway. Commissioner Carlson inquired what parts are missing; with Mr. Denninghoff responding he cannot remember the exact amount. Commissioner Carlson stated she thought they were in pieces but if all the pieces were put together, it equaled the parkway; with Mr. Denninghoff responding no, it was assuming the County’s share of the cost, which is 12.5%. Mr. Kamm clarified one of the large expenses with this project is mitigation rather than the cost of the land itself; they are looking at putting a roadway through a non-urban undeveloped area; and there is considerable environmental mitigation that will have to occur. He stated since this is through an undeveloped area, the bar should be set high from the start; and then if it is necessary to come back down, that can be done over time through a regulated public process of the Comprehensive Plan amendment. He stated to come out of the gate saying access is going to be allowed is not in the spirit of what the MPO endorsed in 1998 when it said the parkway should minimize growth management impacts; and taking the conservative approach at this point with a high regulated position may be what the Board wants to consider.

Chairperson Colon seconded the motion.

Commissioner Higgs inquired if the area around the proposed parkway is annexed into one of the adjacent cities, whose Comp Plan will regulate; with Assistant County Manager Peggy Busacca responding after the annexation and the Comprehensive Plan is amended for the city, then the Comprehensive Plan of the city would regulate. Commissioner Higgs stated any Comprehensive Plan policies the Board imposes at this point in the planning could be overridden by the city’s plan and be ineffective; with Ms. Busacca advising that is the process. Commissioner Higgs stated with that in mind, the Comprehensive Plan the Board adopts today will not be the Plan that is likely to be in effect, so that is an important thing to remember; and the limited access roadway is the best chance for preserving a roadway that works, which is the important thing. She stated roadways are for transportation, not to build commercial centers around; she recognizes the pressure there will be on future commissions or councils to allow access; people will want that; and it will be extremely difficult to say no. She suggested looking around the State to try to find roadways that have been built that have not been mechanisms that have allowed for increased development; and advised if the roadways are built, the people will come. She stated the Board cannot deny roadways because there have to be transportation corridors; and the only option is to do it with limited access capability, which is what she will vote in favor of today.

Chairperson Colon stated the Board is not the only one trying to do smart growth; the City of Palm Bay is also intelligent enough to know that is one of the biggest concerns because of the kinds of services that have to be provided, such as fire, police, roads, etc.; and for the Board to think it is the only one to have a sense of what is right for the community would not be right. She stated there are people who do not want that, and are showing it now by replatting and trying to get some of the lots to be one acre or one and one-half acres; they are trying to stop the kind of urban sprawl that everyone is concerned about; so these are not the kinds of things the citizens of Palm Bay want to see. She stated it needs to be clear that the Board is not the only one with those concerns; the City has concerns; there was talk about the things that are best for the citizens of the community; and these are the citizens of South Brevard, not just Palm Bay. She commented on keeping the speed at 55 mph; and stated that is critical to keep people moving, not just for evacuations, but in regard to planning ahead. She stated the community is moving to a population of 250,000; this cannot wait any more; there must be flexibility; and that is why she seconded the motion to be able to have the discussion of it being a controlled access. She stated that will serve the purpose that is needed; it goes to the same vision that the MPO follows; and it is based on the discussions that are taking place on a regular basis every month.

Chairperson Colon called for a vote on the motion. The motion failed to carry; Commissioners Colon and Pritchard voted aye; Commissioners Higgs and Carlson voted nay.

Chairperson Colon stated this will need to come back when Commissioner Scarborough is present, and he will have to decide which way to go.

Commissioner Carlson stated she wants to clarify to the city managers of West Melbourne and Palm Bay; they are both good in terms of the growth management issue; and she supports that kind of representation; but she does not think there are any guarantees with those that are elected to office, which is always a problem. She stated the Board is a different group than 12 years ago when there with issues with the same problem; and she does not know why limited and controlled accesses were not discussed then. She stated she agrees with the philosophical representation of long-term high quality transportation; she will always do that in trying to reduce urban sprawl; and she is concerned that an agricultural entity is being forced to split their property and develop, which the Board has said it does not want to see happen because agricultural interests are important to the long-term viability of the community and the quality of life issues the Board has been trying to protect. She stated she still agrees that limited access is the way to go; and hopefully when Commissioner Scarborough returns he can break the tie.

Chairperson Colon stated other things that have been talked about in regard to the agricultural community can be said in regard to Viera; Viera is an agricultural community; and suggested the Board look at what it has done to Viera based on the concept of looking ahead and having vision. She stated these are the kinds of things that need to be looked at Countywide; if the big concern is development and urban sprawl, this is what it is really about; and the conversation is starting to head towards stopping growth. She stated it is not a matter of limited or controlled access; it is a matter of Commissioners being afraid of growth; and that has been said by the citizens of the County. She stated the more expensive and difficult the Board makes it to build the road, the longer it will take for the road to become a reality; and that is what the folks from South Brevard are concerned about. She stated if anyone thinks that because the road is not built that it will stop growth, that is not the case; and the Board should create something now that is going to allow folks to have access. She stated Viera is a perfect example; folks in Viera have to be able to move from north to south; there is even the possibility of an access by Lake Washington; and inquired how is that any different from what the folks in Palm Bay and West Melbourne want to do. She stated it is the same concept, moving traffic from the south part of the County north, and vice versa; and these things need to be applied across the board and not just for one part of the County. She stated if the Board is making those decisions, then it needs to be fair to all; Commissioner Scarborough will be present at the next meeting on September 30, but that is a full agenda; and it would be best to bring the issue back at the first meeting in October to discuss it one more time.

Commissioner Higgs stated the population in 20 years will be close to a million people; so the idea of stopping growth is unlikely to be the reality; and the goal is to make growth a quality growth that would assume some of the costs for itself. She stated the Board has to preserve and protect some important areas; the Viera DRI that was approved actually cut the number of potential homes in the area; and it did not increase the potential. She stated when she got on the Board when Viera West DRI was proposed, it decreased the number of units that were already zoned there; and she realizes that the Viera growth has taken off, but it should be recognized that approval of the DRI was a decrease. She stated it also should be recognized that the CDD and other mechanisms paid for the road through the DRI; and those are important differences to some of the issues that are before the Board. She recommended the Board look at all the needs of the community to try and plan for the long-term future, and make sure the transportation dollars give the best transportation possible. She reiterated millions of people are projected in the Comprehensive Plan; and that is what the Board needs to plan for.

PUBLIC HEARING, RE: ADOPTION AND SUBMITTAL OF 2003A COMPREHENSIVE PLAN
AMENDMENTS AND ADMINISTRATIVE REZONING PLANNING AND ZONING BOARD
RECOMMENDATIONS OF SEPTEMBER 8, 2003 FOR 2003A PLAN AMENDMENT

Chairperson Colon called for the adoption and submittal of 2003A Comprehensive Plan Amendments and Administrative Rezoning Planning and Zoning Board recommendations of September 8, 2003 for 2003 Plan Amendment. She passed out questions that she asked yesterday of the different departments; stated she wanted to bring those to the Board’s attention; and they deal with Items VI.B1, VI.F.2, and VI.F.6.

Planner Todd Corwin stated Items IV.H and IV.I are closely related; IV.I deals with the adoption and submittal of Comprehensive Plan Amendments; and per Statute, those items should be heard prior to the administrative rezonings.

Brian Fletcher stated he is here concerning the binding development plan of Viera Boulevard Joint Venture for things east of Holiday Springs; up until three weeks ago, he had a good understanding, after meetings and discussions with the developer, that the developer would consider adding a 51-foot buffer around the perimeter on the east side of the development after the 25-foot common property of Holiday Springs; but it is his understanding that the latest binding development plan came back without that part of detail added; and requested the Board consider documenting that so it is understood and not just a verbal agreement that the developer will do that. He submitted a map to the Board, but not the Clerk, showing his property on Bronco Drive; and stated to the east and north of his property is an added buffer that is a six-foot opaque buffer. He stated on the plan before the Board the buffer is actually on the common property; that is incorrectly drawn; and he would like to think the buffer could be moved more east and north of its drawn location. He stated it says the buffer in this area shall be opaque to a height of six feet; their property is three or four feet below his property; adding a six-foot buffer will be approximately waist high; and this looks directly into the cul-de-sac that is going to contain quite a bit of traffic once the area is fully developed. He requested the Board’s consideration to have that added to the binding development plan as well. He advised three weeks ago, he and his wife had to leave their house in a hurry; they had a confrontation with a surveyor who was rude; and he ordered him from his property. He stated when they came back, a path had been cut through his property over the common property into the Viera Boulevard Joint Venture property; and advised of phoning Ron Smith and various surveying companies, Mr. Smith’s admission that his surveyors must have cut the path, and his replacement of a bush and one tree. Mr. Fletcher stated Mr. Smith said he would fill in the rest of the property that had been destroyed; he has taken it to the Property Owners Association lawyer who is pursuing it; and that is why he is asking that the 51-foot buffer, which Mr. Smith verbally promised to do, be explained in more detail around the two pieces of property at the corner where Bronco Drive turns at a right angle.

Commissioner Higgs requested staff advise which Comprehensive Plan amendment this is and how it fits. Mr. Corwin advised the item that Mr. Fletcher spoke to is more associated with an administrative rezoning; and the Comprehensive Plan Amendment in this area is 038.2, a change from heavy/light industrial to planned industrial. Mr. Corwin stated the associated administrative rezoning is proposed from light industrial with a binding concept plan (BCP) to planned industrial park with no BCP; the buffer that Mr. Fletcher has spoken of is shown on the plat; however, the proposed administrative rezoning does not contain that binding concept plan. He stated staff proposed it because it was a decrease in intensity from light industrial to planned industrial park; and if the Board wishes the BCP to remain with the property, the item would have to be readvertised with the change from heavy/light industrial with the BCP to planned industrial park with the BCP.

Commissioner Carlson stated where it says current zoning it says with the BCP, and the developers did agree on the buffer. Mr. Corwin responded it is shown on the plat; however, after talking to Mr. Washburn, the plat could be re-recorded and in terms of the buffer, there is nothing on the plat that would provide the same protection as the BCP. Commissioner Carlson inquired if staff agrees that the developer agreed to sustain the buffer. Commissioner Higgs stated it is part of the BCP. Planning and Zoning Director Mel Scott stated if the desire is to make sure the buffer occurs, it would be staff’s recommendation that it be readvertised so it goes from heavy/light industrial to planned industrial with the BCP remaining intact.

Commissioner Higgs inquired which one is that; with Commissioner Carlson responding it is number A.2. Mr. Corwin advised that is the Comprehensive Plan Amendment; and on the Administrative Rezoning Agenda it would be 2, 4, 6, and 7.

Commissioner Carlson inquired if staff can answer Mr. Fletcher’s question regarding the map and the corner of the subdivision in relationship to the property in question. Mr. Corwin stated Mr. Fletcher submitted a copy of the actual plat, which shows the buffer; and the other issues dealing with the opaque buffer and other such requirements should be dealt with at the site planning stage. Commissioner Carlson stated that will be dealt with at the site planning stage, so the only thing the Board needs to deal with is making sure the concept plan is attached to the PIP so everyone is happy.

Commissioner Higgs noted there are three other speakers; but she assumes they are on the same thing; and the Board can deal with Comprehensive Plan amendment A.2 and administrative rezonings 2, 4, 6 and 7.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct that Comprehensive Plan amendment A.2 and administrative rezonings 2, 4, 6, and 7 be readvertised. Motion carried and ordered unanimously.

Commissioner Carlson stated once it is advertised correctly it will come back with the attachment of the binding concept plan so the buffer will be established.

