October 15, 2002
Oct 15 2002
MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
October 15, 2002
The Board of County Commissioners of Brevard County, Florida, met in regular
session on October 15, 2002, at 9:00 a.m. in the Government Center Commission
Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were:
Chairman Truman Scarborough, Commissioners Randy O’Brien, Nancy Higgs,
and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.
Absent was: Commissioner Jackie Colon.
ANNOUNCEMENT
Chairman Scarborough stated Commissioner Colon will not be present today as her brother-in-law was badly burned in an accident last week; and she is in New Jersey with her family.
The Invocation was given by Father Dave Conway, St. Peter’s Church, Melbourne,
Florida.
Chairman Truman Scarborough led the assembly in the Pledge of Allegiance.
APPROVAL OF MINUTES
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve the Minutes of July 23, 2002 Regular Meeting, July 25, 2002 Special Meeting, and August 13, 2002 Regular Meeting. Motion carried and ordered unanimously.
CITIZEN REQUEST, RE: CONNECTION OF WASHINGTONIA FROM LAKE WASHINGTON
ROAD TO NORTH END OF JONES ROAD
County Manager Tom Jenkins stated Robert Leichtenberg has requested that Item VI.A.4. be withdrawn from the agenda and rescheduled at a later time.
The Board withdrew request by Robert L. Leichtenberg concerning connection of Washingtonia Drive from Lake Washington Road south to the north end of Jones Road from the agenda, as requested by Mr. Leichtenberg.
PRESENTATION, RE: FIND REIMBURSEMENT CHECKS
Ted Moorhead, Florida Inland Navigation District (FIND) Commissioner, stated FIND is pleased to be a partner with Brevard County in providing waterway-related recreational resources; the County has a wonderful network of docks, piers, waterfront parks, and boat launch facilities that have been designed and constructed by the Parks and Recreation Department; each year, FIND looks at grant requests from such Department; most of the requests FIND is able to look upon favorably because of the fine work the Department does in planning and getting difficult permits; the fruition of it is the award of a Waterways Assistance Program Grant from FIND to help in the design and construction of the projects; and he is pleased to present two checks. He noted the first check in the amount of $279,469 is for Lee Wenner Park Redesign and Construction, which has been completed and dedicated; and the second check in the amount of $32,672 is for Spaceview Park Dock Replacement Project. Mr. Moorhead presented the checks to Parks and Recreation Director Charles Nelson; and stated FIND looks forward to working with Brevard County in the future for the benefit of the residents.
REPORT, RE: RE-OPENING OF LEE WENNER PARK
Commissioner O’Brien stated he went to the ribbon cutting ceremony for the re-opening of Lee Wenner Park; staff did a fabulous job; Lee Wenner was a County Commissioner for 26 years; and the playground is nice for the children.
REPORT, RE: GRAZING OF CATTLE IN GML ZONING CLASSIFICATION
Commissioner O’Brien stated it has come to his attention that the grazing of cattle is prohibited in Government Managed Lands (GML) zoning classification; it may be beneficial for staff to provide a report on the possible inclusion of such use as long as certain conditions are adhered to; currently there is a circumstance in North Merritt Island where the School Board owns 20 acres of old orange groves; and in an attempt to limit the amount of bush hogging the parcel will require, the School Board entered into a lease agreement to have a limited number of cows graze the property. He noted the property was once zoned agricultural; it continues to abut agricultural zoning, but has since been rezoned to GML; and requested staff return to the Board with a report on the issue.
Motion by Commissioner O’Brien, seconded by Commissioner Higgs, to direct staff to investigate the possible inclusion of grazing cattle in GML zoning classification as long as certain conditions are adhered to, and return with a report. Motion carried and ordered unanimously.
REPORT, RE: DUCT TAPE
Commissioner O’Brien stated this morning on the radio it was mentioned that duct tape is the best cure for warts; such tape should be left on the wart for six days; the tape is then removed; and one should use a nail file over the wart, wash the area with soap and water and then dry it. He noted duct tape should be put on the wart a second time for an additional six days, repeat the aforementioned procedure, and apply duct tape again for the third time for six days, remove such tape, and the wart will be gone.
BIRTHDAY GREETINGS, RE: LAURA SMITH HIOTT
Commissioner Higgs recognized the 102nd birthday of Laura Smith Hyatt, resident of District 3; stated Ms. Hyatt was born on Mullet Creek in South Brevard County in 1900; and she continues to live in Palm Bay and is active in a number of events.
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the Board to send Laura Smith Hyatt a birthday card in recognition of her 102nd birthday. Motion carried and ordered unanimously.
REPORT, RE: HENEGAR CENTER FOR THE ARTS
Commissioner Carlson stated the Brevard Cultural Alliance (BCA), through its Sample The Arts Program, is proud to have Henegar Center for the Arts in the lobby to inform individuals of the Program; and Jerry Briese is present to explain the Program.
Jerry Briese, Executive Director of Henegar Center for the Arts, expressed appreciation to the Board for its continued support of the Community Cultural Grants Program; stated it enables the Henegar Center for the Arts to do a lot of great things for the community; the Henegar Center does a lot of quality community programming for entertainment, such as Broadway musicals; and the Center is a community resource, a home to several not-for-profit arts organizations, and a venue of choice for fund raisers and service organizations. He noted it also hosts the Community Services Council, American Red Cross, and American Lung Association; it is an economic development tool for the city, drawing traffic for local businesses, encouraging tourism, enhancing quality vacations, and aiding the downtown redevelopment issues; it has an education outreach through its Children’s Program; and it has professional touring shows for children. Mr. Briese stated the Henegar Center is currently restoring a 1926 building, the old Melbourne High School; it is on the National Registrar of Historic Buildings; and there is a display in the lobby for those individuals interested in the programs and events.
FINAL PLAT APPROVAL AND ACCEPT RIGHT-OF-WAY DEED FOR FOLSOM ROAD,
RE: WALKABOUT PUD
Chairman Scarborough requested the item be discussed at the end of the meeting as there are issues that need to be addressed.
RESOLUTION, RE: PROCLAIMING NATIONAL EPILEPSY AWARENESS MONTH
Commissioner Carlson read aloud a resolution proclaiming the month of November, 2002 as National Epilepsy Awareness Month.
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution proclaiming the month of November, 2002 as National Epilepsy Awareness Month and
RESOLUTION, RE: PROCLAIMING NATIONAL EPILEPSY AWARENESS MONTH
encouraging all Brevard County residents to be supportive of those afflicted with this disability. Motion carried and ordered unanimously.
RESOLUTION, RE: RECOGNIZING FILIPINO-AMERICAN ASSOCIATION OF BREVARD
COUNTY, FLORIDA, INC.
Commissioner Higgs read aloud a resolution recognizing Filipino-American Association of Brevard County, Florida, Inc.
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution recognizing Filipino-American Association of Brevard County, Florida, Inc. for its efforts to share and preserve the Filipino cultural heritage. Motion carried and ordered unanimously.
Marina Harris, President of Filipino-American Association of Brevard County,
Florida, Inc., expressed appreciation to the Board and community for their support;
stated the month of October is nationally celebrated as Filipino-American History
Month to commemorate the first landing of the Filipinos on the continent of
the U.S.A.
Commissioner Higgs presented the Resolution to President Marina Harris, Director Romeo Delapaz, and Treasurer Salvie Bedwelle. She stated it is Filipino-American History Month; and the Association provided the Board with a Resolution in recognition of same.
Chairman Scarborough stated the Americans share a particular unique history with the Filipinos going back to World War II; and it is good to have the Association as a part of the Brevard County community, as well as American history.
RESOLUTION, RE: PROCLAIMING DISABLED AMERICAN VETERANS FORGET-ME-NOT
WEEKS
Commissioner O’Brien read aloud a resolution proclaiming October 17th through 31st, 2002 as Disabled American Veterans Forget-Me-Not Weeks.
Motion by Commissioner O’Brien, seconded by Commissioner Carlson, to adopt Resolution proclaiming October 17th through 31st, 2002 as Disabled American Veterans Forget-Me-Not Weeks and urging the support of all citizens, businesses, and organizations in this worthy effort. Motion carried and ordered unanimously.
RESOLUTION, RE: PROCLAIMING NATIONAL PHARMACY WEEK
Commissioner O’Brien read aloud a resolution proclaiming October 20 through 26, 2002 as National Pharmacy Week in Brevard County.
Motion by Commissioner O’Brien, seconded by Commissioner Carlson, to adopt Resolution proclaiming October 20 through 26, 2002 as National Pharmacy Week in Brevard County, Florida, and urging all citizens to acknowledge the valuable services of pharmacists to provide safe, affordable, and beneficial pharmaceutical care services and products to all citizens. Motion carried and ordered unanimously.
Jamel Ann Bethune, representing the pharmacists, stated she is a graduate of
Rockledge High School; she attended pharmacy school at Florida NM University;
she is also a graduate of Youth Leadership Brevard; and it is a great honor
to return to Brevard County and practice. She noted she is a pharmacists with
CVS Pharmacy; such Pharmacy will be opening three stores in Brevard County next
Sunday, October 20, 2002; and the Pharmacy is looking forward to serving the
citizens of Brevard County with two stores in Melbourne and one store in Merritt
Island.
Commissioner O’Brien presented the Resolution to Ms. Bethune.
RESOLUTION, RE: PROCLAIMING HISPANIC HERITAGE MONTH AND COMMENDING
WFIT 89.5 FM RADIO STATION
Commissioner Carlson read aloud a resolution proclaiming September 15 to October 15, 2002 as Hispanic Heritage Month and commending WFIT 89.5 FM.
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution proclaiming September 15 to October 15, 2002 as Hispanic Heritage Month and commending WFIT 89.5 FM as a community resource serving the Spanish speaking citizens of Brevard County. Motion carried and ordered unanimously.
A representative of the Hispanic Heritage community expressed appreciation to
the Board for the Resolution.
Commissioner Carlson presented the Resolution to the representative.
FINAL PLAT APPROVAL, RE: SONOMA AT VIERA, PHASES 1 AND 2
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final plat approval for Sonoma at Viera, Phases 1 and 2, subject to minor changes, if necessary, receipt of all documents required for recording, and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.
FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: VISTA WIND
SUBDIVISION
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Vista Wind Subdivision, subject to minor engineering changes as applicable, and developer obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.
FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: EDGEWATER
LANDINGS SUBDIVISION
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Edgewater Landings Subdivision, subject to minor engineering changes as applicable, and developer obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.
FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SONOMA SOUTH
SUBDIVISION
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Sonoma South Subdivision, subject to minor engineering changes as applicable, and developer obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.
CONTRACT WITH THE VIERA COMPANY, RE: IMPROVEMENTS IN WINGATE ESTATES,
PHASE 1
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Contract with The Viera Company guaranteeing infrastructure improvements in Wingate Estates, Phase 1. Motion carried and ordered unanimously.
REQUEST FOR WAIVER, RE: FLAG STEM AND EASEMENT LOT SIZE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to waive the five-acre minimum requirement for two lots sharing the same access strip under Section 62-102, Brevard County Code; and approve reconfiguration of the parcels to preserve a significant number of oak trees along the northern property line. Motion carried and ordered unanimously.
RESOLUTION, RE: REVISING DEVELOPMENT APPLICATION REVIEW FEES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution revising development application review fees to eliminate dependency of the Development
RESOLUTION, RE: REVISING DEVELOPMENT APPLICATION REVIEW FEES
Review Program on the General Fund. Motion carried and ordered unanimously.
BINDING DEVELOPMENT PLAN AGREEMENT WITH BILLIE J. AND JEANETTE TURNER,
RE: PARCEL EAST OF U.S. 1, SOUTH OF SUNTREE BOULEVARD
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Binding Development Plan Agreement with Billie J. and Jeanette Turner for parcel east of U.S. 1, south of Suntree Boulevard. Motion carried and ordered unanimously.
LEGISLATIVE INTENT, RE: DISTINCTION BETWEEN STRUCTURAL WALLS AND
WALLS/
FENCES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve legislative intent for amendment to Section 62-1102 to allow non-supporting walls constructed as a fence to be exempt from setback. Motion carried and ordered unanimously.
LEGISLATIVE INTENT, RE: RR-1 MINIMUM LOT DEPTH
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve legislative intent for modification of the minimum lot depth requirement of RR-1 from 200 feet to 125 feet. Motion carried and ordered unanimously.
ACKNOWLEDGE RECEIPT OF ORDINANCE #2002-24 FROM CITY OF WEST
MELBOURNE, RE: ANNEXATION
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to acknowledge receipt of Ordinance #2002-24 by the City of West Melbourne involving annexation of approximately 19 acres along the north edge of Eber Road, mid-way between Hollywood Boulevard and Dairy Road. Motion carried and ordered unanimously.
INTERLOCAL AGREEMENT WITH TOWN OF MELBOURNE BEACH, AND RESOLUTION
AUTHORIZING EXECUTION OF LOCAL AGENCY PROGRAM AGREEMENT WITH
FLORIDA DEPARTMENT OF TRANSPORTATION, RE: MELBOURNE BEACH
HISTORIC PIER
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Interlocal Agreement with Town of Melbourne Beach, adopt Resolution authorizing execution of Local
Agency Program Agreement with Florida Department of Transportation, and execute the LAP Agreement for funds to design and reconstruct Melbourne Beach Historic Pier. Motion carried and ordered unanimously.
AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, RE: MERRITT
ISLAND AIRPORT POND PROJECT
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with St. Johns River Water Management District for a $100,000 grant to partially fund the Merritt Island Airport Pond Water Quality Enhancement Project. Motion carried and ordered unanimously.
APPROVAL, RE: OPEN PURCHASE ORDER WITH BREVARD CULTURAL ALLIANCE
FOR
FY 2002-03
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve an open Purchase Order with the Brevard Cultural Alliance for expenditures of Office of Tourism Development and the Tourist Development Council in the amount of $194,922. Motion carried and ordered unanimously.
RESOLUTION, RE: EXTENDING BREVARD COMMISSION ON AGING
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution extending the Brevard Commission on Aging until September 30, 2005; and authorize a workshop on aging in January or February 2003. Motion carried and ordered unanimously.
AGREEMENT WITH FLORIDA DEPARTMENT OF HEALTH, RE: OPERATION OF
BREVARD COUNTY HEALTH DEPARTMENT FOR FY 2002-03
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with State of Florida, Department of Health for operation of the Brevard County Health Department for FY 2002-2003 in the amount of $372,415, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH BREVARD ALZHEIMER’S FOUNDATION, INC., RE: ADULT
DAY
CARE SERVICES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Brevard Alzheimer’s Foundation, Inc. in the amount of $95,000 to provide adult daycare services, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH BREVARD WOMEN’S CENTER, RE: HOUSING ASSISTANCE
AND
MENTAL HEALTH COUNSELING SERVICES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Brevard Women’s Center in the amount of $45,200 to provide housing assistance/case management and mental health counseling services, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH COMMUNITY SERVICES COUNCIL, RE: SENIOR SERVICES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Community Services Council in the amount of $111,795 to provide a Senior Nutrition Program, Senior Assistance Program, and Caregiver Support Program, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH CHILD CARE ASSOCIATION OF BREVARD COUNTY, INC., RE:
SUBSIDIZED CHILD CARE ASSISTANCE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Child Care Association of Brevard County, Inc. in the amount of $81,900 to provide subsidized child care assistance, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH CENTRAL BREVARD SHARING CENTER, INC., RE: SUBSIDIZED
MEDICAL PRESCRIPTION ASSISTANCE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Central Brevard Sharing Center, Inc. in the amount of $65,000 to provide subsidized medical prescription services, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH PREVENT OF BREVARD, INC., RE: ROBINS NEST RECOVERY
HOME PROGRAM
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Prevent of Brevard, Inc. in the amount of $35,911 for Robins Nest Recovery Home Program, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AGREEMENT WITH NORTH BREVARD CHARITIES SHARING CENTER, INC., RE:
EMERGENCY MEDICAL PRESCRIPTION ASSISTANCE AND HOUSING PROGRAMS
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with North Brevard Charities Sharing Center, Inc. in the amount of $38,765 for Emergency Medical Prescription Assistance and Housing Programs, from October 1, 2002 through September 30, 2003. Motion carried and ordered unanimously.
AMENDMENT TO AGREEMENT WITH CROSSWINDS YOUTH SERVICES, INC., RE:
REGULATORY COMPLIANCE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Amendment to Agreement with Crosswinds Youth Services, Inc. to maintain regulatory compliance. Motion carried and ordered unanimously.
AMENDMENT TO AGREEMENT WITH SPACE COAST MARINE INSTITUTE, INC., RE:
REGULATORY COMPLIANCE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Amendment to Agreement with Space Coast Marine Institute, Inc. to maintain regulatory compliance. Motion carried and ordered unanimously.
PERMISSION TO ADVERTISE PUBLIC HEARING AND APPOINT REVIEW COMMITTEE,
RE: AVAILABILITY OF FY 2001-02 AND FY 2002-03 HOME AND SHIP FUNDS
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise the availability of State Housing Initiatives Partnership Program funds and HOME Investment Partnerships Program funds for the acquisition and construction or rehabilitation of affordable rental housing programs for extremely-low income persons with severe and persistent mental illness, to be submitted by not-for-profit and for-profit agencies using the RFP package developed by the Community Revitalization Program staff and reviewed by the Affordable Housing Council and Commission on Mental Health and Community Solutions; and appoint the Affordable Housing Council to review and rank the submitted projects and make funding recommendations to the Board. Motion carried and ordered unanimously.
PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACT, AND APPROVE
BUDGET
CHANGE REQUEST, RE: RENOVATION OF PIER AT ROTARY RIVERFRONT PARK
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the advertisement of bids, award to the lowest qualified bidder, and execution of the Contract by the Chairman for renovation of the pier at Rotary Riverfront Park; and authorize a Budget Change Request in the amount of $106,000 from the Brevard Boating Improvement Fund. Motion carried and ordered unanimously.