Bob Peltz, representing the Springs of Suntree Homeowners Association, stated the homeowners of the Springs of Suntree endorse the change in zoning from IU to PIP; after a meeting with Chairperson Colon, they developed an amicable relationship with the developers; and the Joint Venture Group has indicated it is receptive to the 71-foot naturally vegetated buffer between its development and the residential area as indicated on the original binding development plan. He stated that was the plan that was the so-called Bonaventure Industrial Park that was zoned approximately 20 years ago; the vegetated buffer will reduce expenses for the developer, minimize construction time, noise and dust, and so forth; and it will serve as a wildlife corridor, noise barrier, and security zone. He stated it is going to dissipate storm runoff, help meet the canopy requirement, and help maintain the aesthetics of the area, so this is a win-win situation. He stated they have met with and corresponded with the developers; and the developers are agreeable to the 71-foot vegetated buffer. He stated when the Comprehensive Plan came back from Tallahassee, Mr. Corwin indicated the buffer that was on the original plan was no longer there; their main concern is not so much with the developer as with future problems because when the individual parcels are sold the new owners will not necessarily be bound by anything; and they could encroach on the buffer under the guise of economic hardship. He requested the Board investigate the possibility of mandating this type of buffer, not only for their area, but for some other areas as well; and stated their real concern now is that there is nothing binding on future owners of the property even though the developers and homeowners are currently in agreement. He stated his wife distributed paperwork; and described the submittal. He advised the last three pages are pictures he took yesterday that show the area as it is now; requested the Board visualize the same area with no trees; and stated the Board can see their concern. He urged the Board to see what it can do about mandating the type of buffer zone that would be advantageous to everyone.

Commissioner Carlson stated that is what the Board tried to do; it has to go back to be advertised correctly to include the binding plan to include the buffer for all the properties, so when the administrative rezoning comes back it will be PIP with a BCP attached. She noted any individual can come in and try to change that; and it will be part of the plan and the rezoning and should not be a problem.

Mr. Peltz inquired if this counts as a rezoning; with Commissioner Carlson responding this is administrative rezoning; planned industrial is a better type of zoning for the people than it was previously; and the developers were very obliging about keeping the buffer, but advised they would be selling off parcels. She stated she knows that was a concern for the residents; that is why they have the binding concept plan currently attached to the IU; and staff did not put the binding concept plan in the PIP because it was a reduction in land use intensity, which was a net benefit to everyone. She stated it goes without saying that the residents’ interests will not be kept in place if that is not included; and she does not have any problem with them readvertising and bringing it back. She stated the developers do not have a problem either, so it should be okay next time around. Mr. Peltz stated unfortunately none of the developers are present now; he does not think they anticipated any problems; and he hopes they are completely amenable to what they indicated verbally. Commissioner Carlson stated their issues were dealt with at the previous meeting.

Chairperson Colon stated there is nothing wrong with staff calling the developers to make sure everyone is on the same page; and it is good that Mr. Peltz came forward because then it goes with the property and not just the owner. Mr. Peltz stated that is what they would like to see.

Jane Peltz stated they have been working on this for over three years; the binding development plan on the map is 20 feet of vegetation and a swale, which would wipe out the trees; they do not want that binding development plan and they want the one they agreed to with the developers for all natural vegetation. Commissioner Carlson stated they can make that clarification; and inquired if that is what it says on the concept plan; with Commissioner Higgs responding no. Mr. Corwin advised the actual binding concept plan does refer to a retention area and a vegetated buffer area; it does not refer to that area being natural vegetation although that is minimal; the property owner is bound to that particular buffer; however, they can put something less intensive if they would like to do so. Chairperson Colon suggested bringing all three parties together. Commissioner Carlson stated in the discussion, they were not intending to do the swale and all of that stuff; each property would be a little different; but there would be a buffer; and she does not know how it can be made any different than that in terms of changing the language based on their commentary. Commissioner Higgs stated it would only be if they were here with it in writing; and it is a whole new rezoning; but it can be done administratively.

Commissioner Carlson stated they can advertise it with the attachment and then clarify the details prior to the next meeting. Mr. Scott stated staff will do its best to put that together; the property owner will have to voluntarily agree, so it would be necessary for him to be at the meeting; and staff will consult with the attorneys to make sure this idea is given the best possible chance for success.

Mr. Peltz stated the developer already agreed to it; but after having an altercation, they think it would be better to be done official and legally in writing. Commissioner Carlson stated there should not be any problem because the developer seems to be amenable to working with the residents.

Chairperson Colon stated Mr. Scott is going to make sure the three parties come together; and they want it in writing.

Joanne Fletcher stated she has concerns about the opaque barrier of six feet in height; and inquired what will it consist of. She stated the area is right behind her home; she is worried about the noise, lights, and anything else that will change the present environment; there are all kinds of wildlife in the area; and she has accepted that this is changing, but would like to know what the barrier will actually be. She stated “opaque barrier” is a broad term; and she wants to know what it will be. She stated at first she thought the developers were very nice, but they were not nice to her; and up to this point, she trusted them, but now she wants everything in writing.

Lee Feldman, Palm Bay City Manager, stated he is here today to raise an objection to the adoption of Comprehensive Plan Amendments to Policy 12.6 of the Future Land Use Element; he is specifically referencing the language drafted on May 2, 2003, which was transmitted to the City of Palm Bay and other cities; and their objections are limited to the water system facilities and some related changes, but not to the changes pertaining to school site development. He stated before he begins enumerating specific objections, he would question the Board’s need to address this issue in this manner in this forum; the Future Land Use Element to the Comprehensive Plan already adequately effectuates a policy regarding the siting of water system facilities; specifically Objective 5 provides that the County shall provide for adequate lands to meet the existing and future needs for public facilities and service consistent with the County’s Capital Improvement Program and Comprehensive Plan; and locational criteria for public facilities are established in Policy 6.2 of that Objective. He stated under Criteria A, potable water systems managed by government entities are included within the scope of public facilities; and the legislative intent of this action is not clear. He stated if the intent is to begin to regulate the construction and operation of municipal water systems operating in unincorporated Brevard County, that action is in conflict and is inconsistent with other policies of the Comprehensive Plan, specifically Chapter 6, Potable Water, Objective 4, Policy 4.3, which states that the County promote cooperative efforts with other governmental entities for the planning, implementation, and management of water resources and supplies. He stated Chapter 12, Intergovernmental Coordination Element, Objective 1, Policy 1.6, requires the coordination of potable water resources with the St. Johns River Water Management District and the Brevard Water Supply Board; and he does not believe that has been done regarding the proposed change. He stated Policy 3.2 provides for an interlocal agreement; the Comprehensive Plan Amendment is the appropriate vehicle to address issues of facility service areas and the level of service; and the need rationale and legislative intent are not present for this change. Mr. Feldman stated the proposed amendment is not in the spirit of the policy, which it seeks to modify; the significant aspect of the amendment is to add criteria to the policy; the original criteria created specific measurable standards to evaluate the placement of public facilities for the purpose of concurrency and levels of service; and the proposed criteria as it relates to water service facilities does neither. He stated the proposed amendment is ambiguous and technically deficient; and the amendment is not before the Board properly today. He stated on May 6, 2003, the Board withdrew this amendment from the proposed transmittal package to the DCA; Chapter 163.3184, F.S. governs the process of adoption of Comprehensive Plan amendments; this is the only public hearing on this amendment; and Chapter 163.3184, F.S. requires two public hearings. He stated the State Land Planning Agency and the St. Johns River Water Management District have not had an opportunity to comment on this transmittal; and today’s action is an attempt to circumvent the process set forth in the Statutes and avoid a meaningful intergovernmental policy formulation. He stated the amendment is ambiguous; and inquired what are the water system facilities, what makes a facility regional, what is major, and will the amendment be applicable to siting of new treatment facilities, new wells, new transmission lines, and to the resizing of facilities and transmission lines. He stated Map 13 depicts major water supply facilities, but does not depict the treatment, storage, and transmission facilities that are referenced in the Comprehensive Plan Amendment. He stated the amendment lacks specific criteria; and inquired what criteria will be employed by the Board of County Commissioners in the review and approval process, and where are or will the criteria be enumerated. He stated by adopting this amendment, the Board is adding a section F to the criteria; and requested the Board look at the difference between what has been done in the past by the Board in terms of specific criteria and what is being done today. He stated the amendment seeks to create a technical code by referencing installation in the proposed language; it appears the County wants to utilize the Comprehensive Plan and Land Development Regulations as a technical code, which is clearly beyond the intent of the applicable statutes; and inquired when will the installation guidelines be promulgated or adopted. He stated the amendment is speculative in nature; it broadly requires implementation of future Land Use Development Regulation to implement the Comprehensive Plan Amendment; and inquired how far is the Board going to go with this. He stated recently the Board adopted a Water and Sewer District Ordinance, which governs the water supply issues in incorporated Brevard County; certain municipalities were recognized as having certain existing service areas including portions of unincorporated Brevard county; and if the amendment impairs that grant to service or requires additional costs in dollars and time in order to fulfill that grant of service, the city would object to the amendment, and under the ordinance, any other contract, interlocal agreement, and court settlement would be impaired as well. he urged the board to reject the adoption of the proposed amendment.

Commissioner Higgs inquired if staff followed through with the necessary advertisements regarding the Comprehensive Plan amendment; with Mr. Scott responding affirmatively. Mr. Scott advised there have been numerous occasions when amendments have been added in the twice per year amendment cycle; staff has simply notified DCA that this is a previously unreviewed amendment; and DCA has informed staff in the past that there is a risk involved with that in that the Board will not benefit from the ORC Report. Commissioner Higgs inquired if there are other municipalities doing the same thing or is this a policy that DCA is just letting Brevard County do; with Mr. Scott responding he would never speculate that DCA is cutting the County some slack. Commissioner Higgs stated questions were raised; and suggested deleting the terms “regional” and “major” to take out the ambiguity in 12.6.3 while having the same effect. She stated they have complied with the law; this should move forward; and suggested deleting “regional” and “major.”

Commissioner Pritchard stated Mr. Feldman had more questions that need to be addressed. Chairperson Colon stated she does not know if they are going to be answered today; and inquired if it is possible to table the item. Commissioner Pritchard stated the Board may want to table this; perhaps Mr. Feldman could provide his narrative in writing and Mr. Scott can respond to it; and the Board can find out exactly what the answers are to Mr. Feldman’s issues.

Motion by Commissioner Pritchard, to request Mr. Feldman to submit his questions in writing; and direct staff to respond to the questions.

Commissioner Higgs stated they do not like the amendment or the Water Service Area Ordinance, so they do not want anything that impinges on what they feel to be their water system operation; all the amendment says is that the water facilities that have treatment, storage, and transmission in the unincorporated part over which the Board has jurisdiction should be reviewed, approved, and installed in accordance with the Comprehensive Plan.

Chairperson Colon stated there is nothing wrong with tabling it. Commissioner Carlson stated she does not have a problem getting answers. Mr. Corwin advised this is the adoption phase of the amendment; once staff receives the Objections, Recommendations, and Comments Report, there is a 60-day timeframe in order to have it adopted, if the Board is not interested in adopting it today; and recommended the Board insert it in the next amendment cycle, which is proposed for transmittal on November 4, 2003

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table consideration of Comprehensive Plan amendments to Policy 12.6 to November 4, 2003.

Chairperson Colon suggested Mr. Feldman contact her office to get some of the answers.

Mr. Corwin stated there are several other amendments and policy amendments within the package; three deal with land use changes in the Viera/Suntree area; and three others are amendments to the Conservation, Coastal Management, and Future Land Use Elements.

Commissioner Pritchard stated over a week ago he asked for a boating activity study that was produced in the early 1990’s; he has not received a copy of the study; he wants an opportunity to review and check on the significance, verification, and accuracy of the study as it is being used to drive policy in the amendment; and proposed tabling this until the November meeting.

Commissioner Higgs inquired are these not the Manatee Plan Comprehensive Plan amendments that the Board adopted when it adopted the Manatee Plan; with staff responding yes.

Commissioner Pritchard stated these were based on some of it; he has not received a copy of the report; and he would like to be able to review it and test the accuracy of it. He requested the Board wait until November and have it included in that package so he will have ample opportunity to make sure of the accuracy of the information.

Motion by Commissioner Pritchard, to table III.A.7 for submittal in November. Motion died for lack of a second.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County; entitled “The Comprehensive Plan”, setting forth Plan Amendment 2003-A; amending Section 62-501, entitled Contents of the Plan; specifically amending Section 62-501, Part I, entitled the Conservation Element; specifically amending Section 62-501, Part XI, entitled the Coastal Management Element; specifically amending Section 62-501, Part XIII, entitled the Future Land Use Element; and specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered; Commissioner Pritchard voted nay.