PROJECT AGREEMENT AMENDMENT WITH FLORIDA INLAND NAVIGATION DISTRICT
(FIND), RE: GRANT FOR ROTARY PARK RIVERFRONT DOCK REPLACEMENT
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute a Project Agreement Amendment with the Florida Inland Navigation District for a one-year extension of the grant for Rotary Riverfront Dock Replacement. Motion carried and ordered unanimously.
AGREEMENTS TO EXTEND EXISTING LEASE AGREEMENTS WITH CITY OF SATELLITE
BEACH, RE: HIGHTOWER BEACH PARK AND PELICAN BEACH PARK
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreements to Extend Existing Lease Agreements with City of Satellite Beach for Hightower Park and Pelican Beach Park until November 28, 2027 under the same terms and conditions of the previous Agreements. Motion carried and ordered unanimously.
MEMORANDUM OF AGREEMENT WITH FLORIDA DIVISION OF FORESTRY, RE:
MANAGEMENT AND HARVEST OF TIMBER FROM EEL SITES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Memorandum of Agreement with Florida Division of Forestry to supervise management and harvesting of timber from EEL sites solely for habitat restoration. Motion carried and ordered unanimously.
APPROVAL, RE: RENAMING OF PONCE LANDING PARK AS JUAN PONCE DE LEON
LANDING PARK
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve renaming Ponce Landing Park as Juan Ponce De Leon Landing Park. Motion carried and ordered unanimously.
CONTRACTUAL SERVICES AGREEMENT WITH FLORIDA DEPARTMENT OF
TRANSPORTATION, RE: SOLID WASTE COLLECTION AND DISPOSAL
SERVICES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Contractual Services Agreement with Florida Department of Transportation for its collection and disposal needs within the County except for debris generated from any construction project under contract by FDOT. Motion carried and ordered unanimously.
PERMISSION TO BID, AWARD BID, EXECUTE CONTRACT, AND TERMINATE EXISTING
CONTRACT, RE: HOUSEHOLD USED SHARPS PROGRAM
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to bid, award to the lowest qualified bidder, and authorize the Chairman to execute a two-year Contract with two one-year renewal options for collection and disposal services for the Solid Waste Management Department’s Household Used Sharps Program; and terminate the existing Contract with Stericycle. Motion carried and ordered unanimously.
INFRASTRUCTURE COST SHARING AND LIEN AGREEMENT WITH PIERCE HARDY
LIMITED PARTNERSHIP, BRENT WILLIAMS, AND STEVEN ANDERSON, AND
ESCROW AGREEMENT WITH LANDAMERICA, INC., RE: CENTRALIZED SEWER
SERVICE TO PORTIONS OF THE TOWN OF PALM SHORES AND BREVARD
COUNTY
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute an Infrastructure Cost Sharing and Lien Agreement with Pierce Hardy Limited Partnership, Brent Williams, and Steven Anderson for centralized sewer service to portions of the Town of Palm Shores and unincorporated Brevard County, and an Escrow Agreement with LandAmerica, Inc. Motion carried and ordered unanimously.
APPROVAL OF REVISIONS, RE: POLICY BCC-23, TANGIBLE PERSONAL PROPERTY
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve revisions to Policy BCC-23, Tangible Personal Property. Motion carried and ordered unanimously.
SETTLEMENT AGREEMENT WITH FLORIDA DEPARTMENT OF TRANSPORTATION,
RE: SPACEPORT TRANSPORTATION CORRIDOR MODIFICATIONS PROJECT
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Settlement Agreement with Florida Department of Transportation (FDOT) for the Spaceport Transportation
SETTLEMENT AGREEMENT WITH FLORIDA DEPARTMENT OF TRANSPORTATION,
RE: SPACEPORT TRANSPORTATION CORRIDOR MODIFICATIONS PROJECT
Corridor Modifications project to be funded by FDOT’s Transportation Outreach Program. Motion carried and ordered unanimously.
EXECUTION OF SATISFACTION OF MORTGAGE, RE: ISABELLA LANE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the Director of Housing and Human Services to execute the Satisfaction of Mortgage for Isabella Lane (deceased) in Brevard County Case #05-2000-CC-004529 upon receipt of $100.00. Motion carried and ordered unanimously.
RESOLUTION AND COUNTY DEED, RE: TRANSFERRING JIMMY MOORE PARK TO
CITY
OF MELBOURNE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution and execute County Deed transferring title of Jimmy Moore Park to the City of Melbourne. Motion carried and ordered unanimously.
AGREEMENT WITH ECONOMIC DEVELOPMENT COMMISSION OF FLORIDA’S
SPACE
COAST, RE: ECONOMIC DEVELOPMENT SERVICES FOR FY 2002-03
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Economic Development Commission of Florida’s Space Coast as the County’s primary marketing, retention, and recruitment agency for economic development for FY 2002-03. Motion carried and ordered unanimously.
APPOINTMENTS, RE: MELBOURNE BEACH PUBLIC LIBRARY ADVISORY BOARD
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint Karen Greer, Lynn Normile, and Ann Sepri to the Melbourne Beach Public Library Advisory Board, with terms of appointments expiring December 31, 2002. Motion carried and ordered unanimously.
APPROVAL, RE: BILLS AND BUDGET CHANGES
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the Bills and Budget Changes. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS
IN
FAWN LAKE PUD, PHASE 2, UNIT 3 - JEFFREY KIRCHEL
Chairman Scarborough called for the public hearing to consider a resolution vacating public utility easements in Fawn Lake PUD, Phase 2, Unit 3, as petitioned by Jeffrey Kirchel.
There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution vacating public utility easements in Fawn Lake PUD, Phase 2, Unit 3, as petitioned by Jeffrey Kirchel. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY (ELMO STREET)
IN
CLEARLAKE VILLAGE UNRECORDED SUBDIVISION - MARTIN VAN SCHENK
Chairman Scarborough called for the public hearing to consider a resolution vacating right-of-way (Elmo Street) in Clearlake Village Unrecorded Subdivision, as petitioned by Martin Van Schenk.
Commissioner O’Brien stated the item indicates an objection has been received from BellSouth; but the petitioner has agreed to grant an easement to BellSouth for the facilities.
Road and Bridge Director Bill Osborne advised that the easement has been granted and there are no further objections from BellSouth. Commissioner O’Brien inquired if everything else is clear; with Mr. Osborne responding affirmatively.
There being no further comments or objections heard, motion was made by Commissioner O’Brien, seconded by Commissioner Carlson, to adopt Resolution vacating right-of-way (Elmo Street) in Clearlake Village Unrecorded Subdivision, as petitioned by Martin Van Schenk. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN CATALINA ISLES ESTATES, UNIT 4 - CLARENCE AND BARBARA
TUTTLE
Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easement in Catalina Isles Estates, Unit 4, as petitioned by Clarence and Barbara Tuttle.
Commissioner O’Brien stated the item indicates an objection has been received from NUI City Gas saying that a gas line runs underneath a portion of the deck and the petitioners have been advised and removed that portion of the easement area from the vacating request; and inquired is there anything wrong with this item.
Road and Bridge Director Bill Osborne there is nothing wrong with it and there are no objections at this time.
There being no further comments or objections heard, motion was made by Commissioner O’Brien, seconded by Commissioner Higgs, to adopt Resolution vacating public utility and drainage easement in Catalina Isles Estates, Unit 4, as petitioned by Clarence and Barbara Tuttle. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN
BAREFOOT BAY, UNIT 1 - ABBOTT MANUFACTURED HOUSING, INC.
Chairman Scarborough called for the public hearing to consider a resolution vacating public utility easements in Barefoot Bay, Unit 1, as petitioned by Abbott Manufactured Housing, Inc.
There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution vacating public utility easements in Barefoot Bay, Unit 1, as petitioned by Abbott Manufactured Housing, Inc. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENT IN
WOODBRIDGE AT SUNTREE, UNIT II - STEPHEN AND VIRGINIA HESSEN
Chairman Scarborough called for the public hearing to consider a resolution vacating public utility easement in Woodbridge at Suntree, Unit II, as petitioned by Stephen and Virginia Hessen.
Attorney Jack Spira, representing the applicants, stated Mr. Hessen is present to answer any questions.
There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution vacating public utility easement in Woodbridge at Suntree, Unit II, as petitioned by Stephen and Virginia Hessen. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: APPEAL OF STAFF DENIAL OF LAND ALTERATION PERMIT
FOR RALPH McCOIG
Chairman Scarborough called for the public hearing to consider an appeal of staff denial of land alteration permit for Ralph McCoig.
Sherry Williams, Environmental Permitting, stated this is an appeal of a staff denial for a land alteration permit; and the denial was based on the haul road being a local road, which is prohibited by the existing Land Alteration Ordinance.
PUBLIC HEARING, RE: APPEAL OF STAFF DENIAL OF LAND ALTERATION PERMIT
FOR RALPH McCOIG
Chairman Scarborough inquired are there residential properties around where the traffic would be going by homes; with Ms. Williams responding affirmatively.
Commissioner Carlson stated the issue was brought to the County’s attention based on a notice of violation for land clearing and borrow pit operation in a residential area; and inquired is it supposed to be referred to the special master.
Ms. Williams stated the Ordinance allows for an applicant to file an application for an after-the-fact permit or restore the site; the applicant chose to file for an after-the-fact permit; unfortunately, the County had to deny the permit due to the haul road issue on the local road; and if the Board upholds the staff denial, staff would proceed with enforcement.
Chairman Scarborough stated Mr. McCoig is appealing staff’s decision; he does not see any compelling reason to reverse staff’s decision; and it is a dangerous precedent to do so.
There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to deny the appeal by Ralph McCoig of staff’s denial of his land alteration permit application. Motion carried and ordered unanimously.
Chairman Scarborough requested staff encapsulate their thoughts shared on activities
by homes that may be considered part of the element, and send it to each Commissioner
either for reference or to take further action should a Commissioner sees a
need.
PUBLIC HEARING, RE: REQUEST FOR VARIANCE TO COASTAL SETBACK LINE
BY
ROY E. ROSSINI AND RICHARD W. MULLER
Chairman Scarborough called for the public hearing to consider a request for variance to the Coastal Setback Line by Roy E. Rossini and Richard W. Muller.
Ed Fleis, representing the applicants, stated this particular application is for a variance of 25 feet from the Coastal Setback Line for the subject project located in the unincorporated area of south Cocoa Beach; in reference to Ordinance No. 85-17, this site qualifies for a 25-foot variance and would qualify for a 37-foot variance; but the limitation in the Ordinance is for 25 feet. He stated when the Ordinance was prepared, it was based on the premise that some erosion would take place on an ongoing basis along the entire shoreline; but this particular piece of property has been measured to have 12 feet of accretion. He noted the accretion is a natural accretion that has occurred at the site; when looking at data that would have supported the accretion when the Board commissioned Olson and Associates to do a study of the shoreline, erosion, and condition of the shoreline, the Company estimated from 1972 to 1986, one could expect to have one-half foot per year of accretion; and it is a site that, because of submerged land conditions or whatever, is favorable for accretion rather than erosion. Mr. Fleis provided documentation to the Board but not the Clerk; stated the first page is an aerial photograph that shows the proposed building relative to the 1981 Coastal Construction Control Line and the 25-foot Brevard County Setback Line; the particular building located on site is perpendicular to the north and south property lines; it is at a slight angle to the Coastal Construction Control Line; and the south end would be approximately three feet off of the Coastal Construction Control Line based on the northeast corner being on the Coastal Construction Setback Line. He noted it is important to look at what happens in this particular neighborhood with the existing buildings; many of the buildings have been built substantially seaward of the Coastal Construction Control Line; the second exhibit is the 1972, 1997, and 2002 profiles; the last profile was taken after beach renourishment; the third exhibit is from the Olson Report that has reflected a one-half foot accretion per year; and the final exhibit is a copy of the site plan that was submitted as part of the application. Mr. Fleis stated the site plan shows the proposed building, its proposed location, and adjacent buildings; with approval of the 25-foot variance, the building would be located approximately 45 feet landward; there is approximately a 75-foot native vegetative area that would be landward of the building; and as part of mitigation, any pepper trees on the entire site would be removed. He noted the applicant has proposed as additional mitigation to plant 40 feet of sea oats; the yellow highlighted area shows the extent that beach renourishment has occurred on the site; it has added approximately 200 feet on the site; and the westerly part of the site shows the building which is 75 feet long, plus a portico in front. Mr. Fleis stated parking has been provided under the building, including one handicapped space; the applicants are trying to preserve a vegetative buffer; and for the site to work, it needs the 25-foot variance as work trucks need a certain radius. He noted as part of the mitigation, the applicants have also agreed to prohibit armoring of the shoreline; the variance does not affect or injure adjacent property owners; by granting the variance, the applicants are 45 feet landward of the existing buildings and the continuous building line; and requested the Board’s approval of the variance. He stated there are a number of other issues on the agenda relative to what consideration should beach renourishment take on the granting of variances and is there a better way to measure accretion or erosion; and he hopes they will be separate issues and this item can be looked at on the merits that it meets all the criteria for approval of a variance.
Commissioner Higgs stated the report indicates that an analysis of the profiles shows eight feet of accretion; it would be accretion by some natural means; based on what has been done in the Cocoa Beach area and south of Port Canaveral, it would seem that eight or twelve feet of accretion came as a result of the sand bypass and other artificial means; and requested staff speak to the issue.
Virginia Barker, Environmental Management, stated there have been several projects that placed sand on the beach either in that area or north of that area; the largest was a three million cubic yard project placed in Cape Canaveral in 1974; there is data that shows how that enormous contribution of sand into the system has migrated south along the shoreline; and it is why it looks like there was accretion along the shoreline in the 1980’s in the information provided by Mr. Fleis. She noted it was due to sand from the 1974 project migrating south into Cocoa Beach; by the mid 1980’s, the sand had roughly dissipated throughout the system and the beaches became erosional again; and by 1986, the average rate of erosion from 1948 to 1986 is a negative number again.
Commissioner Higgs inquired was there an event in the mid-1990’s that added sand to the system. Ms. Barker responded there was the first sand bypass in 1995 and the second bypass in 1998, but neither of those was a significant enough amount of sand to reverse the erosion trend all the way in southern Cocoa Beach where the property is located; in 2000, the first phase of the Shore Protection Project was constructed, placing another 2.8 million cubic yards of sand in the system; and that is what is shown on Mr. Fleis’ latest drawings that looks like a large amount of accretion in front of the property. Commissioner Higgs noted based on Ms. Barker’s experience and knowledge of the information, it may be an error to say that accretion has occurred at this site due to natural events. Ms. Barker stated if one subtracts all of the sand that man has placed there to try to restore the shoreline, it is a highly erosional shoreline, losing on the average of 156,000 cubic yards a year along approximately a two and one-half mile stretch.
Commissioner O’Brien inquired how many cubic yards of sand is the County bypassing at the Port on an annual basis. Ms. Barker responded currently the bypassing rate is 156,000 cubic yards per year; it is not done each year and is done as scheduled on a six-year rotational basis; and there are only three years between the first bypass and the second bypass as the material placed in 1995 was finer than it should have been and it almost immediately disappeared from the system. Commissioner O’Brien inquired is the County losing 150,000 cubic yards of sand per year. Ms. Barker responded the inlet is blocking 210,000 cubic yards a year; the Port is required to bypass 156,000 cubic yards per year; the reason for the difference is that the 156,000 cubic yards is thought to preserve the current shoreline location; and if the County bypassed the full 210,000 cubic yards that are blocked, it would have an accreting shoreline. She noted the County’s shoreline prior to installation of the inlet and navigation channel at Port Canaveral was accretional; 210,000 cubic yards of sand a year passed by the present location of the Port and got deposited on the down drift beaches and made them accretional; that sand has all been blocked by the inlet now; and all that the federal government does is bypass just enough sand to try to maintain the present shoreline location. Commissioner O’Brien stated the County is trying to maintain the present shoreline location; there would be 12 feet of accretion with the proposed project; and the County is trying to maintain the 12 feet. Ms. Barker noted when she said present shoreline location, she should have said baseline location for the Shore Protection Project, which is probably 60 to 70 feet shoreward of the shoreline that Mr. Fleis showed in his exhibit. Commissioner O’Brien stated there was 12 feet accretion, which occurred due to other bypass or dredging operations; and inquired if the County is trying to maintain the 12 feet plus 50 or 60 feet of beach. Ms. Barker responded there are several confusing problems here; the way the current Ordinance has staff evaluate erosion versus accretion is to measure the point at the base of the dune where it intersects the beach face; it is possible for the whole beach and dune to accrete the way one would expect when someone says there is 12 feet of accretion; and it is also possible for a storm to erode the bottom of the dune, making it steeper and unstable, and a little while later, the entire system slumps and sand is lost from the top of the dune and the base of the dune moves seaward. She noted if one is only looking at that point, it has moved seaward 12 feet; but in looking at the volume of sand between the ocean and proposed structure, there is less sand providing shore protection. Commissioner O’Brien inquired how many million cubic yards of sand has the County put on the beach; with Ms. Barker responding in 2000-2001, it added 2.8 million cubic yards of sand to the beach.
Commissioner O’Brien noted something good has occurred, but the County keeps going back to it like it is bad; he does not understand the thought process that says the County restores the beach, bypasses sand, and tries to maintain the restoration; but say at the same time, the wave could come along tomorrow morning and take away a dune that accreted 12 feet out, which is now 50 feet from the normal high tide mark instead of five feet; he is having a problem digesting that as the beach has been restored and the County expects it to erode away in 30 years like it did the first time because of the lack of total renourishment; and it loses 210,000 cubic yards and will only replenish the beach by 156,000 cubic yards. He stated the beach is at a point that it was 20 or 30 years ago. Ms. Barker noted along the particular shoreline, the Army Corps of Engineers’ project baseline to maintain for the next 50 years, is approximately 40 feet shoreward of where the shoreline was in 1949; the federal government will not be restoring or maintaining what the shoreline was prior to installation of the inlet and channel at Port Canaveral; the shoreline, although it has been temporarily restored, is known to be highly erosional; the sand placed there will erode; and unless the federal government stands by its Agreement to maintain this project, there will be an erosional problem along the shoreline. Commissioner O’Brien inquired is the beach line at this time the same beach line in 1948; with Ms. Barker responding negatively. Ms. Barker responded the project baseline is approximately 40 feet upland of where the shoreline was in 1949. Commissioner O’Brien inquired is the beach now 40 feet shorter than it was in 1949; with Ms. Barker responding affirmatively. Commissioner O’Brien stated the shoreline is up to 75 or 80 feet longer than it was in 1998; with Ms. Barker responding that is correct. Commissioner O’Brien inquired if the federal government is going to try to maintain such shoreline. Ms. Barker responded the Board has an Agreement with the federal government to maintain it if federal dollars are available, but from prior experience, getting such dollars is extremely difficult. Commissioner O’Brien stated the beach is out there 70 feet; the Army Corps of Engineers is going to try to maintain it; the beach line is 40 feet shorter than it was in 1949, which is 53 years ago; the beach is at a point it was 53 years ago, less 40 feet; and inquired is that an accurate statement. Ms. Barker responded she would have to look at more recent surveys to tell Commissioner O’Brien more precisely, but give or take 20 feet.
Commissioner Carlson inquired would the same accretion perspective the County is under right now apply based on the variance by the applicants, or has it applied the new formula.
Sherry Williams, Environmental Permitting, responded the County cannot apply the new formula as there is no dune cross-section profile; and based on the toe of the slope, the applicants would have demonstrated accretion.
Commissioner Higgs stated the County has to recognize that natural accretion is unlikely to have occurred at this point; the accretion came as a result of the interventions that have come about since the original construction of the project that the federal government constructed; and most anything that is going on in that location is not a natural phenomenon, either the high degree of erosion or accretion. She stated the Board has to grapple with what it is going to do in terms of a new ordinance, whether or not to look at the volume, and look at what is going to happen on all the properties in the area. She noted there are a number of properties that could be considered for redevelopment or some other activity in the future; that is relevant; and if the Board wants to encourage redevelopment in the area that is not in the same location to make it economically viable, it is going to have to do heavy thinking about what it is going to allow there. Commissioner Higgs stated the structures south and north of the vacant lot are way out; and the shoreline is hardened along some of the properties. She stated she is reluctant to grant a variance; she does not believe that natural accretion occurred at the site; if the Board wants to bring some of the structures further back from the shoreline, it has to grapple with a real difficult issue; and this project has to be looked at in the whole context of what the Board is going to do. She noted she is not ready to approve or disapprove this item until the County does an analysis of how it is going to bring a greater compliance; inquired if the Board says no variance, when it looks at other properties, is it going to be able to get any kind of redevelopment that gets off of the dune; stated those are some of the questions the Board needs to look at; and a better criteria needs to be established to evaluate when it considers a variance.
Commissioner O’Brien stated the applicants are requesting a 25-foot variance to the Coastal Setback Line; and they are setting back much further than the structures on both sides of them.
Commissioner Higgs requested staff explain when a variance may be considered. Ms. Williams stated Section 62-4209(8) reads, “The maximum extent of any variance granted in this Section shall be the difference between 25 feet and the actual erosion experienced on the subject property as determined by the Board at a public hearing.” Commissioner O’Brien noted if there is three feet of erosion then the variance can be 22 feet possibly; and inquired if there is accretion by 12 feet, would the applicants be eligible for 37 feet. Mr. Peffer responded 25 feet is the limit; and the 25 feet takes the applicants to the Coastal Construction Control Line. Commissioner O’Brien stated the parcel of property is not experiencing erosion and asking for a 25-foot variance; the applicants meet the criteria for up to 25 feet and may be considered for the 25-foot variance; Mr. Fleis has brought forward strong evidence that the property has shown accretion and erosion is not occurring; and he cannot see why the Board would not allow this project to attain the 25-foot request.
Chairman Scarborough stated he cannot support the variance request; in the past, the Board has discussed the hardening issues and individuals losing their properties and homes in the area; the County is losing the beach and trying to preserve it with federal funds; the issue totally ignores a major storm event; and that is what the Board heard over and over again from the residents in the area. He noted it is ridiculous to talk about this in any sense when the County is having to beg the federal government for money to put sand in and then pretend things are going right; it is wrong; and the Board needs to deny the request today.
Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to deny the request by Roy E. Rossini and Richard W. Muller, represented by Ed Fleis, for a variance to the Coastal Setback Line. Motion carried and ordered; Commissioner O’Brien voted nay.
Motion by Commissioner Higgs, to authorize staff to proceed with amendments to Section 62-4209 to only consider coastal setback variances where natural accretion has occurred as measured by the toe of the dune and cross-section area.
Commissioner Carlson suggested not considering a variance unless natural accretion
is shown be included in the motion; stated if variances are based on natural
accretion, there will not be a lot of questions; and the County can narrow it
down and be more legitimate about the concerns, as well as the statistics.
Commissioner Carlson seconded the motion.
Commissioner O’Brien stated the County is not going to achieve natural
accretion in areas like Cape Canaveral or Cocoa Beach unless the Port is closed
and the deep water channel is removed; the erosion along Patrick Air Force Base
and further south is caused by the channel at Port Canaveral; it is going to
be erosional forever; and it is never going to change. He noted there cannot
be much of a difference between natural accretion and man-made accretion by
putting sand through a bypass; by saying natural accretion, it means the Board
will never want to hear Coastal Setback variances as natural accretion is not
going to occur except in the South Beaches and Sebastian Inlet; it is not fair;
and by taking the word “natural” out, it is looking at things in
a more realistic picture. He stated it is not the fault of the landowner that
there is erosion at the beach; the fault goes back to the deep-water channel
at Port Canaveral; and it is why the federal government signed an Agreement
for 50 years.
Chairman Scarborough stated this is the first action to do amendments; and the Board has an opportunity to fine tune it and receive community comments.
Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner O’Brien voted nay.
The meeting recessed at 10:15 a.m. and reconvened at 10:30 a.m.
REQUEST FOR INVESTIGATION, RE: USE OF CLERK OF COURT PERSONNEL
Michael Fitzgerald stated he is present today as a private citizen; he will point out specific instances where he believes Clerk of Courts Scott Ellis is operating outside the jurisdiction of his office and using his staff to do so; he will also illustrate the harm being inflicted on the court system by Mr. Ellis going outside of his jurisdiction and getting into other Constitutional Officers’ business; and he will ask for certain relief he hopes the Board will grant to get Mr. Ellis to perform full-time the duties of his office to allow other Constitutional Officers to get on with their business. He noted he has a letter dated July 2, 2002 from Finance Director Stephen Burdett addressed to the Board pertaining to the Sebastian Inlet Taxing District; it questions how the District is spending its money it is collecting; the District does not come under the jurisdiction of the Clerk of Courts; it is an independent Taxing District that reports to the State; and inquired why is Mr. Ellis getting involved in the District’s business. Mr. Fitzgerald stated Mr. Ellis and Mr. LaRue, Administrator of the Taxing District, are not too fond of one another; and inquired is Mr. Ellis using his position as Clerk of Courts to badger a State official outside his jurisdiction and using his staff to do so. He noted it is Mr. Ellis’ contention that the County, in setting its millage rates, must abide by CAPIT; a referendum passed in 1996 has since been found unconstitutional in many counties throughout the State; Sheriff Philip Williams and Kay Burk, Director of Brevard Cultural Alliance, petitioned the court for injunctive relief to stop the County from abiding by CAPIT; and Mr. Ellis brought an attorney to the injunctive relief hearing under the purview of his Clerk of Courts’ position and requested CAPIT be enforced on the County. He inquired is Mr. Ellis within his jurisdiction to use his staff to question millage rates; stated millage rates are not within the jurisdiction of the Clerk of Courts and are the responsibility of the Board; Mr. Ellis may try to point out that he is protecting the Charter; but there are State laws that have higher authority than the Charter. Mr. Fitzgerald advised the judge ruled in favor of the Sheriff and Ms. Burk, and told the Board it cannot abide by CAPIT due to the likelihood of it being found unconstitutional; Mr. Ellis told the Board he is going to appeal CAPIT all the way to the Supreme Court; inquired is Mr. Ellis going to do it under the purview of the Clerk of Courts or as a private citizen; and is Mr. Ellis allowed to do it using his staff. He stated nowhere in Florida Statutes or case law does he find that the Clerk of Courts has power over millage rates; reiterated it is a power with the Board; Sheriff Williams told Mr. Ellis at the last budget hearing he was playing “high stakes poker” with people’s lives by trying to enforce CAPIT; if CAPIT was enforced, a certain amount of deputies could not be hired; and after the September 11, 2001 tragedy, it is an avenue the Board should not be going down. Mr. Fitzgerald noted in the last several months, Mr. Ellis has been actively campaigning to get Jim French elected to the Board; during working hours, while Mr. Ellis’ staff is working, Mr. Ellis is out waving signs, doing political commercials, radio shows, and whatever he can do to get Mr. French elected; and inquired is Mr. Ellis getting paid $117,000 a year to be a political consultant. He stated Mr. Ellis and his office have no post auditing functions within the County; he asked for an audit of the Solid Waste Management Department and the Board approved it to make sure no departments under its jurisdiction were doing anything wrong; and Mr. Ellis never had any authority to do it, but did so anyway. He noted it is well chronicled by the Florida Supreme Court and it has admonished the Brevard County Clerk of Courts for not getting to it the number of cases the Clerk of Courts has; if the Supreme Court does not have the number of cases on hand and Brevard County needs additional judges, it is not going to get them; one woman he spoke to has been trying to get a divorce trial set to get away from an abusive husband; and she cannot get a trial date for seven months. Mr. Fitzgerald stated since May 2002, ACS State and Local Services, the contracted agency that collects delinquent fines for the County, has continuously contacted the Clerk’s Office to get files on delinquent fees; up until October 2002, the Company has received nothing from the Clerk’s Office; such Company has offered to send two of its representatives from Texas to assist Mr. Ellis in getting the files; and Mr. Ellis’ office did not have the courtesy to call the Company back. He noted the longer delinquent fines go uncollected, the trail of getting them collected gets weaker; and requested the issues he has raised today be submitted to the Florida Commission on Ethics to see whether or not the Clerk of Courts is within his authority to challenge the duly-elected Constitutional Officers in Brevard County. He stated Mr. Ellis is taking the County into uncharted waters; in all of his years in politics, he has never seen a Clerk of Court have this power; and there needs to be an objective opinion. Mr. Fitzgerald challenged Mr. Ellis to openly accept the inquiry; stated if Mr. Ellis has nothing to hide, he has nothing to worry about; the citizens of Brevard County have a right to know if a duly-elected official is misusing his office for individual political gain at taxpayers’ expense; and it has always been the County’s position to let inquiries go forward. He noted now is not the time to change that practice; more than once the County has bent to the wishes of Mr. Ellis and given him inquiries into the County’s business; and now the shoe is on the other foot.
Commissioner Carlson inquired did anyone on staff or the Board have anything to do with Mr. Fitzgerald bringing the item forward; with Mr. Fitzgerald responding no.
Commissioner O’Brien inquired what would the County be saying this morning if the court had ruled the other way on CAPIT and said it was constitutional and legal; stated Mr. Fitzgerald made a statement that there was an injunction from a judge that said the CAPIT was unconstitutional; and inquired what if the Board decided to raise taxes in defference to the mandate. Mr. Fitzgerald responded the only point he is bringing out is that the Board could have questioned it; it is not within the jurisdiction of the Clerk of Courts; the Board is in charge of millage rates; and it is not in the purview of the Clerk. He noted Mr. Ellis could have done it as a private individual, but when he uses his office to argue that claim, it is not legitimate and within his jurisdiction. Commissioner O’Brien stated Mr. Fitzgerald mentioned it took seven months for an individual to get a trial date for a divorce; out of his own experience two years ago, it took him about two months to get a trial date. Mr. Fitzgerald noted individual judges have his or her own dockets and it depends on the judge; seven months in any court to get a trial date is unacceptable; and justice delayed is justice denied. Commissioner O’Brien stated he agrees with that; his own experience was different than the individual Mr. Fitzgerald mentioned; he is not sure it is indicative of everyone who applies for a trial, whether it be for a divorce or other reasons; and perhaps it does not happen all the time to everyone, and therefore is not consistent.
Clerk of Courts Scott Ellis stated the issue today is not that the Clerk’s Office has been a failure, it is that the Office has been a success; when he began office, he promised the employees before the year was out that the Office would be turned from the worst place to work in Brevard County government to the best place to work; and that happened. He noted dozens of ridiculous rules were abolished; and two simple guidelines were implemented—(1) to trust employees to know their jobs, and (2) trust employees to do their jobs. He stated everything else is training, resource management, and search for better ways and means; the management pyramid was flattened so that no employee had more than one supervisor, one manager, and him; and convoluted lengthy changes of command were eliminated to focus more on getting the job done than worrying about who was responsible for whom. Mr. Ellis stated it all worked and he knew it would work, as all the employees needed was freedom to do their jobs; he believed in their resolve and ingenuity, and they came through; and the job has gotten done.
He noted when he started in the Clerk’s Office, there was no general ledger; it was eight months before the accounting programs were operable; one of the primary things the Board wanted was the numbers from the Clerk’s Office; and when the program was running, the employees worked 24 hours per day to get the ledger current. He stated the Office went from a $700,000 deficit in 1999-2000 to a $500,000 surplus in 2001-2002; evidently, a $1 million turnaround seems to qualify as doing virtually nothing; of that surplus, his Office has returned to the County nearly $250,000 this year for equipment, drug court, auditing expenses, and personnel settlements; and last year and this year, County Court has been supplemented with nearly $300,000 in fees, further offsetting funds from the County. Mr. Ellis noted when he went into office, the employees were overburdened with work, rework, overtime, errors, and irrational working conditions; everyone set out to correct those problems the first few months and they did; they commenced to decreasing the huge backlog of work left from the November, 1999 computer meltdown; millions of dollars in unassigned monies were matched to cases; and thousands of backlog cases were disposed. He stated 60,000 letters were sent to drivers of delinquent fines; errors in data entry and filing plunged; hardware has been upgraded; and his Office now runs a third-shift operation at the jail. He noted upgrades to the Internet have been accomplished; eviction times have been cut by well over half; the Information Center no longer has calls backed up for 15 to 30 minutes; and his Office has surpassed prior recording volume records, covered additional expansion of Dependency Court without adding staff, has a handle on the File Room issues, and opened up lines of communication throughout the entire Office. Mr. Ellis stated traffic cases were updated; license suspensions were sent to Tallahassee; debt records are being sent to the collection agency contracted by the County this year; and court clerks now go to court with a complete file, less data entry errors, and doable workload that was unimagined less than two years ago. He noted all of it was not his work, but the work of his employees; he put his faith in the employees’ ability to get the job done and listened to their input; he voluntarily transferred people all over the County to find their niche in the Clerk’s operation; and Information Systems Department, which has been heavily maligned, has worked untold hundreds of hours of overtime to get employees the best tools it could to get the job done. He stated the Clerk’s Office works as a team; the employees pulled the office out of a disaster that no one could fathom; instead of getting the credit, Mr. Fitzgerald, who has probably not set foot in any of the courthouses probably in the last four years, has the gall to state that the Clerk’s Office has done virtually nothing to rectify the problems of his predecessor. Mr. Ellis noted not one of the four major critics, Mike Fitzgerald, Tom Jenkins, Sue Carlson, or the Editorial Page of the Florida TODAY have any concept of how the Clerk’s Office operates; none of those critics have bothered to ask his employees their thoughts on the Office today and the Office two years ago; unlike certain other local governments, the employees of the Clerk’s Office are free to speak their mind; and he does not hover over them as a waiting sensor. He stated he expects the employees to tell the truth and they are free to tell the truth; and he does not sensor anything that comes out of his Office. He advised of the numerous erroneous memoranda received from the County attacking the Clerk’s Office on an ongoing basis; his Office spends time on each memoranda, pointing out the errors in numbers; and when County staff has no answers, the issue is either dropped or taken offline. Mr. Ellis stated in the last few weeks there has been a gross status distortion on the collection agency repeated again today by Mr. Fitzgerald; in spite of the information, the Clerk’s Office sent the County information showing his Office has been in constant contact with the agency since June, 2002 and not since October, 2002; his Office had a memo that came in last Wednesday that it had sandbagged $900,000 in traffic fines; it has yet to receive an answer; and his Office received a bill for $145,000 from Information Systems for the same services that one year ago cost $25,000. He noted it has been claimed that his Office sandbagged $400,000 in non-recurring computer software; he has yet to have any information sent to him; and his Office also received a bill for $25,000 for the ticket audit, which was transferred to the County two weeks ago. Mr. Ellis stated he requested information from the County concerning Sarno Landfill; it took five months trying to get the information; the documents are public record and should not have been withheld; and it was later determined that the documents did not exist. He noted it is based on his Office’s diligence on the landfill and CAPIT that he is here today; it has nothing to do with how his Office runs; given the choice of being beaten into submission or submitting to the County, he is not going to strip the Office of its powers to avoid a public flogging and he is not going to submit to political blackmail; and the fact is that some County staff is unhappy that their predictions of total failure for the Clerk’s Office during the campaigns of 2000 have proven to be incorrect. He stated he is not here because of the failures in the Clerk’s Office, but because it will not play ball with the County and run things its way; he is before the Board today because he has shown that an office can be run and be successful with leadership, respect, trust, and communication; there is no room in the Clerk’s Office for fraud, lies, intimidation, fear, and unethical behavior; and because his Office’s success is an embarrassment to the way County government has been run from the top, that is why he is before the Board today. Mr. Ellis stated the letter to Sebastian Inlet Taxing District from County Finance was based on a report that came through the Clerk’s Office; his Office did not come before the Board and argue about the District; it sent the letter and Mr. Burdett talked to Chairman Scarborough on the issue; and that was the end of it. He noted Mr. Fitzgerald did all this on his own and did not have any input from the rest of the County on what the issues were; the Clerk’s Office is intervening on the side of the County concerning CAPIT; it is the job of the County to defend the Charter; and the County should be pleased the Clerk’s Office is there to intervene on the issue. He stated he can wave a sign for anybody he wants to when he gets off work; he does not wave signs during work; he does not care what Mr. Fitzgerald does after work; and if Mr. Fitzgerald wants to run around with political signs, write letters, and support his favorite Commissioner, he can do anything he wants to. Mr. Ellis noted when Mr. Fitzgerald sees a commercial on television, it is not live, but taped; when the commercial was on television, he was not in the studio but at the office; and the fact that Mr. Fitzgerald hears a radio advertisement or television advertisement does not mean he is at the radio station. He stated the post audit function is still within the purview of the Clerk’s Office; it does not have funding for it; he understands it is within the purview of the Board if it chooses to fund that function; but it is not within the purview of the Board to strip the Clerk’s Office of that ability. He noted there is an independent auditor; it does not mean that his Office cannot pursue an audit function on its own and the issuance of public records; the whole issue today is a show trump; that is why he is here; and Mr. Fitzgerald is here because the Clerk’s Office is not playing ball with the County with a bunch of bogus things that he has brought forth for an ethics violation. Mr. Ellis stated he does not care if the County wants to investigate his Office; the accusations of ethics are totally wrong; and the other thing that is totally wrong is that the Clerk’s Office has gone downhill or not made any progress because it has made a lot of progress. He noted the whole issue is bull from a man that has not been in a courthouse; Mr. Fitzgerald works for the County because he is not a practicing attorney; and it is a joke that he calls himself an attorney and the implication that he spends time in the courthouse when he has no concept what the Clerk’s Office does.