Mr. Corwin advised there are two administrative rezonings associated with this item to be considered today; they are items 1 and 3; and the rest will be brought back after they are readvertised. He stated Item 1 was associated with the Plan Amendment that changed the land use from heavy/light industrial to public facilities; the change is for Florida Inland Navigation District site; and the proposal is to change the site to government managed lands-high intensity in accordance with the proposed use.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item 1, Section 26, Township 25, Range 36, Parcel 253, and Item 3, Section 36, Township 256, Range 36, Parcels, 789, 790, and 791, as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

LETTERS TO U.S. FISH AND WILDLIFE SERVICE AND FLORIDA INLAND NAVIGATION
DISTRICT, RE: MANATEE SPEED ZONE SIGNS AND DOCK PERMITS

Assistant County Manager Stephen Peffer stated the issue of the permitting of docks was brought to the Board by Steven Webster; in the course of that discussion he requested the Board support the issue of getting docks permitted through the federal agencies in a more expeditious manner; and the Board suggested staff prepare a draft letter that would be sent out to the U.S. Fish and Wildlife Service regarding that issue. He stated staff has listened to the tape of the meeting to try to capture the Board’s intent; and they have prepared a draft, which is Attachment A in the package. He stated subsequently staff received a draft from the District 2 Commissioner, and have included that language for the Board’s consideration. He requested the Board select one of the options or provide staff with further direction on the language it would like to see in the letter.

Sandra Clinger, representing the Save the Manatee Club, stated she has spoken with the U.S. Fish and Wildlife Service and has confirmed with the Army Corps of Engineers that U.S. Fish and Wildlife Service has completed consultation with the Army Corps of Engineers and has forwarded the biological opinions to the Army Corps of Engineers concerning the outstanding projects in Brevard County; they have conditioned the permit issuances on the completion of adequate signage in the County; and the onus remains on the Florida Inland Navigation District. (FIND) She stated if the Board decides to go forward with this item, it should forego sending moot letters to the U.S. Fish and Wildlife Service at this time since it has moved forward with the process; and if the Board still feels a need to contact an agency to expedite the process, it should contact FIND, which would be Attachment C; and she supports going forward with Attachment C.

Commissioner Pritchard stated he does not have a problem sending a letter to FIND; but they should not hold up releasing dock permits until all signage is in place. He stated the staff draft, Attachment A, says the Board requests that when proper signage is in place, U.S. Fish and Wildlife Service should expedite the consultation so dock permits can be released; no one knows how long that will take; this is talking about people, business, and property rights; and nowhere has it been shown that docks kill or harm manatees. He stated he wrote Attachment B, which says, “the Commission therefore resolves the following permits held by U.S. Fish and Wildlife Service should be released immediately.”

Motion by Commissioner Pritchard, to authorizing sending Attachment B.

Commissioner Pritchard stated he does not consider it a moot issue; it is necessary that the community inform U.S. Fish and Wildlife Service that holding permits hostage because of some alleged relationship is the same as he has mentioned before, which saying that if it was not for having a garage, one would not have a car, and if one did not have a car, one would not have had an accident. He stated docks do not kill manatees; and not everyone who builds a dock has a boat.

Commissioner Higgs stated it would be useful to send a letter to Mr. Roach.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Attachment C; direct staff to prepare a letter for the Chairperson’s signature to David Roach, Executive Director of Florida Inland Navigation District, concerning manatee speed zone signs and dock permits; and authorize the Chairperson to send such letter. Motion carried and ordered unanimously.

Commissioner Pritchard inquired if anyone is willing to second the motion on Attachment B. He stated it is a letter to David Hankla with U.S. Fish and Wildlife Service; and the Board should not rely on their willingness to release permits at any time certain; but the Board can rely on the businesses that will be going out of business because of their ineffective way to manage what they should be doing.

Chairperson Colon seconded the motion to approve Attachment B.

Commissioner Higgs stated she would support Attachment A, which expressed concern about expediting the permits. Commissioner Pritchard stated Attachment A says they are supposed to hold up the permits until proper signage is in place, so that would not do any good; and if Attachment A was changed so that it reads, “permits held by U.S. Fish and Wildlife Service should be released immediately,” he could support A; but the issue is releasing permits. He reiterated many people build docks who do not have boats.

Chairperson Colon inquired if the Board has a problem with adding that wording; with Commissioner Higgs responding yes.

Motion by Commissioner Pritchard, to approve Attachment A with the last line changed to, “permits held by U.S. Fish and Wildlife Service should be released immediately.” Motion died for lack of a second.

Chairperson Colon inquired if there could be another wording the Board would be comfortable with; with Commissioner Higgs responding she is comfortable with Attachment A, if the Board is going to send a letter. Commissioner Pritchard stated Attachment A does not say anything. Commissioner Higgs stated the Board does not have to send anything. Commissioner Pritchard stated if the letter is not going to say anything, he agrees because he does not want to send a letter thanking U.S. Fish and Wildlife Service for holding up dock permits.

The meeting recessed at 4:12 p.m. and reconvened at 4:24 p.m.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: SIGNIFICANT ENVIRONMENTAL
AREAS ORDINANCE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a significant environmental areas (SEA) ordinance.

Commissioner Carlson stated she would like comment on what is planned between now and the first public hearing on this SEA ordinance; Mr. White and his staff have been working hard on this; but they still expect to do more community involvement.

Natural Resources Management Director Conrad White stated if the Board grants permission to advertise, staff will endeavor to conduct several public workshops during the evening hours over the next six weeks to involve as many citizens in the process as possible; and they also will bring the draft ordinance before the Building and Construction Advisory Committee and the LPA prior to the two required public hearings during the adoption process. He stated with the workshops held on September 8 and 9, 2003 and having the draft ordinance on the website, they have maximized citizen input as far as they can.

Chairperson Colon inquired how many meetings with constituents does Mr. White foresee having before it goes to the Building and Construction Advisory Board. Mr. White responded he would hope to work with each of the Commission offices to set up meetings in each District; with Chairperson Colon advising that would be great.

Commissioner Carlson suggested staff also approach the Leadership Brevard Board with the Brevard Tomorrow groups; stated there are five groups, which are all diverse, working on the various action plans for Brevard Tomorrow; and especially the Land Use and Growth Group, which is made up of approximately 28 members, would appreciate this presentation. She stated a good portion of each group has already been involved in the process of getting feedback; and they talked to a lot of people in the community and the community leaders. Mr. White stated they will do that.

Chairperson Colon requested Mr. White advise how well the workshops went. Mr. White stated staff advertised the workshops and put out flyers to approximately 150 potential participants; they also sent out letters including the flyers to the municipalities to try to get their planning committees to attend; and the first one on September 8, 2003 was attended by 20 to 25 people. He stated a good section of his staff was there to supply support; and there was a workshop the following day at which there were approximately 30 participants. He noted staff has a list of the participants that can be made available to the Board if the Board desires.

Chairperson Colon advised there is a motion for approval on the floor; and requested those in support please stand. A group of people stood in support of the motion .

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

PERMISSION TO SCHEDULE, RE: BUDGET WORKSHOP AND EXECUTIVE SESSION

Commissioner Higgs stated she put this on the Agenda so the Board would have an opportunity to talk further in a workshop format about the budget; Commissioner Scarborough is not present today; and requested the Board consider asking the County Manager to work out an opportunity for the Board to meet before the Budget hearing to discuss some of the issues.

Chairperson Colon stated the Budget hearing is on Tuesday; and inquired if Commissioner Higgs is talking about the previous Thursday.

Commissioner Carlson inquired if there is support for having a workshop; stated personally if there are any issues that need to be brought up, they can be brought up at the last hearing; and she does not want to spend a lot of time on something that is not going to be supported. She stated she will not support anything different than what is in the budget currently; and she does not want to see it reduced any more. She stated there are some good ideas in the memorandum; she appreciates Commissioner Higgs doing that; but she would have appreciated it more if it had happened a few months ago so there would be time to really look at it before passing the tentative budget. She stated on October 1, the Board needs to deal with a lot of the issues; and at this last hour, she cannot support working for three hours in a budget workshop to come up with something that may not have any support, so she will not support the motion for another workshop.

Commissioner Pritchard stated he would support another workshop because he does not want to show up on Tuesday with a lot of last minute deadlines and feel his arm is being twisted with no opportunity for discussion; and recommended setting aside two or three hours this week to go over some of the points.

Chairperson Colon inquired if the Board would be comfortable meeting on Thursday at 1:00 p.m. Commissioner Pritchard noted there is a Value Adjustment Board meeting at 1:00; and suggested 2:00.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to direct the County Manager to set up a workshop on Thursday, September 18, 2003 at 2:00 p.m. Motion carried and ordered; Commissioner Carlson voted nay.

Chairperson Colon inquired if it would be possible for the Commissioners who would like to have some discussion to send something to Mr. Jenkins ahead of time so staff could be working on some figures. Commissioner Pritchard stated that is what is in the letter he just sent out.

County Attorney Scott Knox requested the Board schedule an executive session on Thursday. Commissioner Pritchard suggested holding it before the workshop; with Chairperson Colon stating it would be held at 1:45 p.m. on Thursday.

Commissioner Pritchard thanked Mr. Jenkins for providing some insight into other areas of the budget that could be explored; stated he received that yesterday and had a chance to go through it and make some comments on it; and he would be using that as well as what he submitted today. Commissioner Higgs stated she sent a list to Mr. Jenkins last week; everyone should have received staff’s response in terms of dollars on those issues; and an additional memo came regarding the effect of putting the actual pay raises into the Constitutional Officers budgets so there would be an accurate reflection of their requests. She stated if there is anything else, she will get it to the Commissioners before Thursday.

Chairperson Colon stated the Board wants to have a productive meeting with the numbers it needs; and it would work well to get those ahead of time.

WARRANTY DEED FROM H&M REAL ESTATE, RE: ROAD RIGHT-OF-WAY FOR
FLORIDA BOULEVARD

Transportation Engineering Director John Denninghoff stated the item is acceptance of a road right-of-way deed that was required by an approved site plan.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept a Road Right-of-way Deed from H&M Real Estate for the property located at the northeast corner of North Courtenay Parkway and Florida Boulevard for realignment of Florida Boulevard. Motion carried and ordered unanimously.

SANITARY SEWER EASEMENT FROM H&M REAL ESTATE, RE: NORTHEAST CORNER
OF NORTH COURTENAY PARKWAY AND FLORIDA BOULEVARD

Transportation Engineering Director John Denninghoff stated at the request of the County Attorney’s office a revision to the easement document was completed; and read the change, “the first party does hereby covenant with the second party that it is lawfully seized and possessed of the lands above described and that it has a good and lawful right to convey it or any part thereof and hereby fully warrants title to said Easement and will defend the same against the lawful claims of all persons whomsoever.” He stated the grantor of the easement is warranting that they have good title to the property and will defend the County in the event someone challenges that.

Commissioner Pritchard inquired how would something like this be warranted; with Mr. Denninghoff responding the usual means is through a title insurance policy; and the title company would defend. Commissioner Pritchard inquired if this is something the Board would be seeking every time an easement is conveyed; with Mr. Denninghoff responding anytime the County is accepting an easement that is to the benefit of the grantor, the Board would want something of this nature. Mr. Denninghoff stated if it was to the benefit of the County that would raise a different question. Commissioner Pritchard stated that would cause the grantor to spend additional money; with Mr. Denninghoff responding that is correct, but in this case the developer has a title policy, so the cost is nominal. Mr. Denninghoff stated if it was someone who did not already have the title policy, then the cost would be more significant. Commissioner Pritchard inquired if requiring a title policy on an easement could cause someone to have second thoughts about conveying an easement; with Mr. Denninghoff responding in this case, he does not believe so, but in the case where someone was approached by the County, it could. Mr. Denninghoff stated in this case, the developer already signed the easement and it is ready for acceptance; and he does not believe this would be an impediment to new development. Commissioner Pritchard inquired if this is setting a precedent for all future easement transfers; with Mr. Denninghoff responding it could be a subject of concern for donations requested by the County.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept an Easement for a sanitary sewer located on the northeast corner of North Courtenay Parkway and Florida Boulevard from H&M Real Estate. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH CAPRON RIDGE, L.L.C., RE:
ST. PATRICK PUD

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to execute Binding Development Plan Agreement with Capron Ridge, L.L.C. for St. Patrick PUD. Motion carried and ordered unanimously.