Florence Paton stated she disagrees with Mr. Ellis; she gives high regard to the County Manager for not going into the courthouse; she refuses to partake in any more of the corruption or fraud taking place within the courts; the judges are doing illegal activities; and the lawyers are being allowed to do whatever they wish. She noted domestic violence, child abuse, child molestation, and women’s rights are being ignored; women and children are being harmed by the courts; Mr. Ellis is aware of her case; and her children were removed from her by Judge Torpy, even though the evidence was presented of all the abuse. She stated the appeal court orders have been ignored by the court; she went into court almost one year ago to have an appeal court mandate enforced; Mr. Ellis was present when she was informed that none of the judges in the courthouse were going to do anything for her children or herself; and what matters is what happened in the Eighteenth Judicial Circuit. Ms. Paton stated the Eighteenth Judicial Circuit has ignored women and children; she is a victim of domestic violence and was severely abused by her ex-husband; her children have been abused and molested; and she has been in court since 1996 and has had three appeals, all of which have been ignored. She noted Judges Torpy, Rainwater, and Jacobus have ignored the last issues; Mr. Ellis has been informed that there are many other women and children that are being harmed; there is corruption within the court; records are being sealed and documents are being removed; and child support and the laws are not being enforced, but ignored. She stated the courts are ruining lives in the County; there needs to be a full investigation of the Viera Courthouse, Mr. Ellis included; there needs to be a system that works for the people; children are crying out for help; and something needs to be done.
Dick Gregory stated he supports Mr. Ellis; he is being threatened with an investigation of his Office; and inquired is it because he exposed a lot of rotten deals going on, one involving several million dollars profit made in one day on a County land purchase. He noted the profit was not for the County or its taxpayers and citizens; he cannot understand how somebody can purchase a piece of property in the morning and sell it in the afternoon to Brevard County for $4 or $5 million profit when there was no appraisal; the Board should proceed with the tax cap and follow the guidelines; and the land deal that Mr. Ellis is investigating happened before with the School Board. Mr. Gregory stated he is proud he blew a whistle there as the School Board did not purchase the property; such property was not appraised properly; and the same thing has happened again.
Lillian Banks stated she wonders where the Board and Mr. Fitzgerald were when Sandy Crawford was Clerk of Courts and everything was going down the tubes; the Constitution of the State of Florida, Article 8, Section 1, Paragraph D, reads, “When not otherwise provided by a county charter or a special law approved by vote of the electors, the clerk of the circuit court shall be ex-officio clerk of the board of county commissioners, auditor, recorder, and custodian of all the county funds.” She noted the Board needs to follow the Constitution and give Mr. Ellis back his ability to audit; Mr. Fitzgerald must have had something to do with the landfill deal since he is an employee of Solid Waste Management Department; and inquired why is Mr. Fitzgerald attacking Mr. Ellis. Ms. Banks stated Mr. Ellis has nothing to hide; if the County has nothing to hide, everyone needs to move on; and requested the County not use her tax money to investigate Mr. Ellis. She noted she is tired of the County using her money for investigations and suits.
Jim Doyle stated he has known Mr. Ellis for a number of years; he is giving good service to the citizens in his new capacity as Clerk; he is doing an admiral job and is well liked; and he is known throughout the County for his integrity. He noted Mr. Ellis is an outspoken person; requested the Board consider the source of the complaint; and vote to deny the request for an investigation as it is frivolous.
Bea Polk expressed concern about using taxpayers’ money to go all the way to the Supreme Court; stated if Mr. Ellis, as an individual, wants to take his money and hire an attorney to fight the cap, she is all for it; Mr. Ellis has done some good work; Property Appraiser Jim Ford should have done his work instead of Mr. Ellis doing it for him; and Mr. Ford never defends anything and always gets somebody else, but it is still taxpayers’ money. She noted the taxpayers should not fund money for anyone to go to the Supreme Court if the court decides CAPIT is not right; when she voted for it, she was under the impression that the cap was on ad valorem taxes and the 3%; Mr. Ford never went with 3%; his last budget was nearly 5%; and the people who are fighting for something should take their own offices and decrease their budgets to 3%. Ms. Polk stated taxes need to be decreased; she does not know if an investigation is needed or not; maybe Mr. Ellis would like to come forth and give everything everybody wants without having to go through such an investigation; Mr. Ellis’ office is not the only office that should be investigated; and the County needs to do more investigation.
Pat Hartman stated she is a Commissioner of Sebastian Inlet Taxing District, but is not speaking for the District; Mr. Fitzgerald mentioned the District and indicated that Mr. Ellis sent a letter concerning the District’s budget; if it is improper for Mr. Ellis to do so, the Board, a few weeks ago, interfered with the activities of an independent State entity; and there was a project in Indian River County that the Board voted unanimously to send a letter about to the Army Corps of Engineers and Department of Environmental Protection (DEP).
Dale Young stated it is too bad that Mr. Ellis was not here in the last several years when the citizens went through all the rip-off scams that the County has perpetrated, including golf courses and Viera; he wishes Mr. Ellis had been present to help protect, as the State law demands that he protect County revenues; Mr. Ellis is doing his job; and he is one of the few people he has seen that is doing his job the way he is hired to do it. He noted the citizens need Mr. Ellis’ intervention; County Attorney Scott Knox does not represent Brevard County and represents the Board; any suit that comes before the Board, Attorney Knox has the option of letting the taxpayers foot the bill and slide by the way; and that is the option the Board has on the CAPIT suit, which was put in a memorandum from Attorney Knox. Mr. Young stated the citizens need someone like Mr. Ellis to look after the County; if the Board wants an investigation, it should approve same; and it should investigate what happened with the Sarno Landfill when there were phony appraisals and also investigate the CAPIT. He noted the Board’s own panel indicated it should pay attention to the CAPIT; the panel did not say CAPIT was unconstitutional; one individual said he thought it was unconstitutional; but it has not been acted upon yet; so the Board has nothing but opinions. He stated the Board is saying that the County has no right to a charter and the Commissioners are going to decide what the people want; the citizens have a constitutional right to a Charter; and he hopes Mr. Ellis can do something to preserve it.
Cheryl Palmer stated if the Board decides to approve an investigation, because of Mr. Ellis’ integrity and attention to detail, he will be cleared of all kinds of problems; the County will have wasted the taxpayers’ money and time; Mr. Ellis can stand up to the scrutiny; and she does not know that the Solid Waste Management Department can. She noted there is some retribution going on, not only for exposing a problem within a County department, which is part of Mr. Ellis’ job and what the citizens expect him to do, but also in taking part in an election; she also takes part in elections and supports candidates; and inquired does it mean that her office will be subject to scrutiny and investigation because she exercises her constitutional rights as a citizen. She stated Mr. Ellis was within the purview of his job to defend CAPIT and the Charter; the citizens know Mr. Ellis is home-grown and not a transplant; and he has the honesty and integrity to look out for citizens’ interest.
Chairman Scarborough stated the Board asked Florida Department of Law Enforcement (FDLE) to investigate the Sarno Landfill issue as there was a question as to who could properly investigate; there is an ongoing investigation; and hopefully in 30 to 60 days, there will be a report from somebody from the State of Florida doing it independently. He noted questions were raised concerning CAPIT by two Constitutional Officers regarding the methodology and interpretation of CAPIT; the panel ruled with the two Constitutional Officers contrary to what the County Attorney had said; the Sheriff sued the Board; the court enjoined the Board, it is still in the court system; but until something is heard further, the court has advised that the Board should not follow the CAPIT provision. He stated any time one gets into a concept of who should investigate who and which manner, the County needs to be careful as the country was founded on the basis of checks and balances; it is a fundamental failure if people understand this is to be something derogatory or wrong; any time one is in public office, he or she should criticize and welcome criticism; and if he or she does not, they do not understand that the founding fathers trusted no one. Chairman Scarborough noted there were comments about the court system; there is a separation of powers; the Board does not have any overflow into the court system as to what the Clerk does and what other Constitutional Officers do; there is a flowing back and forth of checks and balances; and when Florida was founded, there was an idea that constitutional officers were to be independent and have certain authorities exist to check the power of the boards. He stated the Constitutional Officers are independently elected; to say one is acting inappropriately is subjective and a matter of opinion; he does not believe there is a need to do anything regarding the Clerk’s Office; but other Commissioners may feel differently.
Commissioner Carlson stated she has no problem with the Clerk; the only thing she has requested of Mr. Ellis is a plan; she received a punch list of things that have been accomplished, which she has been asking for; the only reason she is asking for any information is because it is hard to make important budgetary decisions based on a punch list; and she wanted a plan which included the problem, a solution, and the steps to get to the solution to solve the problem at the courthouse, along with the performance measurements and cost. She noted she has not received the information in that type of layout; she will be happy to send a memorandum to the Clerk so he will understand exactly what she is looking for; and she is not looking for a punch list of things that were accomplished, because it is not in the context of the big picture.
Commissioner Higgs stated Mr. Fitzgerald’s position in the Solid Waste Management Department was after the acquisition of the property for the landfill, so any implication that he was a part of that acquisition is not accurate; in the system of government, there are checks and balances; individual citizens have the right to take issues to appropriate venues and have them considered concerning the Board and Constitutional Officers; and there are items the Board has asked outside agencies to audit and investigate to be sure that it is doing what is proper and right. She noted at this point, Mr. Fitzgerald has the right to take his issues to whatever venue he chooses to do so; as far as the Board taking any appeals forward from here, she is not interested in doing that today; but she will maintain her responsibility and obligation, both as a citizen and elected official, to fully look at the issues of agencies within the County.
The meeting recessed at 11:18 a.m. and reconvened at 11:31 p.m.
DISCUSSION, RE: VACATE UNUSED COUNTY RIGHTS-OF-WAY IN SUNTREE
Commissioner Carlson stated this is not a vacation of the right-of-way in Suntree as discussed previously, but about how far the County has gotten on finding out about the possibility of vacating the rights-of-way along St. Andrews Boulevard and Interlachen Road; and requested staff clarify the issue.
Assistant County Manager Peggy Busacca stated in May 2002, the Board requested staff investigate the possibility of vacating the unused rights-of-way along Interlachen Road and St. Andrews Boulevard in Suntree; staff has contacted all the utility departments and County agencies; there is no unused rights-of-way along those Roads; and the Roads are being utilized for the utilities of City Gas, Florida Power and Light Company, BellSouth, Time Warner, and the City of Cocoa. She noted there are comments from each of the agencies that say the Homeowners Association or property owner, whoever the property was vacated to, could provide an easement to allow the lines to continue; in some cases, there may be cost to relocate the facilities; at this time, staff believes the roadway would be vacated back to the adjoining property owners; and in some cases it is the Association, and in other cases individual property owners. Ms. Busacca stated the Board could decide today whether it wants to move forward to vacate the property; it could wait for an application from the property owners or it could provide staff direction; and a public hearing would have to be advertised in order to vacate.
Commissioner Carlson inquired what else is required based on the initial request in May 2002.
Ms. Busacca responded the only thing staff has not told the Board is to whom the property would be vacated; for the majority of the property, it would be the Suntree Master Homeowners Association; but in some instances, there are single-family homes that immediately abut the rights-of-way; and the vacating would go to them. Commissioner Carlson noted the Board does not have that information; with Ms. Busacca responding staff does not have a specific list, but will provide it shortly.
Bob Rogan, Suntree Master Homeowners Association, stated the Association is more than willing to work with the Board, staff, and residents along the rights-of-way to get all the rights-of-way transferred to the Association; and it is open to any suggestions.
Commissioner Carlson stated the Board needs to continue this item; it needs to be careful about ownership of those parcels to make sure the Association has full authority on making the decision for what happens on the rights-of-way; and if that cannot occur, there could be serious implications to the Suntree area. She recommended staff work with the Association concerning the terms of ownership, as transfer of the rights-of-way by individual property owners to the Association is critical. She noted the County needs to make every effort to do what is right for the community.
County Manager Tom Jenkins stated staff will be happy to meet with the Association as soon as it obtains additional information.
PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 74-90, ARTICLE V,
PROHIBITING SLEEPING OR CAMPING ON CERTAIN PUBLIC PROPERTIES
Chairman Scarborough called for the public hearing to consider an ordinance amending Section 74-90, Article V, Prohibiting Sleeping or Camping on Certain Public Properties.
Bob Hartman stated he has a problem with the ordinance saying that nobody can sleep on the beach in Brevard County; it is not the place he moved to 50 years ago; it is not right; he realizes people living in condominiums do not want people sleeping in front of their condos; but the beach is public property and there has to be somewhere to sleep on the beach. He noted it is ridiculous to say no one can sleep on the beach in Brevard County since there are 90 miles of beach.
Chairman Scarborough stated if a youth group wanted to sleep on the beach, the ordinance would prohibit it. Mr. Hartman stated he slept on Cocoa Beach back when people were allowed to drive on it. Chairman Scarborough noted people were residing on the beach, which caused the problem. Mr. Hartman noted the ordinance does not include the word “residing”; there used to be rules about camping; and it was a way to deal with problems of transients during the Great Depression.
Commissioner O’Brien stated section 2 of the ordinance reads, “. . . property where the County has authorized camping or overnight sleeping”; so if someone wants to sleep on the beach, including a youth group, camping group, or group of tourists, they could contact Parks and Recreation Department to get authorization to do so. Mr. Hartman noted he does not know what areas the Board has authorized as it is not included in the ordinance. Commissioner O’Brien stated it would be those properties that abut County unincorporated areas; and the cities control their purview of the beaches.
Chairman Scarborough stated the ordinance does not set out all the ways everything happens in Parks and Recreation; if someone wants to do something at Wickham Park, there are separate rules; and to define everything in an ordinance does not make it easier and makes it harder. He noted the system works; staff is very proactive in trying to make it work for the citizens so they can utilize things like parks and beaches; and he does not see a problem with the ordinance. Mr. Hartman stated the ordinance reads, “No person shall be arrested and imprisoned for a violation, unless that person has refused an offer to be placed in a homeless shelter that has shelter beds available, or on public property where the County has authorized camping or overnight sleeping.” Chairman Scarborough stated the ordinance is contemplating a person who does not have a home; and if the individuals have homes, the County understands they have elected to be on the beach for their own evening experience.
There being no further comments or objections heard, motion was made by Commissioner O’Brien, seconded by Commissioner Carlson, to adopt Ordinance of the Brevard County Board of County Commissioners amending Section 74-90, Article V, of the Code of Ordinances of Brevard County, Florida, prohibiting sleeping or camping on certain public property by providing for arrests only of persons who have refused the offer of shelter space when shelter beds are available; providing for exemptions; providing for severability; and providing for an effective date. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: RESOLUTION AUTHORIZING TRANSFER OF NON-EXCLUSIVE
CABLE TELEVISION SYSTEM FRANCHISE FROM TIME WARNER
ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP TO ADVANCE/
NEWHOUSE PARTNERSHIP
Chairman Scarborough called for the public hearing to consider a resolution authorizing transfer of non-exclusive cable television system franchise from Time Warner Entertainment-Advance/Newhouse Partnership to Advance/Newhouse Partnership.
There being no comments or objections heard, motion was made by Commissioner O’Brien, seconded by Commissioner Higgs, to adopt Resolution authorizing and consenting to the transfer of the non-exclusive cable television system franchise from Time Warner Entertainment-Advance/Newhouse Partnership, to a wholly-owned subsidiary, and management thereof by Advance/Newhouse Partnership; and providing an effective date. Motion carried and ordered unanimously.
REPORT, RE: RESIDENTIAL BUFFER ORDINANCE
Permitting and Enforcement Director Ed Washburn stated the Board requested staff bring back a report on the Residential Buffer Ordinance, evaluate ideas as to whether or not the Ordinance could be changed, and how it might be changed if the Board chose to do so; and considerations are listed on the second page of the report, which include allowing the tract to have a dual use, putting a minimum size limitation on the subdivisions that would be required to provide the buffer tracts, allowing the 15-foot buffer to be part of the residential lot, only requiring the 15-foot buffer when it abuts other single-family residential uses, and not requiring the 15-foot buffer for subdivisions within a Planned Unit Development (PUD) or open space subdivision. He noted the Board has reviewed waivers on a case-by-case basis; and such option would still be available if the Board chose not to change the Ordinance.
Rick Kern stated the Ordinance is burdensome on small projects of five and ten acres in size; it would be wise for the Board to grant exemptions in the Ordinance for projects 15 acres in size and smaller; on a small project, the residential buffer can consume 20% of the entire project; on many tracts of vacant land, the existing vegetation around the perimeter of the site may be sparse or non-existent; and providing a 15-foot native vegetative buffer on projects provides for no real buffer. He noted it may be wise to give the developer an option of providing a six-foot high opaque visual barrier in lieu of a 15-foot land buffer; frequently on the perimeter of subdivisions, grading or drainage needs to be done; this type of use, in many cases, would be compatible with a buffer; and urged the Board to consider allowing multiple uses in the buffer as long as the buffer could still be maintained for its intended use.
Ralph Maccarone stated the Ordinance was adopted by the Board on December 4, 2001; it was adopted to serve as a barrier between subdivisions; the buffers serve to decrease noise and visually and aesthetically enhance areas; buffers can also serve as wildlife corridors; and Chairman Scarborough mentioned the 15-foot perimeter buffer could develop into a greater distance when there are incompatibility issues between the properties bordering one another. He noted part of the Board’s job is to protect people’s investments in their properties and homes; by altering the Ordinance, the Board will be doing a disservice to the property owners who the Ordinance was put into effect to protect; the report allows owners to request an opportunity to propose revisions to the Ordinance; and he would like to have that same and equal opportunity to make proposed revisions to the Ordinance to other parties that would be affected by changing the Ordinance.
Dick Thompson stated on July 23, 2002, the Board moved to address some of the changes to the Buffer Ordinance; he asked and was granted the opportunity to provide comments to staff as it prepared changes for the Board’s review; he reviewed the comments and found them to be complete and detailed; and he submitted his comments, along with a revised version of the Ordinance, which the Board has received. He noted although he has problems with the buffer concept, he has proposed eliminating the applicability of the Ordinance to subdivisions less than 15 acres is size; he has analyzed several tracts less than 15 acres and found them difficult, if not impossible, to develop without a significant loss in property values; he finds from an engineering standpoint, the smaller acreages are more difficult to design to satisfy other agencies involved; and one example is a subdivision adjacent to the project he has proposed called Hidden Hollow Subdivision. Mr. Thompson stated a number of the people from the subdivision have addressed their concerns; the tract is 13.85 acres; provided copies of the layout of the tract to the Board, but not the Clerk; and noted there is a dashed line showing the 15 feet that would represent the buffer required by the Ordinance. He noted the particular subdivision requires a 15-foot drainage and/or utility easement, making a total of 30 feet of the property that is not usable; and it would knock out nine of the lots making it a financially unfeasible project.
Motion by Commissioner O’Brien, seconded by Commissioner Higgs, to extend Mr. Thompson’s time for comment. Motion carried and ordered unanimously.
Mr. Thompson stated no waterfront homes could be built in Brevard County with the Ordinance; if a 15-foot barrier is put along the water’s edge of a subdivision, a house could not be put on there that anybody would want as there would not be room; so people with waterfront homes would be out of luck with the proposed changes; and a 15-foot undisturbed natural buffer creates a haven for ticks, mosquitoes, and other critters that become a hazard to humans and their pets. He noted the conduct of stormwater runoff, retention, and discharge frequently requires re-grading and disturbing of land adjacent to neighboring subdivisions and tracts to efficiently transport the stormwater runoff; restricted use of the property to be left in a natural state will result in unsightly and unkept yards, with disputed responsibility for care; in small subdivisions less than 15 acres in size, the values of lots are reduced by the Ordinance in limiting the useable yard space; and it restricts property owners from realizing a reasonable return on their investment in land values and taxes paid on vacant property. Mr. Thompson stated such restrictions can result in Section 70, Florida Statutes, of the Harris Act becoming actionable; he is sure it is something the Board does not want to get into; it requires the return of investments lost to property owners; and the property owner is entitled to obtain the highest and best use of his property. He requested the Board’s consideration of putting a 15-acre limit on the applicability of the Ordinance.
Carl Signorelli, Concerned Citizens for Property Rights, reminded the Commissioners of the Oath of Office they took when they became Commissioners for their Districts; stated the Commissioners are to represent the people, and uphold and defend the Constitution of the United States of America; during their terms in Office, the Commissioners have violated the Fifth Amendment and Bill of Rights; and he is addressing only 60% of the Board who voted for the violations. He noted when he addresses himself as being violated, he is speaking for the people who are affected by Ordinances that violate their freedoms; during the Commissioners’ terms in Office, they have taken away his freedom of choice; they tell him what to plant and what not to plant; he is fined $500 if he cuts down a 10-inch tree; and if he cuts down a four-inch tree on his property, he must apply for a permit. Mr. Signorelli stated if he wants to survey his property, he has to seek a permit; he cannot prune or cut down a limb on his tree unless he complies with the International Society of Agriculture’s Pruning Standards, or suffer a penalty; and inquired is this America. He noted the Board is considering violating the Fifth Amendment by confiscating 15 feet around residential property without compensating the property owner; and read a portion of the Fifth Amendment, as follows: “. . . nor shall private property be taken for public use without just compensation.” Mr. Signorelli stated the proposed changes to the Ordinance impose a hardship on the people; inquired what if the entire area is bare, like Viera; stated there is no vegetation around a perimeter; and inquired if the 15 feet is not to be disturbed, where does the rear retention go. He noted the Board is confiscating private land by inverse condemnation; if it approves the proposed changes to the Ordinance, it will be known to pay no regard for the Constitution and people’s rights; it will be a forerunner in promoting socialism in our great Republic; and its action will be tested in the Supreme Court and Harris Act. He stated since the perimeter will be recorded as a separate entity, if the courts finds the Ordinance in violation of the law, the County will have to compensate property owners and maintain the property acquired; in order to salvage the Ordinance, two words should be added to it, “commercial only”; and no one will suffer losses or hardships if the perimeter is around shopping centers, malls, medical centers, or hospitals. Mr. Signorelli noted this is not the time to violate the Constitution with the election only a few days away.
Bob Sisko stated his property directly abuts Mr. Thompson’s property; in 1999, when he was in the process of building his house, Mr. Thompson came to his property and was vocal about how he thought his land should be graded; Mr. Thompson had water concerns; and Mr. Thompson made it known that he was the developer of property located behind him and he was going to pay to drain his property into the Hidden Hollow retention pond across the street by tapping into the culvert. He noted the County inspectors thought Mr. Thompson’s idea was a bad one and gave their stamp of approval on his grading, which put a buffer around his property so his water would not go on Mr. Thompson’s land and vice versa; he has a berm around his property; Mr. Thompson has asked the surrounding property owners for permission to drain into their retention ponds, and in each case he has been denied; Mr. Thompson also asked Dr. Hank Bongers for six feet of frontage on his property so that the proposed subdivision would have ample ingress and egress; and Dr. Bongers denied Mr. Thompson’s request after he talked with the surrounding neighbors. Mr. Sisko stated Mr. Thompson is asking the Board to maximize his investment at the expense of the existing homeowners in the area; he is asking that the rules be changed so he can retire comfortably; Mr. Thompson is looking to put a lot of lots on a small piece of property; and with the buffer, he will not be able to put in any pools and is looking to put large homes in the area. He noted Mr. Thompson is asking the Board to let him put as many houses on the four acres as he can, with no regard for anyone; and requested the Board deny the request for waiver of the buffer for Staghorn Subdivision.
Chairman Scarborough stated Staghorn Subdivision is the next item on the agenda.
Commissioner Higgs stated municipalities and counties have established setbacks and other ordinances that define areas between houses and on the front and back of lots that are established; and those kinds of powers in municipalities and counties have long been established and legal within the structure.
County Attorney Scott Knox stated those kinds of powers are called “police powers”; they have existed with municipalities since the concept of municipalities was developed; the issue that Mr. Thompson raises about the Bert Harris Act is a different issue as it is something that is recent; and it says any rules the Board enacts, subsequent to enactment of Bert Harris Act, that tend to diminish the value of property and cause an inordinate burden to property, such property has to be compensated for. Commissioner Higgs noted in terms of compliance with the Constitution of the United States, the ability of municipalities and counties to establish buffers or setbacks have long been recognized and litigated. Attorney Knox stated there are police powers that are recognized as not constituting a taking; and those types of powers described have not been held to constitute a taking. Commissioner Higgs stated there is some value to consider other uses, dual uses, and how that might work; the County has had the Ordinance in place a short period of time; it has dealt with a couple of items as waivers; and the concept of changing the Ordinance at this point is not something she wants to do. She noted she is willing to look at instances on particular subdivisions where the County may have caused problems and where it may be able to consider waivers that achieve the purpose it set out to do, but not make property unusable; she is not in favor of making any change to the Ordinance at this point; she is interested in continuing to work with it and may be interested at a later date in making an amendment; and she is willing to look at the cases individually for a little bit longer and see if there might be something the Board needs to do, but does not see that at this point.
Commissioner O’Brien congratulated staff for doing a great job; stated he would like to look at giving a dual use to include drainage; it is possible to have trails or pedways through it; and part of the Greenways Program is to try to facilitate that. He noted the Board should consider putting a minimum size limitation on the subdivision; the 15-acre size was brought up many times; multi-family areas, townhouses, apartments, and condominiums, are not required to have a buffer from adjacent single-family areas; a buffer may need to be required in that case; and the County is trying to require it between single-family homes in subdivisions, which does not seem fair. Commissioner O’Brien stated a buffer should be between higher density versus lower density; compatibility brought the issue up in the first place; the Board could consider changing the Ordinance by including specific instances in which the buffer should be provided; and it is the route the Board should travel. He noted the 15-foot buffer should be able to be used as a dual purpose due to the wide variety of landscape in Brevard County; the 15 feet could remain in its natural state and allowed to be used to transport water drainage to a drainage pond; it is a secondary use and a good one; and the Ordinance requires that the buffer be provided on all sides; but the County should not stay with that. Commissioner O’Brien stated it may not always be necessary, depending on the nature of abutting property; in some instances, a parcel may abut a large utility, railroad, water body, conservation easement, golf course, or recreational area; the Board has not addressed it and needs to do so; if the Ordinance is going to be kept intact, the private property ownership of the buffer can and should be attained; and it should not be turned over to a homeowners association, unless in a PUD they are planning it for use as a walking trail or some other use that has a common purpose. He noted a lot of people want to maintain the natural buffer; the owner could be the owner of the easement; and he would like to address the dual purpose, open space subdivisions, PUD’s, multi-family areas, which do not require a buffer, and minimum size limitation of a subdivision. Commissioner O’Brien stated Mr. Thompson pointed out his property would be severely impacted; there is a 15-foot setback on the rear property for an easement, which could be left in its natural state and serve two purposes—drainage and a buffer; the County could achieve what it desires; and if there is a subdivision that is not compatible, there might be the same reasoning or something different; but he is not sure how to contemplate that. He noted there should be a minimize size; 15 or 20 acres may be right; and the buffer should serve a dual purpose.
Commissioner Carlson stated she agrees with Commissioner O’Brien on several points; the Ordinance has not been in place for long, so there is not a huge amount of data to draw from in terms of the negative or positive affects of it; and she is not sure she would consider allowing an ordinance to continue that may end up creating negative affects, but would like to explore the dual use and integration with significant environmental areas and use the initiative in concert with the 15-foot buffer. She noted if there is a drainage issue, it would be taken into consideration; if the drainage issue is going to be significant and the 15-foot buffer is going to be a problem, perhaps the buffer could be put into the plan some other way; and there needs to be more flexibility. Commissioner Carlson stated the whole issue came up due to compatibility issues; it needs to be equitable across all subdivisions; the Board needs to review mixed use, multi-family, and commercial; and it needs to be equitable across-the-board and not based solely on subdivisions. She noted item 5 talks about PUD’s and open space subdivisions; the 15-foot buffer should be used in concert, making sure it is available to use as a tool if there is an issue; the County can work on it; having a straight 15-foot buffer may not be the answer; but the buffer can be used to the County’s advantage to make sure compatibility is utmost in its mind and protects existing property owners. She stated when the Board was determining the issues in St. Andrews Isles, Suntree, and Sawgrass, the Ordinance was brought forward; and the Board needs to hone it into a useable ordinance that is equitable across all zoning categories and not only pick on subdivisions.
Chairman Scarborough stated this is only a report and not changing the Ordinance; and inquired under what provisions is the Board considering waivers.
Permitting and Enforcement Director Ed Washburn stated the Land Development Engineer could approve waivers, but such waivers are brought to the Board. Chairman Scarborough inquired if there is a strict 15-foot buffer on all four sides, can Sections of the Ordinance be waived at staff level. Mr. Washburn responded the Land Development Engineer can waive certain Sections of the Land Development Regulations; but he would not allow the Engineer to waive that certain Section. Chairman Scarborough inquired does the Board have waiver of Ordinance requirements. County Attorney Scott Knox responded there are certain provisions that allow waivers under certain criteria if the criteria is met. Chairman Scarborough inquired has the Board set forth criteria. Attorney Knox responded there are certain provisions that set forth criteria; this particular Ordinance also sets forth criteria, which includes the Harris Act; but there are other provisions that are not in this Ordinance. Chairman Scarborough stated the Harris Act reference is in the revised ordinance and not the Ordinance the County is utilizing.
Assistant County Manager Peggy Busacca stated in the Subdivision Regulations, there is a general provision that says any portion of such Regulations can be considered for a waiver; there are conditions set out for specific waivers, such as parking, when additional pervious pavement is provided; such waivers are done by staff; but the other waivers are brought to the Board.
Chairman Scarborough stated he may want to more clearly delineate where waivers could be handled at staff level; the County could continue waivers at the Board level for the unique cases; but there could be more flexibility at the staff level.
Commissioner O’Brien stated the Board wanted a solution for non-compatible subdivisions; it is now encompassing compatible subdivisions and other areas as well; and staff needs to address the need for multi-family. He inquired if two subdivisions are compatible, do they meet the criteria; therefore, the buffer is not the intent. Chairman Scarborough responded the Board is saying here that is compatible and there is no need for the buffer.
Attorney Knox stated Section 62-2849 reads, “The County Manager can provide a waiver based upon a hardship or unreasonable practical difficulty”; if it is determined by virtue of intensity and location that there is more significant issues, the waiver is brought to the Board; there are seven criteria that have to be considered for whether or not to grant the waiver; and advised of such criteria. Chairman Scarborough inquired has the County applied that criteria; with Attorney Knox responding affirmatively.
Commissioner Higgs stated the buffer does more than deal with compatibility; it helps the value of a subdivision by enhancing the overall aesthetics and having vegetation there; the buffer is one part of it; and the aesthetics of what is being developed in the County is another part of it. She noted the aesthetics clearly add value to what is being built, rather than acres and acres of homes on top of homes on cookie-cutter lots; that is not what the Board wants to see occur in the development of Brevard County; in looking at subdivisions that requested waivers, the County has seen that they have complied with a buffer, maybe not in the 15-foot tract the Board would have envisioned, but in other ways; nothing could have been better than some of the things the Board saw the last time where there were huge wetland areas that were being preserved; and it was part of compliance with the Ordinance. Commissioner Higgs stated she agrees that how the County does waivers is of concern; she would like to see the Board work with the Ordinance longer and grapple with it at this level so that when it amends it, it will know what it needs to do in the Ordinance; the County has been successful in having staff work with applicants and bringing the Board plans that brought compliance in a different way than it envisioned; she is willing to do this further and amend the Code so the County is not planning subdivisions at this level; and she would like to have the hands-on experience to look at the rules being applied.
Commissioner Carlson stated she does not have any problem looking at the waivers and extending the amount of time since the County has only had it on the books since December, 2001. She noted every time anyone has had an exception, they brought it to the Board and it tried to be amenable and flexible; she does not have any problem with that; the Board should review the waivers; and there may be something like the Open Space Subdivision Ordinance that the County should not be applying the buffer to and applying it for compatibility with multi-family, commercial, and industrial usages. She inquired is there anything in the Code that says a commercial entity next to a residential community has to have a specific buffer; with Ms. Busacca responding affirmatively. Commissioner Carlson inquired is it something that staff can approve; with Ms. Busacca responding yes. Commissioner Carlson stated the County needs to move on, examine the waivers, and keep a close eye on the impact of the 15-foot buffer, and if it is being applied equitably.
Chairman Scarborough stated one advantage in codifying where the County is going to provide waivers is eliminating time from staff, time in Board meetings, and applicants paying consultants; the County does not want to make the expense of going through the system if it knows which waivers will be granted; and the discussions need to continue so the Board’s education can increase; and when it does enact something, it can be done wisely.
Commissioner O’Brien stated the County keeps making the public jump through hoops by making citizens appear before the Board; suggested staff come back with suggestions as to what empowerment the Board may want to give it to use common sense and knowledge of what the problems are; and staff could bring a report back to the Board with suggestions. He noted a buffer adding value to a home should be the developer’s decision; if a subdivision is zoned the same as the one next to it, then they are compatible; the Ordinance should not be so strict; and suggested staff come back to the Board with dual use of the buffer. He stated the County has a Landscaping Ordinance that applies to new construction of single-family homes; it can be addressed as well; and if the buffer has to be disturbed, the rule could be to revegetate the buffer in such a manner that it will grow into being natural again.
Motion by Commissioner O’Brien, seconded by Commissioner Carlson, to direct staff to report back to the Board on suggestions as to what empowerment it could give staff, dual use of buffers and buffer issues, the waiver process, the Landscaping Ordinance that applies to new construction of single-family homes, etc., and compatibility issues.
Chairman Scarborough stated the Board would like additional input from staff
on all the comments that have been made; there have been comments on the waiver
process; he would like to have those addressed as well; and requested staff
take all the Board’s comments into consideration with further reports.
Mr. Washburn stated he requested the Land Development Regulations Review Committee to look into the waiver process and make its recommendations in the report to the Board on how the waivers should be handled, not just in the Subdivision Regulations, but in the Site Plan and Sign Ordinances as well.
Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.
WAIVER OF PERIMETER BUFFER, RE: STAGHORN SUBDIVISION
Rick Kern stated Dick Thompson is seeking a waiver of the 15-foot buffer to his project; it is a 4.5-acre project, which Mr. Thompson has owned for about 15 years and wants to develop it into eight single-family lots; the lots are fully compatible with the neighbors to the north, south, and west of the project; and the project is extremely narrow and is 180 feet wide by about 900 feet long. He noted it is impossible to develop the project while applying the 15-foot buffer to all sides of it; the project will be canceled if a waiver is not granted; one of the problems with application of the Ordinance is that it blocks access to the property due to narrowness of the project; and if the buffer is imposed on the project, it is critical to have dual use of the buffer for drainage purposes. He stated the Hidden Hollow project to the north was approved by the County many years ago; the construction plans clearly called for a drainage swale to be built on the project, but the swale was never built; the project is illegally dumping drainage on Mr. Thompson’s property; and Mr. Thompson should at least have dual usage of the 15-foot buffer to convey Hidden Hollow’s drainage back to its pond.