PERMISSION TO SIGN LETTER AND CONTRACTS WITH DEPARTMENT OF CHILDREN
AND FAMILIES, RE: COMMUNITY BASED CARE, COMMUNITY PARTNERSHIP
MATCHING GRANT

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute invitation of the Palm Beach Children’s Services Council and member agencies of the Florida Coalition of Children Service’s Council to partner as a subcontractor in order to maximize the drawdown of $2,000,000 in matching funds; and authorize the Chair to execute contracts with the Department of Children and Families and other subcontractors contingent upon approval of Risk Management and the County Attorney’s office. Motion carried and ordered unanimously.

BUDGET CHANGE REQUEST, RE: EXCESS SHERIFF’S GENERAL FUND REVENUE FOR
PURCHASE OF VEHICLES

Deborah Barker, Sheriff’s Finance Director, stated she is available to answer questions; the item was pulled from the Bills and Budget Changes; and it is asking for $275,000 of the Sheriff’s General Fund to be used for the purchase of cars at year-end. She stated during the budgeting process, the Sheriff gets money from the County and also has his own revenue sources; and approximately $3.3 million in different types of revenue comes in each year. She stated the Sheriff’s office forecasts revenues and expenditures; and the money that is brought in offsets the amount of money that the taxpayers have to pay toward the General Fund. Ms. Barker stated as they get toward the end of the year, they have a few revenue sources that came in higher than expected; it looks like they are going to have approximately $300,000 higher than expected in the Sheriff’s General Fund revenues; and requested to take $275,000 to buy vehicles. She stated one of the items that came in higher than expected was $200,000 from restitution; three budget years back, the Board worked with the Sheriff to hire a restitution accountant to follow up on the cost of investigation fees and restitution costs for people when they got arrested; this was one of the revenue sources that was held up by the Clerk’s office; they went two or three years getting very little revenue; and this is a catch up of $200,000 in restitution. She stated another revenue source is $60,000 in sale of fixed assets, which is the sale of cars that are wrecked or beyond use at County auction; and advised cars are starting to drop like flies. She stated the third revenue source is false alarm fines; and that money has exceeded projections because the Clerk’s office is catching up after a couple of years. She stated they do not know what the revenues and expenditures will be until the very end of the year; and that is why she is bringing this up at this time. She stated they are expecting $300,000, but are only asking to use $275,000 because they want to keep a cushion in case they do not get exactly what is expected. She advised this could have turned the other way; in some years it has and they have not realized all the revenues they anticipated; and when that happened, they had to cut expenses.

Chairperson Colon stated last week Ms. Barker mentioned she would probably have to come back to the Board for $240,000 for the jail; with Ms. Barker advising that is next year. Chairperson Colon inquired what was that for; with Ms. Barker responding that was $248,000 for the food contract and $79,000 for the catastrophic insurance for the 2003-2004 budget. Chairperson Colon inquired if the Sheriff is able to use this money for anything he sees fit; with Ms. Barker responding yes, for any General Fund expense. Chairperson Colon inquired if the Sheriff could apply the $275,000 to the $240,000 that he needs; with Ms. Barker responding they are closing fiscal years now, and if they are not allowed to use this now, they will roll it over at the end of the year. She stated she is obligated by Statute to cut a check to the County for excess cash carry forward for revenue funds; if she does not use the money for cars or another use, she will come to the County on October 31 with a check for the excess revenue in the MSTU and the excess revenue in the General Fund. Chairperson Colon inquired if this is money the Sheriff did not anticipate having; with Ms. Barker responding yes, the revenue sources came in higher than anticipated. Chairperson Colon inquired if the Board does not approve this, and the money comes back to the County, could the Board allocate that money to the $240,000 that is needed. Ms. Barker responded that is something the Board could do; but advised of the car problem.

Commissioner Pritchard stated the money could be allocated toward vehicles; with Ms. Barker responding it is General Fund income so it could be allocated to any General Fund expense. Commissioner Pritchard stated it could be allocated to the Aggressive Driving Enforcement and Mobile Breath Testing Programs that are coming up under Item VI.F.1. Ms. Barker stated that is a grant that is going to bring in over $500,000 for the County. Commissioner Pritchard stated the County General Fund match is $109,000 for one and $55,000 for the other; with Ms. Barker responding the County does not need money for this grant; they are completely self-funded positions; and the only money needed is the very first local match of $4,920, which is not included in her budget. She stated they will get DUI funds; so this money is not needed for those positions; but it can go for any General Fund application. Commissioner Pritchard inquired if Ms. Barker is talking about patrol cars. Ms. Barker advised she is talking about Crown Victorias; the Sheriff’s fleet director was at an FSA convention and was able to talk to the vendors who make all the vehicles for the Sheriff’s agencies in the State; with cash in hand they will be able to get 2004 models; and the funds are obligated for patrol cars. Commissioner Pritchard stated cars are listed as one of the items under the one-cent sales tax; it is always cars; up until now there has never been another way to fund them except by coming to the Board or the one-cent sales tax revenue; and inquired if this revenue is going to be generated annually. Ms. Barker stated the General Fund budget is $52 million; the amount the County pays from the tax dollars is $49.4 million; and the Sheriff’s office brings in the difference of $3.3 million, so the Board does not completely fund the Sheriff. She commented on various revenue sources; stated of the $3.3 million, there is going to be $300,000 more than forecasted; and she was going to keep the $25,000 cushion and spend $275,000 on cars.

Commissioner Carlson inquired how many cars can be bought for that amount; with Ms. Barker responding 12 to 15 as they are going for between $22,000 and $25,000. Commissioner Carlson inquired how many does the Sheriff absolutely have to have this coming year; with Ms. Barker responding they put in the budget what they need to have; they are in need of 150 cars; approximately 50 vehicles next year will stop operating; and there will be a number of wrecks. She noted if there is any insurance money that comes in, that is applied to vehicles. Commissioner Carlson inquired if there are 50 cars off the road, does that mean there are 50 deputies without a vehicle; with Ms. Barker responding yes. Commissioner Carlson stated the Sheriff’s budget must be accommodating those 50 vehicles to keep those deputies on the road; with Ms. Barker responding they put them in but they are not funded. Ms. Barker stated for this year they are going to get another 28 in the MSTU, 12 for new deputies, and another 16; but there are not any allotted in the General Fund. Commissioner Carlson stated the confusing factor is there are 12 additional deputies; but there are deputies in place without vehicles; and that does not make sense. Ms. Barker advised the deputies the Board approved come with vehicles. Commissioner Carlson stated she understands that; but there are deputies who may not have a vehicle; and inquired how is that dealt with; with Ms. Barker responding they ask for vehicles purchases; they were lucky that the additional money came in; and they try to buy the cars any way they can. Commissioner Carlson stated she knows there is a lot of turnover with the vehicles; there should be designated dollars to replace them as needed; and it seems there could be better planning.

Commissioner Higgs inquired how much does a fully-equipped patrol car cost; with Ms. Barker responding with a light bar and everything, it would be $30,000. Commissioner Higgs inquired about the cost of 15 vehicles at $30,000; with Ms. Barker advising they can reuse some light bars, radios, and cages. Commissioner Higgs stated the patrol deputies are in the MSTU; but the Sheriff is putting patrol cars in the General Fund; with Ms. Barker responding no, there are sworn people in the General Fund. Commissioner Higgs stated this is just for sworn personnel, not administrative cars; so General Fund deputies drive Crown Victorias as well s the unmarked MSTU vehicles.

Chairperson Colon stated Ms. Barker was pretty adamant about needing $240,000 from the Board; now monies have been identified as being available; and if the Board does not make the decision to approve the present request, that money would come back to the Board. She stated she would not want the County to spend that money elsewhere, but to use it for the Sheriff’s Department; and the only way she would support this would be to make sure it would be allocated toward food services because she does not know where the Board is going to come up with $240,000 next year. She noted it is just a matter of priorities.

Commissioner Pritchard stated one of the things he has been talking about for years is the vehicle replacement plan; and he gave Mr. Jenkins a booklet that has been used in another area for quite a while. He stated he does not have a comfort level with the number of cars the Sheriff has and how they are being used because every time he turns around, there is a request for another ten or fifteen vehicles. He stated he would like to see a list of the vehicles and how they are being used. Ms. Barker inquired if Commissioner Pritchard got the email she sent that gave a list of all 513 vehicles and the mileage on all of them. Commissioner Pritchard stated it is not just mileage, but the use of the vehicle; and his car has 155,000 miles on it, but still keeps chugging. He stated sometimes it is necessary to take a vehicle from one position to another; he is not sure the Sheriff is doing that; there are a lot of take-home cars, which he supports; but he does not have a comfort level with the vehicles. He stated two or three years ago the Sheriff needed cars and then 25 were found behind the jail. Ms. Barker stated those cars were received and were waiting to be striped; and they have to be equipped before they can go on the road. Commissioner Pritchard stated they were talking about new vehicles and new vehicles were found; with Ms. Barker responding they were vehicles that were approved in the budget cycle; they were ordered October 1; it takes until March or April to get them in; and they were delivered behind the jail until they could be striped and equipped. Commissioner Pritchard stated his point is he does not have a comfort level with the number of vehicles; and he agrees with Commissioner Colon’s suggestion to leave the money, let it roll over and be returned to the County, and hold it until it comes time for the food program or some other program. Ms. Barker requested Commissioner Pritchard describe what information she could provide to him; and stated all the cars are used for law enforcement needs. Commissioner Pritchard stated this would all be part of what he is proposing in the budget; he is proposing several workshops during the course of development of next year’s budget; and in the workshops every department will make a presentation to the Board and the Citizens Budget Review Committee and the County Finance Director. He stated they will then be able to ask questions; staff can lay everything out; and he would want to know how the people are being used and when they are being used. He stated he wants to make sure that when the Board says to hire 12 for detention at the jail, that they are hired and are at the jail; there is so much going on in the Sheriff’s office, that it is difficult to keep track; and frequently he thinks he is getting the same story two different ways, only because it is so difficult to track the operation of the office. He stated during the workshops he would like to see the information; but in the meantime, the revenue that the Sheriff received through the various efforts should pay for areas where they were going to be short, and one is the food program. Ms. Barker stated that is the Board’s decision; and inquired what more could she have provided in the budget workshop regarding use of vehicles that could have offered any more information. Commissioner Pritchard stated all that is provided is mileage; and he would like to know the maintenance history, cost, who drives them, and what they are used for, which all should be included in the vehicle replacement plan. Ms. Barker inquired will this be asked of all County departments; with Chairperson Colon responding yes. Commissioner Pritchard stated when they get a list of recommendations or a capital list, it should be prioritized so he does not have to figure out what is important to the entity; and when they make a presentation, the Board will listen and make an evaluation based on however it is presented.

Commissioner Carlson stated she agrees with the comments and suggestions; certain things are already funded for the Sheriff’s office; and she would like to see those things that are already budgeted be part of the priority list in case there needs to be movement of those dollars within the current budget. Ms. Barker stated there is one budget meeting left; and inquired if they were asked for a priority list; with Commissioner Carlson responding they asked for one last time. Ms. Barker stated she thought it was decided that everyone was going to do it in next year’s planning process; with Commissioner Pritchard responding that is what he recalls. Commissioner Carlson stated at the workshop on Thursday, there is going to be an active discussion; there are memoranda from Commissioner Higgs and Commissioner Pritchard about possible things that might occur; and it would be advisable to prioritize the list in the current budget now based on the tentative millage rate and anything else Ms. Barker wants to add to the list so the Board knows where the Sheriff’s priorities lie. Ms. Barker inquired if Commissioner Carlson is speaking to funded or unfunded programs. Commissioner Carlson responded whatever is currently funded under the tentative millage is up for grabs now based on the workshop.