Chairman Scarborough inquired what are the lot sizes; with Mr. Kern responding the proposed lots are about 15,000 square feet and 110 feet wide. Mr. Kern advised the Hidden Hollow lots are slightly smaller than that; and the width is about 100 feet. Chairman Scarborough inquired about home size; with Mr. Kern responding he does not have data on it. Chairman Scarborough inquired is the zoning the same; with Mr. Kern responding yes.
Commissioner Higgs inquired how far is the road from the south property line. Mr. Kern responded there are two portions to it; the road right-of-way is 40 feet and would be adjacent to the south property line; and the back curb is eight feet off the south property line. Commissioner Higgs inquired how wide will the road be; with Mr. Kern responding it is 20 feet wide on the asphalt and is a curb and gutter road. Commissioner Higgs inquired is it the minimum for a private road; with Mr. Kern responding affirmatively. Commissioner Higgs inquired could the depth of the lots be some other depth that could allow the road to move more into the property so there could be some buffer. Mr. Kern stated Mr. Thompson could create a slight buffer on the south side; the lots currently are 140 feet deep on the short lots; there is a proposed 30-foot drainage easement on the rear of the lots; and they may be able to squeeze in at least a five-foot buffer on the south side without a great deal of problem. Commissioner Higgs inquired would it be on top of the eight feet Mr. Kern mentioned; with Mr. Kern responding affirmatively. Commissioner Higgs noted Mr. Thompson could have 13 feet. Mr. Kern stated the eight-foot portion is within the private road right-of-way. Commissioner Higgs inquired why Mr. Thompson could not provide a buffer on the east and west sides; and stated she understands the issue with the drainage, but she does not understand the issue on the east and west. Mr. Kern responded on the east and west, it is not nearly as big a problem; and the concern is mostly on the north and south. Commissioner Higgs stated Mr. Thompson could come within two feet on the property line on one side; and if there was dual use, he could comply easily on the other side. Mr. Kern stated on the north side currently the 30-foot drainage easement proposed is for the onsite drainage system; it is necessary for Mr. Thompson to convey the runoff from Hidden Hollow to the west along the property line; he could provide a five-foot buffer/drainage easement for that facility; and since Hidden Hollow has failed to install its drainage system on the rear of its lots, the County is making Mr. Thompson do it for Hidden Hollow. Mr. Kern stated Mr. Thompson could do a five-foot drainage easement and buffer on the north side.
Commissioner Carlson stated there is a retention pond of 15,000 square feet for an eight-unit development; and inquired what is the retention required for eight units. Mr. Kern responded the retention is what is shown; Tract A is 15,000 square feet; there is also a 30-foot drainage easement on the rear of six lots; the drainage easement is part of the stormwater pond system; and Mr. Thompson is providing about 30,000 square feet. Commissioner Carlson inquired what kind of system is it; with Mr. Thompson responding on the rear lots there is a dry swale, and Tract A is a wet pond. Commissioner Carlson inquired is the 30 feet part of the specific parcels. Mr. Kern stated the 30-foot drainage easement is part of the lots; and the stormwater system is inside the 30-foot area. Commissioner Higgs inquired does Mr. Thompson have to take out every bush, tree, and shrub in order to move the water to the drainage system; with Mr. Kern responding yes, for the onsite drainage system. Mr. Kern stated Mr. Thompson can replant a strong hedge or a tree buffer on the back side of the berm; he would like to bring the entire drainage system south into the lots at least another five feet; and it will provide extra room to convey the Hidden Hollow drainage and additional buffer as well. Commissioner Carlson inquired is Mr. Thompson taking on the drainage from Hidden Hollow. Mr. Washburn responded he does not know if that is the case; he was at the property when Mr. Thompson suggested connecting to the retention pond for Hidden Hollow, but the County said no; Hidden Hollow was required to put the berms at the back side of the lots; and over time, some of the berms eroded. Commissioner Carlson inquired is there a berm along the backside. Mr. Washburn responded one gentleman who spoke had to put in a berm there; he is assuming the other homes had to do the same; and he does not know if physical drainage swale of some configuration was required on the back side of the lots. Commissioner Carlson inquired is the County talking about taking drainage off of Hidden Hollow; with Mr. Washburn responding that is what Messrs. Kern and Thompson have indicated, but he does not know that to be true. Commissioner Carlson stated looking at a 30-foot drainage easement is one thing and trying to take drainage off an adjoining property is another thing; if there is not any real science that says it is required, she has a hard time thinking there is a variance or something the Board could give for the 15-foot buffer if it does not know if it is necessary; and a 15,000 square-foot retention pond is large for an eight-tract subdivision. Mr. Washburn stated the land drops off significantly from the houses that are on Hidden Hollow to the rear; he is assuming Mr. Thompson’s tract of land is low and that is why he needs a significant amount of retention area; and a 30-foot drainage easement is for his property as well. Commissioner Carlson inquired is there any wetlands on the property. Mr. Kern responded there are surface waters and Mr. Thompson has been permitted by St. Johns River Water Management District. Commissioner Carlson inquired what is the District’s mitigation; with Mr. Kern responding none.
John Miller advised of his opposition to giving Mr. Thompson buffer removal; stated when Mr. Thompson purchased the property, he knew the buffer was there; he has room for four houses; and he wants to put in eight lots. He stated Mr. Thompson knew the land requirements when he bought the property and should have to abide by them; and inquired can he build a subdivision, called Staghorn Subdivision, inside a subdivision that is called South Merritt Estates. He noted it is not right; when it rains, the residents get the drainage; during the rains earlier this year he had four inches of water on his front lawn; and it almost killed all of the grass before it drained into the retention pond. He stated Mr. Thompson is not putting a road through to go onto Tropical Trail; he knew what the land was when he purchased it and knew the problems he was going to have; and inquired is he going to be back before the Board for the other problems on the various properties he owns.
Robert Sisko stated his property abuts Staghorn Subdivision on the north side; and requested the Board deny the request of Mr. Thompson for the waiver of the 15-foot perimeter buffer. He noted he spoke with Janice Unger of St. Johns River Water Management District; the District sent an engineer to the area to investigate; on September 13, 1995, Ralph Brown investigated the feasibility of constructing back lot swales to the Hidden Hollow properties that abut the proposed Staghorn Subdivision; and Mr. Brown observed that the pond water elevation of Hidden Hollow was higher than the ground elevation where the swale was to be constructed. He stated the water level and topographic elevations would not allow stormwater to be conveyed by a back lot swale; and requiring the Association of Hidden Hollow to construct the back lot swale as specified on the permitted plans was determined not to be a feasible approach. Mr. Sisko noted Mr. Thompson’s property is bordered by 13 lots; many of the back lots were never fully cleared and graded, and native vegetation remains; most of the houses direct their roof runoff to the front of the lots; and given the conditions, Mr. Brown concluded that the water quality of the runoff that finds its way to Mr. Thompson’s property would not be a concern. He stated even though the stormwater system is not constructed in accordance with the permitted plans, a violation of State water quality standards appears unlikely, given the condition of the 13 lots; since no harm to the resource is apparent in this matter, Mr. Brown determined that further compliance by the Homeowners Association should not be pursued; he has a copy of the memo, as well as the letter from the District to Mr. Thompson confirming this information; and urged the Board to deny the waiver of the buffer.
Commissioner O’Brien stated the Board does not have all the information it needs, especially concerning water flow or other engineering aspects that come into question; and requested additional information before moving forward.
Gene Canada stated his property abuts Staghorn Subdivision; and requested the Board deny waiver of the buffer zone requested by Mr. Thompson. He noted his lot is the only lot that abuts the property that has no drainage easement or anything behind it; having the 15-foot buffer would be the only buffer that is between his property and the other property; the drainage has always been a problem; and waiving the buffer in this particular case would be taking a step backward.
John Wilhelm stated he supports the 15-foot buffer zone in all instances, especially in a small development where it is more important; Mr. Thompson indicated the buffer would harm him financially; however, the requirement was not enacted to be a detriment to land owners, but a way to protect property values and overall quality of life in the community; and what Mr. Thompson chooses to ignore is there is no inherent right of a property owner to maximize his potential earnings from a piece of property. He noted Mr. Thompson purchased the property of approximately four acres in size; it was previously the backyard of a six-acre homesite; Mr. Thompson now wishes to turn the backyard into a subdivision; and he wants a waiver from the buffer rule. He stated Mr. Thompson wishes to utilize the ingress and egress parcel off of Carambola Drive; such ingress and egress only peripherally borders Carambola Drive; he assumes Mr. Thompson will expect the County to pick up the tab for enabling access, including obtaining rights-of-way over other private property on Carambola Drive, the road work, water lines, and federal permits that will be required; and he has attempted to portray at previous hearings that he might be part of South Merritt Estates Lakes Subdivision, which he is not. Mr. Wilhelm noted Mr. Thompson wishes to put in a subdivision within another subdivision; South Merritt Estates Lakes Subdivision requires a one-acre minimum lot size; he has no reason to want to stop Mr. Thompson from building a home or two homes on this small piece of property; but to put eight homes without any regard to sewage, water quality, and runoff is absurd; and he cannot fathom why Mr. Thompson would object to the setbacks since most of the land in question is under water the entire year. He stated under the regulations of the District, one can neither raise or lower the water in an existing natural pond, which exists in his backyard; Mr. Thompson expects the residents to take his runoff and deal with it; the residents will not deal with it; Mr. Kern indicated the properties are compatible; but in South Merritt Estates Lakes Subdivision, all properties are a minimum of one acre and the houses are not compatible with the proposed development. He requested the Board retain the 15-foot buffer zone.
Dick Thompson stated the project he has proposed is a sound one and an infill of existing homesites similar to what is adjacent to his property; his lots are the same size or may be even larger than the adjacent lots; he has designed the project to be a functional subdivision, with Mr. Kern’s assistance; and the project is a winner, which will add to the quality of life on Merritt Island. He noted the homes proposed to go on the site will range between $200,000 and $300,000; it will not be a detriment to what is there now; the Board is concerned about urban sprawl; the project is an infill one that does not result in urban sprawl; and requested the Board grant the waiver.
Commissioner Carlson stated St. Johns River Water Management District looked at Mr. Thompson’s property and gave him a permit to develop; there was no mitigation for wetlands; and inquired what stormwater retention is required. Mr. Thompson responded there was a requirement; and a design was submitted to the District for the job. Commissioner Carlson noted Mr. Kern indicated 15,000 square feet was not the actual number; and inquired is that true. Mr. Kern responded the tract is 15,000 square feet and there is an extra 15,000 square feet in the drainage easement, so the combined area is about 30,000 square feet. Mr. Thompson stated the District came to his property, at his request, and reviewed the drainage from Hidden Hollow Subdivision on his property; he had a survey and topo done to prove that the water would flow in the direction he said it would to get into the drainage system; the lots in the Subdivision had been elevated with fill material brought in; and it was draining the rear of the lots on his property. He noted there is a two-foot fall from one end to the other of Hidden Hollow Subdivision; and it is plenty to carry the water off.
Commissioner O’Brien stated there are many questions about stormwater, quantity, and storage of it; when the project was permitted, the stormwater rule only addressed water quality and not flooding; the back lot swale depicted on permitted plans was not constructed; and expressed concern about it. He noted it is why Mr. Thompson is complaining about the water coming onto his properties; he is looking for relief by using the 30 feet for water retention; most of the water is not coming from his property; and Mr. Thompson intends to send his water through South Merritt Estates.
Motion by Commissioner O’Brien, seconded by Commissioner Higgs, to table the request by Dick Thompson for waiver of the 15-foot perimeter buffer for Staghorn Subdivision; and direct staff to work with the residents of Hidden Hollow and South Merritt Estates, and Mr. Thompson and come back with suggestions and information that answers the concerns about stormwater quality, drainage, lack of buffer on the Carambola Drive side, South Merritt Estates side, and others, and some type of relief to be fair to all parties involved. Motion carried and ordered unanimously.
The Board recessed at 1:13 p.m. and reconvened at 2:00 p.m.
ACKNOWLEDGE RECEIPT, RE: REPORT ON DUTIES OF DEPENDENT SPECIAL
DISTRICTS (PORT ST. JOHN AND NORTH MERRITT ISLAND)
Aneta Ott stated she serves on the North Merritt Island Dependent Special District Board; when it met this week there was overwhelming response that such Board should be kept as it is; due to some confusion, the election process was vague in some minds; and it was also vague with County staff. She noted it was not because of lack of interest that there was not a quorum; it was because most people did not know; once the Homeowners Association published that people were needed, four individuals came forth right away; and such names were sent to the Board to fill the three slots. She stated the vacancies happened because the individuals moved from Merritt Island; the Advisory Board is a good way for the people on North Merritt Island to keep it unique; although the appointees do not have the final say on decisions that are made for North Merritt Island, they still have a say; and they appreciate being able to do that. Ms. Ott noted the Advisory Board also mentioned any other duties the Board would like to give it besides zoning, it would be glad to take on; and expressed appreciation to the Board for its support.
Darleen Hunt stated the reason for the Advisory Board is because the residents on North Merritt Island did not believe the Countywide Board was serving the needs of that area; the residents asked Commissioner O’Brien if he would support a special district for zoning; he did not favor it at first; but after about one year, he indicated he would support the idea if the voters approved it on a straw ballot. She noted on November, 1998, 75% of the registered voters on North Merritt Island approved creation of the Special District; when it was time for an election, seven people qualified and were unopposed; there was a full Advisory Board; and such Board was to serve four-year terms. She stated the Advisory Board functioned well until one member moved away; then other members moved away about one year later; there was a provision in the Ordinance to replace people by being appointed by the Advisory Board and the Board; but it was not happening. Ms. Hunt noted in the election process this year it became unclear about how many seats were to be filled; six seats were supposed to be filled; she tried to understand it so she could write it for the monthly newsletter; and when she contacted the Supervisor of Elections’ and Zoning Offices, the information was unclear. She stated the people who were coming forward as volunteers were not receiving clear information; and suggested a one-page document that clearly explains to people, including County staff, what should happen when there is a vacancy and what the process should be.
She noted there was an issue about whether there was a quorum a couple of times for the Advisory Board; because there were fewer than seven members filling such Board, she thought the quorum should be adjusted accordingly; she does not know how Roberts Rules go with that; and inquired if there are vacant seats, are they still counted in a quorum. Ms. Hunt stated there were three people and only five members on the Advisory Board, so she believes it would be a quorum; there was another issue discussed about added cost of the Advisory Board process; it was not new and known to everyone when the Ordinance was created; and the only part that is free are the Advisory Board members who serve.
Richard Mickle, President of The Civic League of Port St. John, stated when he received paperwork from the County about staff recommendations, he talked to individuals in the Civic League; and requested the Board try to keep seven members on the Port St. John Dependent Special District Board and keep it an elected Board.
Maureen Rupe, Port St. John, stated before establishment of the Port St. John Dependent Special District Board, the amount of time that was spent at the Planning and Zoning (P&Z) and County Commission meetings fighting developers encroaching into residential was frequent; the P&Z Board did not seem aware of the impacts when it made recommendations on Port St. John; she and Mary Tees came before the Board and asked for the Port St. John Dependent Special District Board; and the changes in procedures the State mandated to go through the election process for volunteer boards seriously hampered people coming forward. She noted there may be more enthusiasm if the Special District Board was appointed; alternates could be appointed for additional backup; Port St. John has not had a lot of success in the election as there were three seats and only one person ran; and she would rather see the appointments than revert back to the P&Z Board, with the community being in the same frustrating position it was in 1996. Ms. Rupe requested the Board keep the status quo.
Chairman Scarborough stated at this time it would not be wise for the Board to proceed until after the Port St. John issue has been resolved; if Port St. John is incorporated, this item becomes a non-issue; if Port St. John remains in the unincorporated area, there may be a great deal of discussion in the community of what role it plays; and it would be appropriate not to take action today.
Commissioner O’Brien stated he is happy to wait until after the decision by Port St. John; he would like the Board to start discussing the points for Board consideration by staff; it should allow dependent special districts to exist as they are important; and the recommendations should supplement the P&Z Board and Local Planning Agency (LPA) recommendations. He noted the election process has not worked well; he agrees that perhaps the District Boards should be by appointment; alternates should also be appointed by the Commissioner of the District; and it will relieve the local elections and lack of interest by someone who wants to run for office. He stated the Board should consider making appointments with alternates and the recommendations coming forward by the local districts go to the P&Z Board and LPA as well; and it gives a better flow through the process before it comes to the Board.
Chairman Scarborough stated sending the recommendations to the Special Districts, P&Z Board, and LPA is going to require additional time of staff and volunteer people; and he is not in favor of any more scheduling problems or delays.
Commissioner Carlson stated both groups have shown an interest in keeping the election process, which she does not have a problem with; each Special District wants a seven-member Board, but there are problems getting enough people to run for the elections; and perhaps the Board could set a policy when there are openings that an election has not filled, the Commissioner could propose appointments to the seats. She noted there have been quorum problems; if there is not a quorum, it has to be bypassed and the item go to the P&Z Board; and inquired do issues get held up to the P&Z Board if they do not go through the Special District Boards and does an applicant get held up if there is not a quorum. Planning and Zoning Director Mel Scott responded the applicant is held up if there is not a quorum. Commissioner Carlson stated it is not fair; and the item should go to the P&Z Board.
Ms. Ott stated the problem only happened in one month out of four years; it is not a bad record; no one has a perfect record; other than that, there has been a quorum; and requested the Board keep that in mind. She noted the people on North Merritt Island are concerned about their area; and the more the Special District becomes known and what its job is, there will be more people running. Commissioner O’Brien inquired would it be easier if the voting members were reduced to five; with Ms. Ott responding no.