Chairperson Colon stated the request is for a budget change; she does not see any support for it; and the money will come back to the County. Ms. Barker inquired if the funds will be earmarked for the Sheriff for the food contract at $248,000, and is that included in the motion. Commissioner Pritchard stated he does not want to limit it to the food contract, but he would want the money to go back to the Sheriff in some fashion. Ms. Barker inquired if the money she returns to the County from the General Fund would be earmarked for a need in the Sheriff’s 2003-2004 budget. County Manager Tom Jenkins inquired if Ms. Barker is referring to the miscellaneous revenue that is here today or in general; with Chairperson Colon responding she is talking about the $275,000 she has identified. Commissioner Pritchard stated he is talking about $300,000. Ms. Barker advised she was only asking for $275,000 in case the total amount did not come in; there are three weeks left; and the books are still open for a couple of weeks in October.

Chairperson Colon stated she cannot speak for anyone else, but she would want to make sure that the money is for the Sheriff’s needs.

Commissioner Pritchard stated the Sheriff is going to have needs; the Sheriff generated this revenue; whatever check is returned should be held; and when the Sheriff comes back for programs such as the meal program, that could be one of the sources of funding.

APPROVAL, RE: PROPERTY, CASUALTY, AND WORKERS’ COMPENSATION

Human Resources Director Frank Abbate stated they are requesting approval for the Property/Casualty and Workers Compensation insurance coverage effective October 1, 2003; and the Agenda Report attachments explains the coverages and where they would be moved from some of the current carriers. He stated consistent with the Board’s direction staff looked for alternatives in the market; Insurance Director Gerry Visco worked with the new broker and came up with a new coverage under the property program, which will result in significant savings as well as additional limits in the coverage; and even though the various other lines of insurance including General Liability and Workers’ Compensation have significant increases across the board, the overall program is coming in within budget.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve placement of the County’s property, casualty, and Workers’ Compensation insurance coverage as recommended by Risk Management and proposed by Brown & Brown, the County’s authorized broker.

Commissioner Higgs inquired is the $56,000 going to be evident in savings for the 2003-2004 budget. Mr. Abbate responded they will be closing the books on this year at the end of September and will be going out to the actuary; and before the Board allocates any money, he would like to get the actuarial report and submit it to the Board so it will be assured there are adequate reserves in the various lines. He advised staff will be bringing that to the Board in the first quarter or no later than the second quarter. County Manager Tom Jenkins noted it is distributed over a number of different funds.

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

APPLICATION AND ACCEPTANCE, RE: FLORIDA DEPARTMENT OF TRANSPORTATION
AGGRESSIVE DRIVING ENFORCEMENT PROGRAM AND MOBILE BREATH TESTING
GRANTS

Deborah Barker, Sheriff’s Finance Director, stated this is an application for a grant from Florida Department of Transportation for three positions; two are aggressive driving program positions; one is a DUI position; and all three positions are completely self-funded. She stated the positions will bring in more in revenue to the County than they will cost even in the fourth year when the grant runs out from FDOT. She stated there are two sources of revenue on the aggressive driving and the DUI; one goes into the County General Fund, meaning for ticket money; and the other one goes into the fine surcharges for teen court, the 1250 fund, the second dollar fund, etc., so this is a completely self-funded grant that will be continuous even after the grant funding is stopped. She stated the cost is $164,000; revenue generated would be $688,000; and that means the County will realize between General Fund traffic citations and surcharge money a net increase or gain to the County of $524,000.

Chairperson Colon requested John Asumaa meet with her while the presentation is going on.

Commander E. C. Smith stated the grant is a program that is directed toward highway safety for the County; and the County was selected because on aggressive driving, the County is number six out of 22 counties of similar size with the problem, making the County high on the priority list for funding. He stated the County is number 15 on the DUI list; but because it is in the top 13 counties Statewide and is a target county for the DUI, You Drink, You Drive, You Lose Campaign, it has been selected for the grant. He stated there is an opportunity to make the highway safer and have fewer fatal traffic crashes; last year there was a tremendous increase in traffic fatalities, from 79 to 109; and the County needs to do more to help reduce the number of people being killed or injured on the roadway. He stated for the aggressive driving program, they plan to think outside the box and use some unconventional measures to identify and apprehend those people; and the added benefit beyond highway safety will be the revenue that will be generated.

Sgt. Wayne Butler displayed a matrix showing the local match; and stated it shows that $688,386 would be generated by the two positions in surcharges, fines, etc.

County Manager Tom Jenkins stated according to the records of the Clerk’s office, the County is collecting traffic fines less than what was collected in 1999; and with all the enforcement being done with the special units, he does not understand why the collections are the same as they were in 1999. He stated he does not think it is a reflection of law enforcement’s activity, but for some reason it does not seem to be getting into the system. Commander Smith stated six or eight months ago through an administrative judge’s order, the time to pay a traffic ticket in Brevard County was extended from 30 days to 90 days plus a week or two grace period; so there should have been a tremendous drop of monies coming into the County through the fine and forfeiture fund. He stated the judges and hearing officers are fining people; they do an affidavit for restitution or cost of investigation in approximately 80% of the cases; and they are being awarded the money. He stated that money goes through the Clerk’s office because of the way the system is set up; and from 2002, at the pace they are doing now, they will be increasing the number of tickets by 18% to 20%. Mr. Jenkins stated it was his impression that the activity of the unit had gone up in the last several years, but revenues have stayed down over the last three years; and he cannot figure out what the cost is. Ms. Barker advised it would be a Clerk’s issue; with Mr. Jenkins responding it must be in some fashion.

Commissioner Carlson inquired when is the last time the Board got an update from the Clerk on how collections are doing; with Assistant County Manager Stockton Whitten responding Commissioner Higgs got a memo dated September 9 with some information on traffic ticket collections; and extrapolated to 12 months would be $11,000 less than what was collected in the year 1999-2000. Commissioner Carlson stated she was concerned because she knows the Board asked for updates on a periodic basis, but she has not seen those updates; and inquired if the Board can get an update from the Clerk’s office as far as all the things that should be collected. She stated there has been a problem with auditing the process because of the system; she does not know the status of the computer system now; and inquired if the Board can get a report on the status of that and what the auditors are looking at.

Commissioner Higgs inquired were they able to sign off on the audit; with Commissioner Carlson responding she does not think they have signed an audit for the clerk for a few years.

Commissioner Carlson stated the item is talking about $50,000 per year for three years. Commander Smith advised that would be the average; and the first year is very small because the grant basically funds 100%. Commissioner Carlson stated the potential increase in dollars coming in is going to make a difference in how the Sheriff prioritizes the funding this year; and she hopes to see that in there because it would be a good program.

Ms. Barker advised this was due two days ago; and they are holding approval because the Board date was today.

Commissioner Higgs inquired if this will take the place of other officers who are doing additional enforcement; with Commander Smith responding no, these will be additional officers who will be dedicated to this problem, and will not take the place of anyone who is already doing it. He stated they are trying to instill a philosophy through all the deputies, even the ones who work in the zones that answer the calls for service, to take an aggressive approach to the traffic safety issue; and this will add three more people to the programs that are in place.

Commissioner Carlson inquired if the Sheriff foresees having the additional people being paid for by the revenues after the three years; with Commander Smith responding their estimate of the number of citations they will write is very conservative; and he extrapolated each of the different types of citations to get a reasonable estimate of what would be generated in the fine area. Commissioner Carlson stated until the Board gets a handle on the Clerk’s position with the computer system, it is hard to say if those dollars are going to actually come to the Board, so at best what the Board is seeing is a guesstimate; with Commander Smith agreeing it is a guesstimate to a degree, but the judges are fining people. Commissioner Carlson stated the Board just needs some accountability in that regard.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize application and acceptance of Florida Department of Transportation grants for the Aggressive Driving Enforcement and Mobile Breath Testing Programs. Motion did not carry; Commissioners Carlson and Colon voted nay. (Vote changed later in the meeting.)

Commissioner Carlson stated she would prefer to see this at the workshop. Chairperson Colon stated as the motion did not pass, it will have to come back on Thursday. Commissioner Pritchard stated they do not have the time as the deadline was two days ago. Commissioner Carlson inquired if they cannot hold out for two days; with Commander Smith responding they can try. Commissioner Pritchard stated this is $4,200; with Ms. Barker advising the County will put out $4,200 next year, and will get back $225,000 not including the DUI’s. Chairperson Colon inquired how much after the grant is over will the County have to pay; with Ms. Barker responding if the estimates hold through, it will be a wash out on the plus side over $1,000 a year. Ms. Barker clarified in the fourth year, it will cost $116,000 for the two positions and $58,000 for the DUI position; and that will be a total of $174,000 for the fourth year.

Commissioner Higgs stated the Board has to add to the consideration that these people are going to pay for themselves; this is revenue that will pay for itself, not only in gross revenue but in safety on the road; and that is the important thing. Commissioner Pritchard stated he agrees.

Commissioner Carlson stated the Board needs to see this on Thursday; if they can hold off until this date, they can hold off until Thursday; and she does not see a problem as long as the Board can guarantee those funds are coming in, but right now she is not comfortable guaranteeing those dollars are coming in. She stated they have already shown a lack of the projections as far as what they would anticipate coming in; that is not the Sheriff’s problem; but it is an issue the Board needs to clarify and everybody needs to be accountable at this stage.

Chairperson Colon inquired if Commander Smith heard from DOT regarding them holding the grant that was supposed to be submitted two days ago. Commander Smith responded he called this morning; the deadline was a couple of days ago to get the contract to Tallahassee; but DOT knew they could not get it before the Board until today so it allowed them the time.

Chairperson Colon stated she will change her vote and support the motion.

County Manager Tom Jenkins stated in order to do this, it will be necessary to increase the estimated revenues for the budget and increase the transfer to the Sheriff’s office based on the new additional revenues.

CITIZEN REQUEST - JOHN ASUNMAA, RE: RIO LINDO DREDGING MSBU

Chairperson Colon stated all Mr. Asunmaa is requesting from the Board is a report to come back concerning this MSBU.

John Asunmaa stated at the July 16, 2003 meeting, an item was placed on the Agenda for Board’s consideration requesting amendment the Rio Lindo Dredging MSBU to prevent a second dredging for a period of ten years; he is requesting the Board prevent another MSBU from being created to dredge the canals of the Rio Lindo Subdivision until the original MSBU project created by the Board in July 2003 is paid off; and currently there is no policy in place to prevent the establishment of a similar MSBU in the future.

Chairperson Colon stated the Board is requesting staff to bring back a report. Roadways and Landscaping Finance Manager Greg Pelham stated Mr. Asunmaa is requesting the Board put something in place that will prevent the MSBU from happening again until the first one is paid off; this is the first time they have ever had a situation like this, so it is new territory; and staff would be happy to provide a report. Chairperson Colon stated it took 30 years for the canal to get in the position it is now; and asking to not have another MSBU for ten years is not asking for a lot. Mr. Pelham stated it has taken a long time for the canals to get to this point where they need to be dredged; it is possible in five years, they will fill back up and need to be dredged; but that would be at the request of the homeowners through an MSBU; and Mr. Asunmaa is requesting the Board not do that until the first assessment has been paid off. Chairperson Colon stated there is no Board action required; and staff will provide more information.

Mr. Asunmaa stated there are a lot of retired people in the neighborhood; and it would be nice to have it paid off before doing it again.

Commissioner Higgs stated the Board is talking about establishing a policy for all MSBU’s; the Board would not initiate others when the first one has not been paid off or would have some mechanism to discuss that issue; and those are Board policies that could be changed.

Commissioner Carlson stated there may be circumstances where there may be a problem. Mr. Asunmaa advised dredging is nice, but it is not a necessity; with Commissioner Carlson advising she is in agreement. Mr. Asunmaa stated paving a street may be another issue. Commissioner Higgs stated necessity to Mr. Asunmaa may not be necessity to someone else; and some people think necessity is I want my property value to go up. Chairperson Colon stated the Board will get a report.

Commissioner Pritchard stated he would be concerned about hamstringing the rest of the neighborhood such that it could not continue something. Mr. Asunmaa stated he is speaking about the specific MSBU. Commissioner Pritchard stated it might become a very broad policy; and he would be interested in getting a staff report.

Chairperson Colon stated the report will come back October 28, 2003; and requested staff notify the rest of the folks about what is happening. Mr. Asunmaa inquired if they are talking about a specific MSBU; with Chairperson Colon responding it is specifically just for the dredging. Mr. Asunmaa stated the community could get a street paving MSBU; that would be a separate MSBU; and so no one would be hamstrung. Chairperson Colon stated if the Board puts a policy in place it does not just affect Mr. Asunmaa, but affects everyone in the County. Mr. Asunmaa stated it should be a site-specific ten-year deal for the canal; but if someone needed a road paved, that would be a different MSBU, which would not be hamstrung by the ten-year provision. Commissioner Higgs stated the Board could not start another MSBU without going through the whole procedure again. Mr. Asunmaa stated he understands, but it would be a separate MSBU. Chairperson Colon stated this will put something in place so the people will have a comfort level; and this will come back to the Board on October 28, 2003.

ORDINANCE AMENDING ORDINANCE NO. 02-33, RE: EXEMPTING MERRITT ISLAND
REDEVELOPMENT AREA FROM CHANGE OF USE REQUIREMENTS

Doug Robertson, consultant to MIRA, stated he is here to discuss Ordinance 02-33, Change of Use, which was adopted approximately one year ago; it requires staff review for every occupational license applied for in unincorporated Brevard County; and the review is done by most of the development-related departments. He stated all the departments see what current Codes are not being complied with regarding the new use; the goal is to bring the older buildings up to the current Code; and it is often difficult and expensive to accomplish this, especially in regard to Building Codes. He stated if it is determined that the new use will generate more traffic than the previous use, a site plan is required; and an even more stringent review is conducted by staff, bringing in landscaping, drainage, and parking requirements. He stated the cost and time for this can be extensive; and it is not only the $850 for the application fee for the review, but also the cost for preparing the site plan and loss of rent during the process. He outlined the procedure to get an occupational license, improving the building, or going through the site plan process; and stated there is lost rent incurred in the process as many times the renter is lost during the process. He stated the time and money are at risk, because there is no guarantee after the process that the owner is going to be allowed to have the tenant in the building, so the entire review process could be futile for the owner. He stated MIRA became aware of this because it was approached by tenants and owners from Merritt Park Place; the area has transitioned from a residential area to an area of commercial use; and the Redevelopment Agency improved the infrastructure to support the commercial character, providing on-street parking, stormwater drainage improvements, sanitary sewers, landscaping, and paved streets. He stated the result has been a pleasant pedestrian-oriented shopping environment; however, some buildings in Merritt Park Place are still residential; and under the new Ordinance, when they attempt to transition to commercial use, they have problems getting an occupational license because of the previous use being residential. He stated initially the request to the Board was directed to Merritt Park Place to make the Ordinance more flexible because of the area’s unique character and the public investment that has been made in the infrastructure; however, the more information the MIRA Board gathered, the more concerned it became that the Ordinance may have an adverse economic effect throughout the entire Redevelopment Area. He stated potential owners will not want to invest to improve the properties, because they may not be able to rent them in the future.

Chairperson Colon advised Mr. Robertson’s time has expired; with the Board reaching consensus to allow additional time.

Mr. Robertson stated a couple spent thousands of dollars to purchase a structure and thousands more to improve the structure, only to find they were not able to get an occupational license for a real estate office; staff has worked with them, and that is potentially resolved; but that ripple effect went through the entire area. He stated as owners see the potential renter pool get smaller as a result of how the Ordinance might be implemented, it may have an adverse effect on property investment. He stated MIRA has a program to work with owners of older buildings to improve the buildings, which has been very successful; in addition MIRA is in the process of finishing a feasibility study for regional stormwater management facilities; and if those can be provided, that would encourage the private sector to acquire the older strip centers and buildings and redevelop them because they will be able to deal with stormwater off-site and pay stormwater credits to do that, making those areas more feasible for redevelopment. He stated they do not want vacancies within the area; the community feels MIRA has done a good job in improving the function and aesthetic appeal of the Redevelopment Area; and they do not want an Ordinance that is counterproductive. He stated MIRA is working with planning people and engineers to focus on the older buildings; and requested the Board exempt the Redevelopment Area from the provisions of the Change of Use Ordinance.

Darlene Pridemore stated she is the property manager for Virginia Schenck’s property in Merritt Park Place; she has found it extremely difficult to find a renter for the property; when MIRA came through it took all of the parking spaces away; and it has taken a year and a half to find a tenant who did not need parking spaces. She stated the property was vacant for a year and a half; she moved in an accounting firm, but they were unable to get an occupational license because the property had been vacant for a year and a half. She stated Ms. Schenck is in a Catch-22 situation with her property; there is no parking because of the redevelopment; and she has an inability to get an occupational license because the property has been vacant. Ed Washburn, Permitting and Enforcement Director, stated he does not think that the Redevelopment Agency took the parking; the parking was probably on the street; and in this case, they offered to provide parking in front of the building, but it was turned down. Ms. Schenck stated she never heard that before and it is not true. Mr. Washburn stated the previous occupant did not have an occupational license; the last use on the property was a residence; and when a residence is converted to a commercial or professional use in order to have the public there, there are certain building improvements that have to be made. He stated if the Board wanted to exempt all the residential uses or any other use from the Change of Use Ordinance, the individual still might have to make certain improvements that are required by the Building Code.

Mr. Robertson stated Ms. Schenck has a very unique property in a unique area; initially she could park on the street as everyone did in that area before the program; MIRA asked for easements from the property owners, which allowed them to move the sidewalks closer to the homes; and that allowed them to put parking on the street. He stated the debate is whether or not MIRA asked Ms. Schenck for that easement; he thinks all property owners were asked; but he is working with Ms. Schenck and her attorney to see if they can go back and provide the parking spaces on the street retroactively.

Commissioner Higgs stated they have no set aside parking, so in seeking to go from residential to commercial, they have not been able to prove they have parking. Mr. Robertson responded that has been the situation with all the properties within that area; all of the properties were single-family and have transitioned to commercial; and MIRA believes it has provided the necessary infrastructure to support the commercial uses. Commissioner Higgs stated there are some unique problems in that area; the Change of Use Ordinance deals with changes of different commercial uses; there are some unique situations there that the Board may recognize in some way; but the change of use is not the only problem because the properties are going from residential to commercial use and the Change of Use Ordinance address the commercial to commercial use. Mr. Robertson stated it addresses both; they understand that the health and safety Codes will have to be complied with; and that is not the issue. He stated there is the question of whether the driveways are wide enough to accommodate parking in the back of the property and whether there is adequate parking onsite; and there is not parking onsite, which is why they provided parking on the street. He stated they provided the sanitary sewer system; and the time limit is up for them to hook up. He stated Merritt Park Place is special and deserves some flexibility.

Virginia Schenck stated in 1980 she had her real estate license; she bought a crack house that was falling apart; next to it was a Jim Walter home that was a lawn mower repair place; and the second house came with the first. She stated the property has been rented out for a business; but the renter moved out; and then they had the trouble Ms. Pridemore spoke of. She stated she has not been able to rent the property; and she put in all kinds of improvements, but it will not come up to meet the handicapped requirements. She stated the people who rent it usually are not open to the public for handicap use; and requested the Board grant the exemption for Merritt Park Place, and then work with the rest of the Redevelopment District. She stated right now she is stifled as are a lot of people; and she is pleading her case because she is losing thousands of dollars.

Chairperson Colon stated Ms. Schenck mentioned the property used to be residential; with Ms. Schenck responding it was not residential, but abandoned. Chairperson Colon inquired when Ms. Schenck purchased the property was it zoned commercial or residential; with Ms. Schenck responding it was commercial with a real estate office.

Beth Kring stated she is a property owner in Merritt Park Place, and has owned the property for 25 years. She stated Ms. Schenck’s property has been commercial; the tenant was there for 11 years as a therapist; and she does not know how she could have not gotten an occupational license, but if she did not, that is just the way things are in Merritt Island. She stated they are unique, especially in Merritt Park Place; MIRA has pumped millions of dollars into redevelopment of the Merritt Island corridor and Merritt Park Place; she owns rental property; and if her tenants left, she does not know what she would do because change of use would come into effect. She stated it affects many properties all over the County; there are people who cannot pull occupational licenses; at Ms. Schenck’s property they have been unable to pull an occupational license for a year because of the handicapped access; and they cannot even get signage. She expressed concern for the future of Merritt Park Place and the Merritt Island Redevelopment District.

Commissioner Higgs stated the change of use only applies to commercial; they have change of use when they change zoning and have to go through all the site plan reviews; and that procedure has been in place a long time. Mr. Washburn stated Zoning has always checked occupational licenses to make sure the use is consistent with the zoning classification. Commissioner Higgs stated that has been in place a long time; the Change of Use Ordinance has come up as a bigger issue because there are problems when an occupational license is changed with a commercial property, so there are two sets of issues. Mr. Washburn stated what the Board attempted to do was hit some happy medium with the property owners, when they did have a change of use, to do improvements that were feasible onsite; and suggested he come back with a report to provide some alternatives. He stated the Board has cautioned staff to read and administer the Code; and although staff makes decisions every day, they try not to stray too far from what the Code says. He stated the people have presented some real problems; and the Board needs to at least get a report and revisit what it did with the change of use, because it is not true that everybody has to do all those things. He stated it is only if someone has additional trip generation that they would have to do additional things to the site; and where the bind comes in is when there is a single-family residential unit for which there is no record of it ever being taken care of as a commercial or professional unit wanting to be converted to a commercial or professional use. He stated the Board may be able to resolve this today; but he could come back with a report to provide some alternatives.

Commissioner Pritchard stated he agrees there are too many issues that need to be ironed out; the whole purpose of a redevelopment district is to provide a convenient way to develop an area; and what they have is not very convenient, but is stifling a lot of people and creating problems. He stated there is an $800 application fee as well as other fees and costs; and it becomes a very cumbersome project. He stated the MIRA corridor runs from the Indian River to the Banana River, and is five or six blocks wide with SR 520 in the center; and the whole area is being addressed in a variety of issues. He stated they are looking at signage, Code compliance, bus benches, landscaping, and façade improvements for the entire area; Merritt Park Place is a unique part of that area because the composition of the neighborhood was largely residential and the lot and structure sizes are smaller; and trying to revitalize a disturbed property becomes difficult when there are issues such as parking that might be a requirement under Change of Use Ordinance, but there is no room for parking. He stated he would appreciate staff, Mr. Robertson, and others that are involved with the MIRA process coming together to develop a process that will allow the revitalization of the redevelopment area. He stated the whole purpose is to redevelop; and recommended finding a way to redevelop responsibly and effectively.

Mr. Washburn noted the Ordinance has been in effect a little over a year; and only three plans have been reviewed that cost $850. He stated the normal fee to review an occupational license through Zoning and Building Departments is $160; but the residential units that are converted to commercial or professional do get caught up in the process.

Commissioner Pritchard stated one reason there may have only been three is because a lot of people have heard of the problems and are shying away from being involved in the process; and that is not what he wants to see. He stated the entire Merritt Island corridor needs enhancement; the façade program is a wonderful program; some people have participated in it, while others are now getting into it; and that part of Merritt Island is going to be turned into a showplace. He stated one way to get this going is by having a meeting of the minds; and he appreciates the comments.

Chairperson Colon inquired when would the Board like this back; with Commissioner Pritchard responding he thinks at least a month. Chairperson Colon suggested October 28; with Mr. Jenkins advising that is an evening meeting. Chairperson Colon suggested the November 4, 2003 meeting. Mr. Washburn advised he will have the report done, but is scheduled for annual leave the last week in October. Chairperson Colon stated the item will come back to the Board on November 4 at a time certain.

Ms. Schenck stated she is having to pay taxes, but has not made any money on the property this year. Mr. Washburn stated he would happy to look at Ms. Schenck’s case. Mr. Robertson thank Mr. Washburn and his staff for working closely with MIRA.