Commissioner Higgs stated the Board defines quorum based on what it puts in the Ordinance; and if the Dependent Special Districts want to advise on that issue, the Board could consider amending the Ordinance in the future.
Chairman Scarborough instructed staff to work with the District Boards on getting a quorum and return to the Board with recommendations.
DISCUSSION, RE: CONCURRENCY MANAGEMENT AND TRANSPORTATION PLANNING
Planning and Zoning Director Mel Scott stated staff has identified if a roadway drops in its volume in a given year, that the Ordinance does not allow for a study to be conducted, either by the applicant or staff, to determine why the roadways volume dropped; the County has ample opportunities to reanalyze a roadway that has eclipsed 100% capacity, but not in this unique circumstance; and requested the Board support staff’s recommendation to amend the Ordinance.
Commissioner O’Brien stated he likes using a three-year average; and inquired if the County is knowledgeable of certain subdivisions that will come on line within a given span of time, should the numbers be put into the final count. He noted Courtenay Parkway is a good example where there is going to be a new subdivision along S.R. 528 and S.R. 3; S.R. 3 will be used as the main thoroughfare; there are more subdivisions in South Merritt Island coming in all the time; and they also use South Courtenay Parkway. He stated the County needs to think forward, not just what the numbers are today, but what they are going to be in the future. Mr. Scott stated with the specific example, the numbers are incorporated into the roadway segment; the applicants came forward and vested their subdivisions; and the County put the trips into the roadway.
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to direct staff to reevaluate a roadway’s segment if traffic counts decrease. Motion carried and ordered unanimously.
Commissioner O’Brien inquired if the County reevaluates the roadways at
this point in time, has it given the evaluation it requires to look at it realistically
again across a five-year period; and noted a good example is the September 11th,
2001 event. Mr. Scott stated the concern was that if the County did a three-year
average in those circumstances, it may artificially pull a roadway segment down;
it is such a unique circumstance and one that has great implications; with the
North Courtenay example, a mantic number in concurrency is 85%; and when a roadway
reaches 85% capacity, customers choosing to tap into the remaining capacity
can no longer vest trips. He noted there is a certainty that is lost by the
private sector.
Motion by Commissioner O’Brien, to reconsider the motion. Motion died for lack of a second.
RESOLUTION, RE: AUTHORIZING ISSUANCE OF SOLID WASTE MANAGEMENT
SYSTEM REVENUE BONDS, SERIES 1993
Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution supplementing Resolution No. 97-281 of the Board of County Commissioners of Brevard County, Florida, adopted on November 25, 1997; providing for and authorizing the issuance of its not exceeding $12,500,000 Solid Waste Management System Revenue Refunding Bonds, Series 2002, to refund the issuer’s outstanding Solid Waste Management System Revenue Bonds, Series 1993; providing for the payment of the 2002 bonds from the pledged revenues of the issuer’s Solid Waste Management System; authorizing the County Manager to award the sale of such bonds based on bids submitted at public sale and approving the conditions and criteria of such sale; specifying or establishing the criteria for determining the date, interest rates, interest payment dates, provisions for redemption, series designation and maturity schedule of such bonds and establishing a reserve requirement therefor; authorizing the County Manager to negotiate and accept the commitment of Financial Security Assurance, Inc., the credit facility issuer, for a municipal bond insurance policy; approving the form of a preliminary official statement with respect to such bonds, authorizing the delivery thereof, and authorizing the Chairman to deem it final for purposes of Sec Rule 15C2-12 and to execute a final official statement with respect thereto; approving the form of and authorizing the modification and execution of an escrow deposit agreement and designating an escrow agent thereunder; designating the bond registrar, paying agent and authenticating agent for said bonds; providing for the transfer of certain moneys held in funds and accounts for the refunded bonds; providing covenants to comply with applicable tax and arbitrage rebate requirements; providing certain covenants for the benefit of the credit facility issuer as an inducement for it to issue its municipal bond insurance policy with respect to the bonds; authorizing an undertaking to provide continuing disclosure with respect to the 2002 bonds; and providing an effective date.
Chairman Scarborough stated there is an estimated present value savings of over $400,000 on this particular transaction.
Commissioner O’Brien inquired how is the money going to be spent. Assistant County Manager Stockton Whitten responded the savings will be reserved for operating expenditures or capital projects. Assistant County Manager Stephen Peffer stated it will be for future capital projects. Commissioner O’Brien inquired is there any specific capital project. Mr. Peffer responded there is a five-year capital plan; and the funds will be available for those purposes. Commissioner O’Brien inquired are the monies available for land purchases or for construction of a compacting building, cars, and trucks, etc. Mr. Peffer responded he would project that the funds would be for larger capital projects, which could include improvements to the Solid Waste System, land purchases, buildings, new facilities in South County, and anything in the Five-year Capital Plan. Commissioner O’Brien inquired is it reflected in the Solid Waste budget; with Mr. Peffer responding the budget would be modified to show the savings.
Economic and Financial Program Director Greg Lugar stated the issue was in the works after the budget process; the term is not extended; it is a savings of the refunding; the rates are significantly lower; and the County will see approximately $600,000 in savings if it can hit the markets at the right time. Commissioner O’Brien inquired will it be approximately $40,000 a year; with Mr. Whitten responding it is projected a little over $70,000 a year and the Board will see a budget amendment reflecting the bond refinancing. Commissioner O’Brien inquired if $70,000 is saved per year, will the County see a reduction in tipping fees or anything else to compensate for this windfall. Mr. Lugar responded the Solid Waste Management Department has not had a chance to review it; staff has been in the process of trying to get the documents and package to the markets; and it is trying to hustle and get out there.
County Manager Tom Jenkins stated staff will provide the Board with a report on the allocations.
Commissioner Higgs stated the County has to do new permitting at the landfill and there may be new requirements in regard to the gas collection system. Mr. Jenkins stated it is an approximately $3 million expenditure; and reiterated staff will provide a report to the Board.
Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.
REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: PROPERTY SOUTH OF S.R. 50
Richard Stadler, representing Robert Kirk, stated Mr. Kirk is caught in a Catch 22 or paradox with respect to a Code violation, which resulted in a fine against him; there is a home with a long driveway located on the property; the roadway has grown up with trees; and Mr. Kirk decided it would be a good idea to clean out the roadway. He noted Mr. Kirk hired a nursery to take the trees and harvest them; the nursery paid Mr. Kirk $50 a tree and he received about $750 total; the trees were not cut down and destroyed, but relocated to another site; and Mr. Kirk received a visit from a Code Enforcement officer, who cited him for violation for failure to get a permit. Mr. Stadler stated at the hearing, Mr. Kirk admitted he did not have a permit; it became apparent at the hearing that not only did Mr. Kirk not have a permit, but he cannot get a permit to clean his driveway; the County has a provision in its Ordinance that allows for an exemption for a single-family home, but it is for less than one acre; and the property is over one acre. He noted if someone has over one acre, the only time he can get a land clearing permit is for survey and clearing where an active develop order is being sought; it has to be in conjunction with a building permit or application; there is no permit to clean one’s existing driveway; and the Code Enforcement officer enforced the fine of $500 per tree and has assessed Mr. Kirk $12,500 in fines for clearing his driveway. Mr. Stadler stated what is of interest here is that the purpose behind the Land Clearing Ordinance is to prevent trees from being removed and to provide a penalty for trees being destroyed; in this case the trees are not being destroyed, but relocated for a nursery; no net trees were lost; and the $12,500 fine is unreasonable. He noted there is an appeal pending; the purpose of the hearing today is to try to reach a resolution instead of wasting time with the appeal issue; there is also an interesting provision in the County Code, which will be part of the appeal, that reads, “One of the exemptions to the permitting requirement is the harvesting of trees for a bona fide agricultural use”; so it would appear that one can do this and sell trees on the property to a nursery; but the County did not feel that applied to this particular case. Mr. Stadler suggested as an alternative and a way to resolve the issue is a fine that approximates what Mr. Kirk received in profit from the venture, which was about $750; stated Mr. Kirk believes the nursery took more trees than they told him they took; and $12,500 is a high fine for clearing his driveway. He noted he believes the case could be resolved; and if the Board could agree to reduce the fine, Mr. Kirk will dismiss the appeal.
Nanette Church, Office of Natural Resources Management, stated this particular property is zoned GU and RR-1; in order for it to be an agricultural zoned piece of property, it has to be at least five acres in size zoned GU; there is no legal easement on the property that Mr. Kirk is classifying as a driveway; and it is an area being used to access the property. She noted there are horses on the south end of the property; the violation is removal of 25 trees; and it is $500 per tree that is at least 10 inches in size.
Chairman Scarborough stated if there was a driveway, someone does not have to get something to keep the driveway clear; and if there was a designated roadway, one could keep it clear. He noted the fine was $12,500 and has been reduced to $7,500. Ms. Church stated the $7,500 is the recommendation by the Special Master; and Office of Natural Resources Management would request that the fine stay at $12,500.
Commissioner O’Brien stated in the recommendations, Mr. Stadler stated this is not a permitting issue as Mr. Kirk could not get a permit to clear the trees; and inquired why Mr. Kirk could not get a permit. Ms. Church responded Mr. Kirk has to have an active development order to apply for a land clearing permit; instead of clearing the trees, Mr. Kirk’s intent was to get some value back for the trees, which is why he had the nursery remove the trees for him; there were many trees on the property that were not in the area of the driveway; and they were well off the path Mr. Kirk is using to get to the back part of the property.
Commissioner Higgs inquired is there a lawful way for a property owner under a similar circumstance with zoning and size of the property to sell trees to a landscaper. Ms. Church responded one would have to rezone the property to an agricultural use or GU of five acres or larger. Commissioner O’Brien inquired are adjacent properties zoned AU or GU; with Ms. Church responding no.
Chairman Scarborough stated the documentation indicates Ms. Church had dealings with Mr. Kirk in 1998 and he was aware of land clearing Codes; so the conversation was not directed to this property or those trees prior to the act taking place. Ms. Church noted the activity was not with the specific trees; Mr. Kirk had issues with overgrowth on the property with Code Enforcement; Mr. Kirk did clearing and took out trees, but such trees were not protected; and she had conversations with Mr. Kirk on the phone and on the property concerning what the land clearing requirements were. Chairman Scarborough noted so Mr. Kirk was aware there was a Code problem before he took action; with Ms. Church responding yes.
Mr. Stadler stated the Land Clearing Ordinance does not say the property has to be zoned AU; the Ordinance says that the harvesting of trees is an exempt activity, but does not say in AU zoning or anything else, but bona fide agricultural pursuit; and the property could not be permitted or Mr. Kirk would have obtained a permit and solved the problem, and tried to do so. He noted Mr. Kirk cannot get a permit to have what has been an existing driveway go back there and clear the area out the way the Ordinance is written. Commissioner Higgs inquired if Mr. Kirk made an application for a zoning change, could he get a permit to sell the trees; with Mr. Stadler responding he does not know. Mr. Stadler stated the existing road has been there for a long time; Mr. Kirk has accessed it to get to the back of his property; he could not get a development order and permit to get a tree clearing permit as it stands right now; and he could not get a permit to put a driveway in without a primary building. Commissioner Higgs stated one could not build a McDonald’s there either; and there are a lot of things someone could not do based on the zoning. Mr. Stadler stated the County cited Mr. Kirk for failure to have a permit he cannot get. Commissioner Carlson stated the permit would be through Land Development; and an active development permit is the permit to take trees away. Chairman Scarborough stated that is one way, but not the only way; there was an indication by staff that the full $12,500 should be imposed; the Special Master recommended the amount be substantially reduced; and he believes the safe ground is to go with what the Special Master has recommended.
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve the Special Master’s recommendation to reduce the assessed fine for Case #A02-1557 from $12,500 to $7,500; and direct staff to prepare and execute release and satisfaction of lien upon receipt of payment. Motion carried and ordered unanimously.
STAFF DIRECTION, RE: RV PARKS IN AU ZONING CLASSIFICATION
Planning and Zoning Director Mel Scott stated staff provided a report in response to a previous Board meeting where a vested rights request was withdrawn; there is a Moose Lodge that has been in operation for some time on North Merritt Island; upon withdrawing its vested rights request to be able to retain an RV Park use on its property, it capped it within its organization to 20 RV’s at any given time; and the RV patrons have to be members of the Moose Lodge and have to eat their meals at the Lodge. He noted the patrons are only parking there on a temporary basis; in response to the withdrawal of the vested rights request, the Lodge requested staff come back with a report which investigates the opportunity of including RV Park use in the AU zoning classification in some iteration, which is what the Lodge’s property possesses; to introduce a use into any particular zoning classification, there are many permutations to choose within the zoning classification, which include listing it as a permitted use and accessory use; and there is Conditional Use Permit (CUP) on the property for the private club within the AU zoning classification, so it could be an accessory use to the private club. Mr. Scott stated it would further limit its applicability Countywide taking that course, or the Board could direct staff to move forward with an ordinance to have it classified as a use permitted with conditions or as a CUP. He noted there are a number of options before the Board for its discussion; and this item would only direct staff to further proceed with the Code amendment.
Attorney Leonard Spielvogel, representing Merritt Island Moose Lodge, stated the Lodge has been at the location north of the Barge Canal on North Courtenay Parkway since 1979; it has a 18,000 square-foot building located on the property; the membership is 2,400 people; and should the Board see fit to say no to allow any sort of Recreational Vehicle (RV) use in connection with AU zoning, there is support in staff’s report for it. He noted there are two aspects: (1) whether the Board believes the Merritt Island Moose Lodge is deserving of special consideration to allow a limited RV use on the property; and (2) the Board has to be concerned whether it is opening Pandora’s box and if it is setting a precedent. He stated the practice has been going on for over 20 years; there never has been a complaint until November 2001; the use has not been objectionable to the community; and a few months before an anonymous complaint was filed, the Lodge was visited by the Health Department, which indicated the Lodge had to create pump out facilities. He noted the Lodge put in such facilities at a cost of about $14,000; four to six months before the Health Department visited the Lodge, the Department was taken over by the State; in order to argue vested rights, there has to be an act of the County; so he lost the ability to argue vested rights before the Board. Attorney Spielvogel stated if the Board believes the Lodge deserves consideration, the Lodge would need to have conditions; suggested the Board require conditions be imposed before the use can be made; noted attached to staff’s report is a copy of his letter suggesting certain conditions and limiting the number of vehicles; and the Lodge has never allowed more than 20 vehicles for a limited period of time. He noted the visiting members are members of other lodges that come to the Merritt Island Moose Lodge from elsewhere in the northern hemisphere; they stay a limited period of time and move on; conditions can be added to his letter; in addition to being a not-for-profit organization, the Lodge could be a 501(c)3 registered with Internal Revenue Services; and landscaping and buffering requirements can be imposed as conditions so that the Lodge would not work a detriment to the neighbors. Attorney Spielvogel stated if the Board allows the
Lodge to go forward, County Attorney Scott Knox, Mr. Scott, and he could draft conditions; and requested the Board allow the Lodge to continue a use that persisted for 20 years.
Attorney Tom Burrows, representing Bill Jamir, stated Mr. Jamir is the owner of 25 acres of AU property that adjoins the Moose Lodge’s unauthorized RV park; his client opposes changing the zoning on the parcel; the Moose Lodge has done everything except apply for existing zoning in the County for an RV park; but for some reason it has been reluctant to do that. He noted the requested zoning change only fits the one customer; it may as well be called, “The Moose Exception”; it is spot zoning and not what the Board has attempted to do in Brevard County; and the Board has zoning laws that are to cover all citizens under all circumstances. He stated he is not trying to bash the Moose Lodge; he is sure it is good and can say a lot of good things it has done; but the County should not do zoning this way. Attorney Burrows advised in the County’s existing zoning for RV park, it has site control planning; it sees that safety and sanitary functions are carried out properly; if the Board approves the proposed request, it will not be able to control the RV parks; and inquired is there someone on the Board or County staff who is a member of Merritt Island Moose Lodge. He reiterated his client’s opposition to the Moose Lodge’s request.
Commissioner O’Brien noted he is a member of the Merritt Island Moose Lodge.
William Jamir stated he owns 25 acres behind the Moose Lodge; he hopes to develop the property and put nice homes there; the County may not be able to disguise an RV park; and there is Tingley’s RV Park and Marina down the street less than one quarter mile that could accommodate visiting members of the Moose Lodge.
Henry Parrish stated he is opposed to the Moose Lodge’s proposed request; and inquired if he intends to sell his property, how would a homeowner like to face an RV Park.
Commissioner Higgs stated the Board should not amend the AU zoning classification; if the Moose Lodge would like to apply for an RV Park, it is the proper thing to do; and she wants to accept staff’s report and go on.
Commissioner O’Brien stated the RV park of the Moose Lodge has been there for over 20 years; the County should find itself more accommodating because the Moose Lodge was operating under the condition for septic tanks and made a substantial investment, gaining a vested right; although the Health Department shifted to the State, the Board should look at it as a County issue; so there is an investment that was made with the idea that nothing was wrong all those years. He noted the Board could draft conditions; it is not changing the law to accommodate the Moose Lodge; there are probably other places in the County where it would not be the appropriate place; if the conditions say that the buffer will be 15 feet or 30 feet, there would not be visual blight to abutting adjoining properties; and the property is heavily forested all the way around. Commissioner O’Brien stated Tingley’s RV Park may be torn down in the next three to four years and become multi-family housing; some RV’s cost up to $500,000; the activity has been going on for 20 years with no complaints; the Board should find a way to help accommodate the Moose Lodge so there is no visual blight to abutting properties; and properties zoned AU could operate an RV Park only if certain conditions were satisfied.
He noted staff could come back to the Board with a list of conditions similar to a binding development plan; and the County could accommodate the public and abutting property owners.
Motion by Commissioner O’Brien, to allow RV parks in AU zoning classification with certain conditions. Motion died for lack of a second.
Chairman Scarborough stated he wishes there was a way for the County to do more
spot zoning; every piece of property is unique; the problem is any change touches
everyone who has AU zoning throughout Brevard County; it is a means of making
life in the County extremely complex; and inquired does AU zoning mean agriculture
or are there subcategories also. He noted he likes the Moose Lodge, but does
not know if he can help it as he is afraid of going that route.