DISCUSSION, RE: SAWGRASS LAKE AND LAKE HELL ’N BLAZES PROJECT

Commissioner Carlson stated she requested to be the point person on this item because of her familiarity with the St. Johns River Water Management District and that sort of thing; and what is before the Board is a letter addressed to Commissioner Pritchard giving some details. She stated this is a partnership type project where the federal dollars are being drawn down and the St. Johns River Water Management District is also contributing. She stated the second sheet shows the costs of the projects, the federal contribution, the St. Johns River Water Management District’s contribution, FWC’s cash contribution, and the shortfall, which is approximately $2,003,603. She stated the County is in for $200,000, although she knows the Board has not signed off on anything; they had a meeting with all the players including Melbourne, West Melbourne, Cocoa, Palm Bay, and St. Johns River Water Management District; and that put in an additional $750,000, still leaving a shortfall of $200,000. She stated she asked questions in regard to the City of Melbourne since it is the one that will have the greatest impact; its water supply will be impacted if the muck cannot be removed; and it has already felt that impact with muck getting into Lake Washington. She stated she asked if there could be a user fee increase; the County has evidently already addressed this at some point in the past; and she does not know if the City would reconsider if the County is unable to find the $200,000. She stated the Board can wait until Thursday and bring this up in terms of the budget; or the Chairperson can draft a letter to the City of Melbourne and all Melbourne City Council members to see if the City would reconsider its position on a user fee increase to make the project work. She stated it would be a great loss to have all the money in place but come up short $200,000; and this should be seriously addressed.

Commissioner Pritchard stated one of the things brought up at the meeting was that the County’s use of the Melbourne water supply is approximately 22 to 24%.

Commissioner Carlson stated she asked that question of Mr. Martens concerning the percentage; the unincorporated area and users of the City of Melbourne water supply make up about 22 to 24%; divided by the number of users would make the County’s portion $500,000 and the City the remainder at $1.5 million; and what they are trying to do is distribute the costs over the other users. She advised there are some time constraints because of the C-1 diversion project; that area is going to be used for a disposal site; Mike Slayton could provide more detail if he was here; and the Board could still bring this to Thursday’s workshop while drafting a letter to the Melbourne City Council to see if it would be willing to reconsider a user fee to cover the $200,000.

Commissioner Pritchard stated he agrees it needs to come back on Thursday.

Chairperson Colon inquired if Commissioner Carlson wants a letter drafted to the City; with Commissioner Carlson responding that is just an option. Commissioner Carlson stated the City Manager was not in a position to answer the question other than to say the County was not interested at the time it considered it; but she does not know what the timing of the question was and whether it deliberated on the issue completely. She recommended sending a letter to the Mayor saying the Board understands the importance of the project and the need for the dollars; and requesting if the Board cannot come up with the funding, that the City would assist. She stated the Board should not allow this money to go away and the project disappear.

Commissioner Higgs stated the Board should deal with all of it on Thursday; and recommended deferring the letter until the Board discusses it at Thursday’s meeting. She stated the Board should talk about the resources available from the stormwater fund and also from tourist development taxes.

County Manager Tom Jenkins stated the user fee was just for the unincorporated area; and inquired if Commissioner Carlson was talking about the whole system. Commissioner Carlson stated with the user fee, it can be equitable across the board with those who are actually using the water rather than just taking $200,000 out of General Fund for something not all residents use; but it is important to know the water supply is high quality; and she does not know how that figures in. She states she thought it was a more equitable stance to say an across the board user fee increase; and the Board needs to think about it because it is a quality issue that could potentially affect more unincorporated residents. She commented on the City of Melbourne, water supply, annexation, and the Council’s position. Chairperson Colon stated the Board needs to make sure the City is represented on Thursday. Commissioner Carlson stated she could have Mike Slayton be present to explain. Commissioner Higgs stated this is a matter of money; and Mr. Slayton does not need to be here. Commissioner Carlson stated she does not know if the Board can get a response from the City anytime soon; the group was looking for a possible extension of time to get everyone’s input by the end of September; but she is not sure it is going to be there, so Mr. Slayton is looking to get an extension of approximately a month.

Commissioner Pritchard stated that was said at the last meeting; the issue is more than water although that is a significant part of it; and there are also recreational and environmental considerations. He stated that is why it is necessary to look at other than just the water users to fund this; and there should be further discussion on Thursday.

Commissioner Carlson stated the Board should also talk to the TDC; she does not know if dollars are available through them; but there is potential tourist impact in terms of improvements of fisheries and that sort of thing. Commissioner Higgs stated she thinks it qualifies under the Statutes. Commissioner Carlson stated the Board needs to look at that as well.

RESOLUTION AND NEW POSITION, RE: ESTABLISHING REVISED FEE STRUCTURE
FOR NATURAL RESOURCES MANAGEMENT OFFICE

Commissioner Carlson requested the Board table consideration of the revised fee structure and new position for Natural Resources Management so she may comment on it.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table consideration of resolution and new position establishing revised fee structure of Natural Resources Management office to September 30, 2003. Motion carried and ordered unanimously.

Commissioner Carlson’s absence was noted at this time.

CITIZEN REQUEST - LARRY MONARI, RE: PROPOSAL TO AMEND SECTION 62-102,
CLEARING OF NON-MAINTAINED COUNTY RIGHTS-OF-WAY FOR ACCESS

Chairperson Colon advised the citizen request of Larry Monari concerning a proposal to amend Section 62-102, Clearing of Non-maintained County Rights-of-way for access has been rescheduled to September 30, 2003.

CITIZEN REQUEST - RALPH MCCOIG, RE: MODIFICATION OF ORDINANCE ON LAND
ALTERATION ACTIVITIES, SECTION 62-4397(D)(1)

Ralph McCoig stated he is here on behalf of three landowners who have one parcel of land that is contiguous located on Burgess Road that is perpendicular to Camp Road; they are requesting permission from the Board to dig a private lake on each parcel and remove the excavated dirt from the site using Burgess Road; and as he understands it, it would require a modification of Section 62-4397(d)(1) to accomplish.

Eamon Wright thanked the Natural Resources Management office staff for their professionalism and patience; and stated they would like permission to dig a private lake and transport the dirt from the property through modification or amendment of Section 62-4397 to allow a case-by-case decision to be made. He stated this is about a pond that is going to be approximately an acre and a half; the Ordinance was supposed to address safety; and it was the result of someone in Melbourne calling to get trucks going by their house stopped. He stated on Burgess Road there are already 18-wheel trucks going up and down moving scrap and delivering to the auto salvage business down the road; the big problem with safety in their neighborhood is crackheads who drive 60 mph down the road; and the Ordinance does not do anything about that. He stated he could drive dirt to the property all day long; so this is not about the roads but about regulating commerce in a negative way; and the Ordinance is costing a lot of money to the County in lost taxes. He stated he has a problem on his property because nothing is getting done; he does not want to put money into it because he does not know what will happen with the Ordinance; and commented on children trespassing on his property with ATV’s and people dumping trash and taking dirt. He stated if the Ordinance is really about driving dirt, the local road as opposed to the thoroughfare is the problem; Burgess Road is a local road as is Camp Road; on a local road no one is supposed to be able to transport dirt from a borrow pit; but the Central Brevard Road and Bridge’s complex is there and dirt is transported all the time. He stated his property was an investment; he is looking forward to putting the pond in and having it stocked; and the owner of the middle property wants to get this done so she can sell the property. He noted he talked with Commissioners Scarborough, Pritchard, and Higgs; he does not know what needs to be changed in the Ordinance; but he is hoping the Board can do something.

Ben Elliott, representing Plata Engineering, stated they are in the Palm Bay area with an 18-acre parcel on Willowbrook Road; the application was filed in December; they have done a series of borrow pits over the years for various clients in the County; and they put together a complete plan, application, etc., but it was returned to them on the basis of the determination that Willowbrook Road was a local road and could not be used as the primary haul route. He stated he had correspondence with Sherry Williams and Nannette Church of Natural Resources requesting clarification of the local road issue and how it came into the Ordinance; and tonight he had some interesting input on that and the list of roads. He stated historically Willowbrook Road has been a haul road from the original celery farms to the extreme west; and there is a very large tract of land there that is one of the largest Brevard County sand mines. He stated their property is on the same road frontage; other properties on Willowbrook Road were able to obtain land alteration permits in the past for their initial need for dirt to fill the site for their eventual reclamation plan, which would be a single-family homesite; but the remaining dirt was transported off the property and then it was classified as a borrow pit land alteration activity. He stated they are looking at doing what others have been doing; he read some correspondence from Ms. Church to the Board that there are some alternatives the Board could consider such as amending the Ordinance on a case-by-case basis and looking at certain situations of the local road classification. He stated there is a salvage yard at the end of Burgess Road; in his case Blackhawk Quarry and the celery farm are to the west; and if a traffic count was done, 90% of the vehicles would be from Blackhawk Quarry and the other 10% would be for the existing residences along Willowbrook Road, so it is not a local road when one looks at the primary use of the road. He stated he appreciates the diligence of staff in working with him; but this is a difficult situation when there is an Ordinance; and looking at it on a site specific basis, there should be some latitude granted to staff to make decisions on a case by case basis. He stated they are not in the middle of a subdivision transporting dirt out on a local road; and they are on a haul road, which is Willowbrook Road.

Commissioner Higgs inquired how many truckloads would be taken out of the proposed private lake. Mr. McCoig responded they anticipate approximately 1,000 truckloads; they would remove the dirt in a matter of 60 days; and they would work Monday through Friday between the hours of 8:30 a.m. and 2:00 p.m. Commissioner Higgs inquired if this is a commercial operation for 60 days to sell dirt to someone; with Mr. McCoig responding the dirt is going to be relocated from the site to other sites owned by the previous owner of the three tracts. Commissioner Higgs inquired is he buying the dirt, and is this commercial; with Mr. McCoig responding he does not know if it is commercial, but the previous owner is relocating the dirt from the site to other sites he owns in Port St. John. Commissioner Higgs inquired if he is being compensated; with Mr. McCoig responding he is not paying for the dirt, and it is part of the agreement with the owners of the homesites. Commissioner Higgs stated it would be hard to develop the Ordinance change in a capacity of so many truckloads or period of time; it would get pretty cumbersome; and she is concerned about the local roads. She stated she understands Mr. McCoig’s problem and the character of the road; she also understands the character of Willowbrook Road; and she is willing to consider it. Mr. McCoig stated staff gave suggestions to the Board; and options C and D might apply to his situation. He stated C is to consider temporary noncommercial land alteration permits for construction activities on local roads; and that may be an alternative to his situation.

Commissioner Pritchard inquired if the person who owned the property, as a condition of the sale, said he wanted to get an amount of dirt from the property to use elsewhere; with Mr. McCoig responding yes. Mr. McCoig advised when they came with the rezoning request they agreed to a binding development plan agreement to restrict the eastern one-third acre tract for a homesite only; and even though they were granted TR-2, which would have allowed two trailers per acre, they agreed to three homesites with three homes on one acre each. Commissioner Pritchard stated he is trying to get a grasp on the amount of dirt being transported and why it is being transported; he does not understand why someone can bring dirt in but cannot bring it out unless it is to curtail a commercial operation in an inappropriate zoning; and his assumption would be that a local road would be the key behind prohibiting that type of commercial venture; but Mr. McCoig is saying trucks are traveling up and down that road all the time hauling all types of commercial product. Mr. McCoig stated there is a salvage yard at the north end of the road; and in talking with the residents, there is quite a bit of traffic hauling scrap metal from Camp Road to the salvage yard. He stated his assumption is the spirit of the Ordinance was to restrict commercial operations from hauling dirt through residential areas; but with their situation, it is not a commercial operation; and they will be digging the lake, excavating the material, hauling it offsite, and be out in 60 days. Commissioner Pritchard stated when he looks under operation of land alteration activities, it says, “no haul route shall be a roadway functionally classified as a local road,” and “trucking or hauling activities shall not result in damage to roads and bridges located along any proposed haul route.” He inquired if the definition of borrow pit is an ongoing operation, and not something that is going to be done in 60 days; and stated he assumes all borrow pits are located on other than local roads. Sherry Williams, Environmental Permitting, stated the Ordinance requires that before a land alteration permit can be issued, the haul route must be something other than a local road; and it has to be located on an arterial or collector road. Commissioner Pritchard inquired if they could not have a borrow pit in this location; with Ms. Williams responding not through the County’s Ordinance; but by taking the fill off the site, they do have to get a land alteration permit, so it is a catch 22. Commissioner Pritchard inquired could they open a borrow pit on this site; with Ms. Williams responding not under the current Ordinance. Commissioner Pritchard inquired what is the definition of borrow pit, and is it more of a continuing venture that take years to achieve; with Ms. Williams responding the intent is for a commercial or industrial operation, especially one mining sand. Commissioner Pritchard stated when someone is mining, they are selling the product as a commodity to different vendors; in this situation it was part of a land contract with the previous owner where a value was placed on the amount of dirt that is going to be placed somewhere; and in his determination, it is not a commercial operation. He stated this is a one-time thing; they will take the dirt out and deposit it; and the property owners will end up with a two-acre lake that is an amenity. He stated Mr. McCoig could bring in thousands of trucks if he wanted to build McCoig mountain; but because he wants to take dirt out in a short-term project, he cannot do that. He stated there are already trucks going up and down the road; but regardless of that, someone can bring in dirt but cannot bring it out. He stated he is looking for a way to resolve it; and inquired if there is any solution. Ms. Williams stated the memorandum that was sent to the Board in December outlines several options for the Board to consider if it wants to proceed on amending the Ordinance; the first option would be to stay with the current regulations; the second option would be to amend that particular Section to allow certain land alteration activities to occur under certain conditions; and there are several options within the second option. She advised the third option would be to amend it to be consistent with the existing zoning regulations, which require direct access to arterial or collector roads unless the property is zoned industrial or commercial; or the Board could provide other direction. County Manager Tom Jenkins inquired about the duration; with Ms. Williams responding that is covered under 2c, temporary non-commercial land alteration permits for construction activities on local roads. Commissioner Pritchard inquired if staff is suggesting option 2 with a, b, c, and d or is the focus more on option 2c. Ms. Williams stated there are a number of options that staff can bring back to the Board with further research and some of the advantages and disadvantages of each of the options. Mr. Jenkins stated this has been back so many times; and suggested the Board consider 2c; with Commissioner Higgs responding that will not work for her because this is commercial in that there has been an exchange of value. Commissioner Higgs stated she can only assume that there was a deal in the sales contract and that people paid a certain amount based on the exchange of land; and that is commercial, so she does not think they can go with number 2. Commissioner Pritchard stated they will get the lake; with Commissioner Higgs advising it is still commercial. Mr. Jenkins stated it is one thing for someone to be operating a borrow pit for three years and selling to multiple buyers; but this transaction is a much shorter term; and the question is whether it could be monitored.

Commissioner Higgs stated there might be somewhere to go because in this case there is an established commercial use on the road; there is also a size limitation that could be a way of dealing with a short-term problem on an acceptable road; and expressed concern about people creatively using the issue of size to get multiple operations on a road until there is a very large borrow pit from individual parcels being put together. She stated she is also concerned because in AU there are people who could do this; that is what the Board is trying to protect against; and inquired if this is an AU parcel. Mr. McCoig advised the eastern one-third of the parcel is TR-2 and the back is general use. Commissioner Higgs stated there should be some way to craft a very limited exemption for a temporary use on an established commercial thoroughfare; that does not solve Mr. McCoig’s problem, which is tricky; and the way to do it may be for staff to suggest the most limited way in terms of the amendment with an interpretation that might allow people to take a limited amount of dirt for a limited period of time away from a parcel if the road was already commercial in character. She stated she does not know Burgess Road, but assumes that is the case; and for a limited amount, limited size, and limited period of time, it would make sense.

Mr. McCoig stated he agrees with that thinking; and advised when they came in for rezoning, they agreed to allow only one house per acre, and part of the compensation that the owner was going to receive was removal of the dirt to place on other lots he owns. Commissioner Higgs stated she remembers that because they were talking about stormwater retention in the back; Mr. McCoig was talking about excavating lakes to improve the aesthetics of the community; but what is really happening is sale of or exchange of value on the dirt.

Chairperson Colon inquired if staff understands what is being requested; with Natural Resources Management Director Conrad White responding he has a good idea. Commissioner Higgs recommended looking at the most narrow way of getting there. Mr. White stated staff will bring back a range of options for the Board to consider.

Commissioner Higgs stated rock is being hauled every day on Willowbrook Road; and recommended considering the character of the road. She stated she does not remember the property around it, but the Board can at least look at it. Chairperson Colon stated she is willing to look at it.

Mr. Elliott stated he is willing to pull together some traffic generation data and present it to staff to support his position that Willowbrook Road is the Blackhawk Quarry haul road. Commissioner Higgs stated the Board knows what, but there are other people living on the road; and that is a concern. She stated when the Board adopted the Ordinance, it was trying to protect surrounding property owners.

Chairperson Colon stated the key word is temporary. Mr. Elliott advised his would be one year in duration; with Commissioner Higgs responding that might be a problem for the neighbors.

PERMISSION TO PARTICIPATE IN BIDDING, RE: ACQUISITION OF HOGAN LANDFILL
PARCELS

County Attorney Scott Knox stated he put this on the Agenda because there was notice that there was a tax deed sale scheduled for September 18; the property is the Hogan landfill that at one time was being used as an illegal landfill, which the County was forced to file suit to shut down; and the County did that and FDEP did some criminal prosecutions. He stated subsequently the taxes have not been paid so the tax deed has been issued; and the sale is scheduled for September 18, 2003. He stated the Board is able to bid at the sale to get the property under County control as opposed to some private party doing that; there were rumors that some people involved in the former transaction with the illegal landfill might be interested in taking up the property; and he brought this to the Board’s attention to see if it has any intention of getting involved as there was a problem in the past.

Chairperson Colon stated it is difficult to make these kinds of decisions with only three Commissioners present; and inquired if it could be discussed on Thursday. Mr. Knox noted Thursday the 18th is the tax deed sale. Chairperson Colon stated the discussion is about participating in the bidding; with Commissioner Higgs responding if the Board is going to participate in bidding, it will have to commit money and if it wins the bid, it will have to buy the property.

Commissioner Pritchard stated it says the minimum bid for the tax deed is $14,900; and inquired would the Board be buying this against some sort of tax that is owed on the property; with Mr. Knox responding the taxes are owed; and the certificates are in the County’s hands. Commissioner Pritchard inquired who owns the property now; with Mr. Knox responding Atlantic Investments, Inc., which was Mr. Hogan’s corporation. Commissioner Pritchard inquired does the winner of the bid receive 18% investment on whatever the bid is; with Mr. Knox clarifying the winner of the bid pays the outstanding taxes due plus accrued interest and gets the deed for the property. Commissioner Pritchard stated the reason Mr. Knox is suggesting the County get the deed is to prevent another illegal landfill from being created; with Mr. Knox advising that is correct. Commissioner Pritchard inquired what kind of money would they be talking about; with Mr. Knox responding it is hard to say who is going to bid on it; the County could bid $14,900 and win; and part of that would come back to the County because it is tax money.

Commissioner Higgs inquired how many acres is it; with Mr. Knox responding 38.19 acres.

Commissioner Pritchard stated on the other hand someone could bid $50,000; and inquired what they would secure for $50,000; with Mr. Knox responding they would get a deed to 38.19 acres subject to whatever encumbrances and problems are there. Commissioner Pritchard inquired if they could secure ownership from that. Mr. Knox advised typically the tax deed is issued; the successful bidder gets the tax deed and files a suit to quiet title; and if a judge finds there are no outstanding interests superior to the one that is acquired by the tax deed, they acquire the title and get fee simple interest in the property. Commissioner Pritchard inquired if they had ownership of the property, could they use it as a landfill; with Mr. Knox responding it would be illegal to use it as a landfill; but that has not stopped anybody from trying in the past. Commissioner Pritchard inquired if they cannot use the landfill for that purpose, what is the concern. Mr. Knox stated the concern is it was a problem once; and he wanted to bring it to the Board’s attention. Commissioner Pritchard stated he appreciates that but the Board does not know what kind of money it would be committing itself to; and as long as they cannot introduce another landfill, maybe the Board should pass on it.

Chairperson Colon stated bidding starts on Thursday. Commissioner Higgs inquired if it starts at noon; with Mr. Knox responding he does not recall the time. Chairperson Colon stated she would be more comfortable with the other two Commissioners being present.

Commissioner Higgs inquired what use does the property have at this point; with Mr. Knox responding it is designated residential on the land use map; and that is why they cannot use it. Commissioner Higgs inquired how much capacity is there; with Mr. Knox responding if the zoning and land use were changed on it, it would probably be quite a bit. Commissioner Higgs stated it already has a C&D landfill on the site that is closed; with Mr. Knox agreeing.

Commissioner Pritchard inquired if it was used for anything besides C&D; with Mr. Knox responding Mr. Hogan’s original intended use, as portrayed to the Variance Board, was a horse farm. Commissioner Pritchard inquired if it is a matter of hazardous waste; with Commissioner Higgs responding the Board does not know. Mr. Knox stated it was not supposed to be, but things were found there that were not supposed to be there. Commissioner Higgs stated there was a lot of illegal dumping; stuff was coming up from South Florida; and there was a major investigation. Mr. Knox stated they found some asbestos and oil drums; they were afraid there was medical waste; but they could not find it. Commissioner Pritchard stated Mr. Hogan has a piece of property that he has not paid taxes on; with Mr. Knox advising it is his corporation; and Mr. Hogan is deceased now. Commissioner Pritchard stated the corporation has not paid taxes on this property; the alternative is for someone to pick up the tax deed and pay the taxes, and then hopefully not develop it into another landfill; and Mr. Knox does not think they could get permission to make it into a landfill. Mr. Knox stated they would not be doing it legally, although the Legislature has made several attempts to change the law in the last couple of years.

Chairperson Colon inquired what happens if someone wants to turn it into a residential area even though there was illegal dumping; with Mr. Knox responding it is possible, but he is not sure anybody would want to do it.

Commissioner Higgs suggested it could be a park; and suggested bidding $14,900, and if the County can pick it up for that price, it is okay. Mr. Knox stated the tax money would just be moving money from one pocket into another pocket; with Commissioner Higgs stating it would not be like losing the money.

Commissioner Pritchard stated the County would be losing the tax money; if the Board buys it, it would come off the tax roll; and the Board would be paying to take it off the tax roll. He stated he wonders who else is going to come forward and what other choices there are; and inquired if someone does not pay their taxes, what happens. Mr. Knox responded he thinks ultimately the County will end up with it one way or the other if someone does not buy it. Commissioner Pritchard stated the only question is what someone might do if they bought it; and the Board has the power to not allow the zoning to build another landfill, which keeps it on the tax rolls. Mr. Knox stated that is true as long as the Legislature does not say the County no longer has the power to stop C&D landfills. Commissioner Pritchard stated everything is possible; he appreciates Mr. Knox bringing this forward; but he would rather leave the property with someone who may throw some dollars toward the tax revenue and see what progresses.

Commissioner Higgs stated if the Board did offer the $14,900 and later determined it was not in the County’s best interest, it could sell the property; with Mr. Knox concurring. Chairperson Colon stated it would be uncomfortable trying to sell something that is not environmentally safe; with Commissioner Higgs advising they would sell it with all those things divulged, and the Board does not know it is not safe.

Commissioner Pritchard reiterated his suggestion that the Board pass on the sale.

ANNOUNCEMENT

Commissioner Pritchard stated he said earlier that there was a Value Adjustment Board meeting on Thursday; but that was a tentative date; and there is no Value Adjustment Board meeting then. He stated it still works better for him because of another commitment to keep the meetings as previously scheduled.

Chairperson Colon stated there will be an executive session at 1:45 p.m. and a budget workshop at 2:00 p.m.

WARRANT LIST

Upon motion and vote, the meeting was adjourned at 6:44 p.m.

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

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SCOTT ELLIS, CLERK

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