The Board acknowledged report by staff concerning amending the Agricultural Use (AU) zoning classification to allow a recreational vehicle park to be an accessory use, a use permitted with conditions, or a conditional use; but took no official action on the item.
RESOLUTION AND COUNTY DEED, RE: CONVEYING FEE SIMPLE INTEREST IN
COUNTY PROPERTY TO ST. GABRIEL’S EPISCOPAL CHURCH AND RELEASING
REVERTER CLAUSE
Commissioner Higgs stated the appraisal was made in June 2001, so the appraisal is a little over one year old; she is not opposed to moving forward to do the sale; however, the County needs an updated appraisal so the Board can be sure of the price.
The Board tabled Resolution and County Deed conveying fee simple interest in County property to St. Gabriel’s Episcopal Church and releasing the reverter clause included in the Deed until a recent appraisal is received.
The meeting recessed at 3:07 p.m. and reconvened at 3:24 p.m.
STAFF DIRECTION, RE: EXEMPTING FIRST FLOOR PARKING FOR SINGLE FAMILY
HOMES
Attorney Richard Torpy, representing the Nielsons, stated his clients are building a four-story home in South Melbourne Beach; the issue today is not about his clients, but a Code the Board adopted in 1986; Section 8605 deals with height; and when the Nielsons met with the Planning and Zoning staff, the specific issue was height and how it is measured. He noted the specific question was whether or not the first floor of the Nielsons home, which is the garage, would be calculated against them for height consideration; they were told it would not be; the Nielsons started their plans and came up with the plan for a four-story home; brought such plan to various County departments for approval; and the plan was stalled a few weeks ago due to the height issue. He inquired does Section 8605 apply to single-family structures; stated he does not know if it matters for the Nielsons today; since 1986, when the Ordinance was adopted, the issue has never come up before; this is the first time a single-family residence has asked to apply the height restriction with the garage underneath; and he understands the Board has bigger issues to discuss, including whether or not it was the intention to enact the Ordinance for height restrictions that would apply to single-family residences. Attorney Torpy stated if it is the Board’s intention to apply Section 8605 to single-family residences then his clients can move forward; Section 8605 (3) provides for measuring the maximum height at the first habitable floor; he talked to Commissioner Higgs and she is under the impression the Ordinance was intended to apply only to large high-density residential structures, such as hotels, motels, and condominiums; but if the Board decides to make it clearer in the Code and only apply the measurement standard to multifamily high-density structures and not to single-family residential, he would request it not apply to the Nielsons. Attorney Torpy stated his clients clearly have a vested right; they consulted specifically with County staff on the exact issue of where the height would begin; the Nielsons designed their property with a first-story garage, a non-habitable structure; and requested the Board allow the Nielsons to move forward and the County issue a building permit for his clients.
Planning and Zoning Director Mel Scott stated the agenda item is presented to the Board so it can clarify to staff what its intention is regarding the measurement of building height; the Nielsons are desiring to utilize the Code provision in a literal interpretation for their single-family home; and staff has read the Code literally and has dozens of Code amendments in the process for clarification purposes, if the intent is different from the black and white read of the Code. He noted staff read the provision which states, “Where one level of parking is provided under the principle building, building height shall be measured from the elevation of the lowest point of the structure of the first habitable floor”; regardless of whether or not the legislative intent of that provision in the mid-1980’s was to only address multi-family or hotel uses, on its face, there is no distinction made in the phrase; Attorney Torpy’s client came to the County and requested the provision be applied to a single-family residence; and having no distinction in the Code to render a decision otherwise, staff has allowed the single-family residence to proceed in the permitting process. Mr. Scott stated the Nielsons have not yet received a building permit and did not receive the interpretation from staff in writing; but the meeting and advice took place; and inquired what does the Board desire the provision to mean. He noted in the mid-1980’s when the Code provision was introduced, it is clear to him, in reading the Ordinance, that the preponderance of development in the South Beaches was multifamily and high-rise development; it is one of the reasons why there was specific attention given to that type of development; the parcel that the Nielsons’ single-family residence will be constructed on is zoned multi-family and was zoned RU-2-4; and at that time, the residence could be constructed to 45 feet in height with multiple units in it. Mr. Scott stated it was that kind of structure the Board was focusing on in the mid-1980’s; there were no building height restrictions placed on the beach in the mid-1980’s; the Board felt the need to do something about it; however, fast forwarding to 2002, it is difficult to apply legislative intent that far removed from the discussion; and staff did not apply such intent. He noted the Planning and Zoning Office has hundreds of permits that go through it each week; when someone requests to benefit from a Code provision, staff reads such provision; the Nielsons were attempting to use the provision in a way it had not been used before; and that is why the issue has been brought before the Board today.
Commissioner Higgs stated she was part of the citizens’ groups that were lobbying the Board in the early and mid-1980’s regarding growth management on the South Beaches; there were no height restrictions; the imposition of such restrictions were important; and what is important for the Board today is to read the definition in the Ordinance fully, which can only lead to the conclusion that the third paragraph, dealing with the level of parking and habitable floor issues, was and is intended for multifamily, condominiums, and hotel-type developments. She noted the third clause is where there seems to be some confusion as to what it means; if it is read carefully, it does not necessarily come to that conclusion at all; but supports the concept that level of parking and habitable was intended for multifamily. Commissioner Higgs stated level of parking is not a term used to describe anything in single-family home development; garages are permitted uses in the Zoning Code; it is a clear distinction; and level of parking is some other animal other than single-family. She noted in the Code there is also a reference to breezeways and visual corridors; there is a distinction; Section 6105 describes the breezeways and visual corridors; they are for single-family homes under Florida Statutes; so there is another distinction.
Chairman Scarborough inquired does there need to be any changes to the Ordinance. Commissioner Higgs responded the Ordinance stands on it own as it is; however, some clarification may be needed. Chairman Scarborough inquired about Attorney Torpy’s clients’ issue. Commissioner Higgs responded it is a vested rights determination that the Board should consider as a separate item; it must pass the test under the vested rights issues based on the facts of the case; and Attorney Torpy and staff should present it as a separate issue. Attorney Torpy stated he would rather not have further delay of the project; he has spoken to staff at length during the past two weeks; staff has made its position clear with regard to the advice it has given to the Nielsons; and the Nielsons clearly acted in reliance on the advice. He noted dealing with a large construction project every day is cost for a client; and requested the Board not make his client come back again and jump through all the hoops to get a vested rights decision, but make a motion today to allow staff to issue the Nielsons’ building permit based on the interpretation given that the height begins to be measured at the first habitable floor. He stated the Board could continue to do what is necessary to clarify the Ordinance for future application; and the Nielsons have done everything the County requested of them.
Chairman Scarborough inquired does Attorney Knox see any questions on whether or not there could be vested rights with the Nielsons. County Attorney Scott Knox responded staff admitted it made a representation that Mr. Torpy’s clients relied on.
Commissioner Higgs stated a vested rights determination is made under a public hearing; it is a special type of hearing that is noticed; and it would be unfair to the citizens of Brevard County and the wrong procedure for the Board to take by not having the public hearing. She noted there are people who will feel harmed by this decision; those are the people whose homes are close to this; they have a right to be heard on the issue; and if there is a vested right, the people have a right to be heard. She noted the Ordinance, until now, by everyone’s admission, has not been confusing; it has been applied one way; the County does not have such a fatally-flawed Ordinance that it has allowed bazaar interpretation; it has been interpreted under one way; and the vested rights determination needs to be made with the facts in hand and with the people who may be affected.
Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to report back to the Board with clarifying language that the County does not measure from the first habitable floor in single-family homes and measures from the final grade of the development. Motion carried and ordered unanimously.
Attorney Torpy inquired where does this leave his client. Chairman Scarborough responded the Nielsons have the option to ask for a vested right; the Board cannot tell the Nielsons to apply for same; but there is a strong inclination from staff and the County Attorney that there is a compelling case for vested rights; and there is a certain process to go through before the Board can render a decision. Attorney Torpy stated vested rights has to do with whether or not his client acted in reliance on information given by the County to their detriment; whether or not the citizens like it or not is not an issue in vested rights; and inquired will the vested rights issue be open to the public for a public flogging of whether they like the idea. Chairman Scarborough responded he has never seen anything that comes before the Board that is not open to the public; the process is to allow the public to comment; and if there are questions for the Board or staff as to what was said and how it was said, they have that opportunity. Attorney Torpy stated he disagrees in this particular context with admissions from everyone as to what has occurred; it causes further delay and time; but if it is the Board’s wishes, his client will come back.
Commissioner Higgs noted there is no way the Board could do it any differently than to have a full public hearing that is required by the law; it would be like having a zoning hearing and not noticing it; she is not ready to concede that there is a vested right; she wants to see the documentation; and as in any legal issue, there are two sides.
TEMPORARY REDUCTION OF ADOPTION FEES, RE: ADOPTION FAIR AT SOUTH
ANIMAL CARE AND ADOPTION CENTER
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the temporary reduction of the adoption fees from $67.00 to $57.00 for dogs during the two-day adoption fair at the South Animal Care and Adoption Center on October 25, and 26, 2002. Motion carried and ordered unanimously.
INTERLOCAL AGREEMENT WITH BAREFOOT BAY RECREATION DISTRICT, RE: USE
OF RECLAIMED WATER ON GOLF COURSE
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to recess as the Board of County Commissioners and convene as the Governing Body of the Barefoot Bay Water and Sewer District. Motion carried and ordered unanimously.
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Interlocal Agreement with the Barefoot Bay Recreation District for use of reclaimed water on the Recreation District’s golf course for a term of 20 years. Motion carried and ordered unanimously.
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to reconvene
as the Board of County Commissioners. Motion carried and ordered unanimously.
APPROVAL, RE: REFUNDING OF SALES TAX REVENUE BONDS, SERIES 1993
Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the Financial Advisor, Bond Counsel, and Disclosure Counsel to prepare bond documents and take necessary action to solicit competitive bids for the refunding of the Sales Tax Revenue Bonds, Series 1993; approve publication of the Summary Notice of Sale; and authorize the County Manager or his designee to finalize the Preliminary Official Statement for the refunding project. Motion carried and ordered unanimously.
RESOLUTION, RE: QUALIFYING SONETICOM, INC. AS AN ELIGIBLE BUSINESS
UNDER
THE COUNTY’S TAX ABATEMENT PROGRAM
Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt Resolution qualifying Soneticom, Inc. as an eligible business under the County’s Tax Abatement Program; and authorize a public hearing to consider adopting an exemption ordinance. Motion carried and ordered; Commissioner Higgs voted nay.
FINAL PLAT APPROVAL AND ACCEPT RIGHT-OF-WAY DEED FOR FOLSOM ROAD,
RE: WALKABOUT PUD
Chairman Scarborough requested the County Attorney address the questions of the signing of a plat when there are liens on the property.
County Attorney Scott Knox stated the platting is governed by Chapter 177, Florida Statutes; one of the provisions requires anyone that holds an interest in property to be dedicated to the County to sign off on the dedication; it is his understanding that the property has several liens on it; and in order to plat it, there needs to be sign off from those people as they have an interest in the property, which would have to vest in the County, in order to grant fee simple title to the County on dedicated lands. He noted there are two choices—either sign off on the plat as lien holders or the lien be paid off.
Chairman Scarborough stated the Board could approve the item and authorize the Chairman to sign the final plat only after all lien holders who need to join in the plat have signed; and there needs to be continuing title searches. Attorney Knox stated at the time the Chairman signs the plat there would probably have to be an updated title search. Chairman Scarborough noted he would sign the plat only on the advice of the County Attorney.
Permitting and Enforcement Director Ed Washburn stated the item would also include acceptance of the Right-of-way Deed for Folsom Road.
Eugene Gerlica, representing Millenium Development of Titusville, requested the Board approve the plat without any conditions.
Chairman Scarborough responded the Board cannot do so due to the County Attorney’s advice. Mr. Gerlica stated there may be some issues and facts that may influence the Board’s decision and the County Attorney’s opinion. Chairman Scarborough inquired if Mr. Gerlica has talked to the County Attorney; with Mr. Gerlica responding no. Mr. Gerlica noted in regard to Attorney Knox’s statement about liens against the property, there is only one lien; concerning signing a plat that has a dedication for public improvements or right-of-way, or dedications of the public, there are none on this plat; there are two things that may confuse that; and acceptance of the Deed conveyance is one issue. He stated the road is not dedicated by plat.
Chairman Scarborough stated he is not prepared to discuss the issues today; and the details need to be brought back to the Board on another agenda after Mr. Gerlica talks to Attorney Knox.
The Board directed staff to schedule final plat approval and acceptance of Right-of-way Deed for Folsom Road for Walkabout PUD on the agenda, but not as a consent item.
DISCUSSION, RE: OLSON TIRE COMPANY
Commissioner Higgs stated when the County had the Olson Tire issue and a permit was issued on a driveway, it resulted in a number of different discussions; and requested the County Attorney provide a memorandum to the Board on where it is in regard to vested rights if there was an error in issuing the permit.
PUBLIC COMMENT - BEA POLK, RE: ASSESSMENTS AND REPLACEMENT COSTS
FOR TRAILERS AND ACCESSORY STRUCTURES
Bea Polk expressed concern on assessments and replacement costs for trailers and accessory structures; stated she has talked to individuals in Tallahassee; one woman indicated it is a new process; and she is concerned about what may happen with individuals’ homes. She requested the County Attorney do research on the issue to see if anything could happen concerning people’s homes; stated individuals are concerned if the buildings can be assessed at replacement costs; and inquired what is going to happen to their homes. She noted the appraisals would be high; some of the appraisers in the State indicated the residents would not pay any more taxes; but she does not believe it. She stated if houses are put at replacement value, the residents would pay more taxes; every time her appraisal increases, she pays more taxes; and before the issue gets out of hand, she would like the County to do some work on it.
County Attorney Scott Knox stated he has done research on the issue and can provide a memorandum to the Board and Ms. Polk explaining it.
PUBLIC COMMENT - SUSAN CANADA, RE: POLICIES AND PROCEDURES FOR
ANIMAL SHELTERS
Susan Canada stated last night she received telephone calls from people regarding the new policies and procedures for animal shelters; some of the policies are for animal rescue organizations and foster care programs; one item asks for drivers license numbers; and a lot of single women do not feel comfortable providing their drivers license numbers. She noted many individuals, instead of taking animals from the shelter, usually work with animals on the street that do not have a place to go; due to low adoption rates at the shelters, they have assisted with adoptions, fostering, etc.; the new procedure states, “All animals placed with a rescue organization must be spayed or neutered prior to placement. The rescue organization will pay $60 for dog rescue and $40 for cat rescue.” Ms. Canada stated she called some of the national breed rescues, which indicated they are not going to pay such fee; she is curious if the SPCA is going to have to pay the fee as it transfers many dogs from the North Animal Care Center to its facility to increase adoptions; and inquired will the rescue organizations and no-kill shelters have to pay the fee. She noted the Policy says that the staff veterinarian makes all decisions and approvals to place any animal into foster care; in North Brevard, her organization only has a veterinarian once or twice a week at the most; there has been great success with unweened orphans in her organization; and the Policy says, “All potential foster caregivers must comply with the following before fostering: Be initiated as a regular volunteer.” Ms. Canada stated some caregivers do not wish to volunteer; the Policy also reads, “No foster home will be authorized to have more than one under-socialized animal at any given time”; many people handle feral cats; some individuals have a problem with the Policy that says, “No more than one unattractive animal at any given time . . .” and that, “No animal eligible for the foster care program will be placed into a foster home that is already treating or socializing a foster animal”; and several people are capable of taking care of more than one animal. She noted the Policy further states, “Kittens will not be placed into a foster home where dogs or cats reside due to the potential for disease transmission”; the majority of dogs in North Brevard have Parvo; nothing is mentioned on dogs or puppies; and the rescuers know to isolate them. She stated exotics have been omitted; they need special immediate care; many times staff is not trained in proper care; and special well-trained homes are needed. Ms. Canada stated if the County wants the Policy to be strictly animal control where all it does is pick up and kill animals then this is the Policy; but if it wants the Shelter to be a haven for animals in need and an adoption agency, then the Policy needs to be changed. She requested the Board appoint an advisory board for animal services; and stated the Policy is unreasonable.
Assistant County Manager Don Lusk stated the Foster Care Policy is an internal policy that the Shelter Manager and staff put together; there were discussions with individuals who do foster care, etc.; it has always been a staff level-type of Policy; and there has not been an advisory board in the past to review such a policy, although it has been discussed. He noted there is an Advisory Board at this time for the feral cat issue; what Ms. Canada is referring to probably has not been discussed specifically with her, but has been discussed with other individuals; there have been a great deal of problems with the foster care program, tracking animals, knowing how many people had the animals, and how the animals were cared for; and when the County puts animals in foster care with somebody, it is still responsible for them. Mr. Lusk stated a lot of the rules Ms. Canada has discussed have valid reasons behind them; and if the Board would like staff to prepare a memorandum updating it on the issues, it will do so.
Chairman Scarborough stated if it is something between staff’s operation and the community, there may need to be additional dialogue set up with the community so that all thoughts can be further incorporated; any individual can visit the Commissioners’ Offices if there are concerns; but if the Policy has been generated by staff and is at the staff level, the County needs to make sure it works there first.
Commissioner Carlson stated that is fine as long as staff interfaces with Ms. Canada and other individuals so that everyone knows what is going on; and the justification from staff is well understood.
Chairman Scarborough stated there will be an opportunity to get more people involved; and everything is there for discussion.
APPROVAL, RE: CANCELLATION OF WORKSHOP
County Manager Tom Jenkins requested the Board cancel its workshop scheduled for October 24, 2002 as there is no topic for discussion.
Motion by Commissioner Carlson, seconded by Commissioner Higgs, to cancel the workshop scheduled for October 24, 2002 as there is no topic for discussion. Motion carried and ordered unanimously.
WARRANT LISTS
Upon motion and vote, the meeting adjourned at 4:03 p.m.
ATTEST:
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TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK
(S E A L)