January 20, 2005

The Board of County Commissioners of Brevard County, Florida, met in special workshop session on January 20, 2005, at 9:00 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, D.P.A., Commissioners Truman Scarborough, Susan Carlson, and Helen Voltz, Interim County Manager Peggy Busacca, and County Attorney Scott Knox. Absent was: *Commissioner Jackie Colon.

ANNOUNCEMENT

Chairman Pritchard announced the Workshop is on Land Clearing, Tree Protection, and Landscaping; and at 2:00 p.m. the Board will meet with the Legislative Delegation.

REPORT, RE: JOINT MEETING WITH CITY OF COCOA

County Attorney Scott Knox requested authorization to seek a joint meeting with the City Council of Cocoa on March 3, 2005 at 3:00 p.m. before the Zoning meeting regarding the pending litigation on annexation. He stated it is required by law to hold a joint meeting.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve a joint meeting with the City of Cocoa on March 3, 2005, at 3:00 p.m. regarding pending litigation on annexation. Motion carried and ordered unanimously.

REPORT, RE: JOINT MEETING WITH THE CITY OF PALM BAY

Interim County Manager Peggy Busacca advised late yesterday afternoon staff contacted Commissioners’ staff about a joint meeting with the City of Palm Bay; the City has tentatively agreed to March 1, 2005; and inquired if the March 3, 2005 meeting is going to cause the Board not to want to schedule another meeting on March 1st. Chairman Pritchard stated it works for him. Ms. Busacca stated she will put the information together after the City decides it is convenient for it as well.

REPORT, RE: PEOPLE DIGGING IN DUNES ON THE BEACH

Commissioner Voltz advised she received an email last night about people who are walking through beachfront property and digging into the dunes looking for things with metal detectors; the property owner asked them to leave the property and they refused; and they did not want to call the police to go all the way down to Floridana Beach and wondered if there was anything the County could do, i.e. post signs or something to prevent people from doing those kinds of things when beach restoration is going to be underway and it is going to be a mess.

Chairman Pritchard inquired if it is being done on private property; with Commissioner Voltz responding yes. Chairman Pritchard inquired if they can post no trespassing signs on their property; with Commissioner Voltz responding even if they did that, they would have to call the police to come all the way to Floridana Beach for someone digging on private property when they have more important things to do. She stated she does not know what the Board can do at this point except to ask the property owner to post the private property signs. Chairman Pritchard inquired if Mr. Knox has any suggestions; with County Attorney Scott Knox responding he would need time to brainstorm it with his staff.

REPORT, RE: NOTIFICATION TO SCHOOL BOARD ON DEVELOPMENTS

Commissioner Voltz advised at a meeting Monday evening in Barefoot Bay, one of the School Board members was there and they were talking about potential development in Barefoot Bay area; and the member knew nothing about the development and several others that could potentially go in on Micco Road. She inquired what kind of communication does staff have with the School Board to let them know what is going on so they can better plan their schools.

Interim County Manager Peggy Busacca advised for a number of years staff has provided the School Board with each and every subdivision as it comes into the County for review; the School Board members may not be aware of that, but the School Board staff is provided with a copy of each and every subdivision before it is approved and while it is still going through review.

Commissioner Voltz inquired if someone comes it for rezoning, does staff give the School Board the information; with Ms. Busacca responding they do not, but they can provide the School Board with the rezoning agenda. Commissioner Voltz stated she does not know what is going on down there, but understands there are several potential developments that are going in on that road; and the School Board did not know about it and was looking at planning schools and where they need to put them. She inquired if it is possible to send the School Board the zoning items even if it is just for their information; with Ms. Busacca responding affirmatively.

Commissioner Carlson stated there is a School Board appointee on the Zoning Board so there ought to be some communication there.

ANNOUNCEMENT

Chairman Pritchard advised Commissioner Colon has been detained and will not be at the meeting until 11:00 a.m.

DISCUSSION, RE: LAND CLEARING, TREE PROTECTION, AND LANDSCAPING

Natural Resources Management Director Ernie Brown advised the topic today is the land clearing, tree protection, and landscaping Ordinances, and the legislative intents associated with some of the parameters in those regulations; and he will provide an overview of what brought the issues here today and establish a platform for where they want to go from here. He stated in March 2004 staff of Natural Resources Management identified three general areas in the regulations that would create problems for implementation of the Ordinances; they include agriculture exemptions, tree removal permits, and tree canopy preservation and betterment plans. Mr. Brown stated on May 25, 2004, the legislative intents were presented to the Board at which time the Board directed staff to conduct community meetings to obtain public input on the proposed legislation; and the modified legislative intents are before the Board today. He stated the public meetings occurred in June 2004 in Palm Bay, Titusville, Merritt Island, and Scottsmoor; in addition to those meetings, the Agriculture and Extension Services Department facilitated two agricultural forums to receive input from the agricultural producers and agricultural community; and the legislative intents were posted on the Internet shortly thereafter. He stated on October 12, 2004, the information was brought back to the Board; and based on what transpired at that Board meeting, the Board scheduled this workshop to go over the legislative intents in more detail.

Chairman Pritchard advised he passed out a package beginning with #1 at the bottom of the page, Agriculture Exemption Use, which parallels the pages in the workbook; and his committee, which included planners, environmental consultant, attorney, and developer reviewed the items and tried to make it more user friendly, responsible, and allow people better utilization of their property without creating roadblocks and ways to say no. He stated they focused on in-fill, areas of redevelopment, and blighted and disturbed areas because of how much better it would be to treat those areas with new growth and new construction rather than go out into other areas that are still undisturbed. Chairman Pritchard stated as a format for discussion, the Board may be well served if it uses what he handed out, which is verbatim what they have with his committee’s input for changes, to at least give them talking points they need to discuss. He stated he also included Chapter 62 so they have that as reference, which is the landscaping, land clearing, tree protection, and land alteration Ordinances.

Commissioner Carlson inquired if the comments are the same as the ones Mr. Brown talked about or a separate group; with Chairman Pritchard responding if Commissioners would look at the page in front of them and compare it to the page Mr. Brown provided, the wording is identical. Commissioner Carlson stated she understands that part; but inquired when he talked about the group he met with is that the same group Mr. Brown met with in terms of input or are they two different groups. She stated comments come from a larger diverse group; and Chairman Pritchard’s comments are more focused on the three areas. Chairman Pritchard stated the input he provided is identical with the exception of the changes; they have not stricken anything; so when they compare the two, they can see what they have done by crossing, underlining, enhancing, and trying to make a betterment. He stated the committee felt staff should be given more discretion; staff should be given the broader perspective that they can look at, make decisions based on responsible input, and find ways to say yes instead of finding ways to say no. He stated he knows they are constrained by federal regulations and have to deal with that; but frequently there are areas where there is little room for interpretation; and too frequently, they tend to take the interpretation toward the no side instead of how can they get it done. Chairman Pritchard stated he appreciates Mr. Brown’s new eyes; they have been moving forward with what they are able to do now with beach renourishment, dune stabilization, and some of the other projects; and that is the way government should be. He stated government should not be there to always say no; government should be there to provide a service and help people; and with that, he has other comments and several speakers. He inquired if the Board wants to hear from the speakers first; with Commissioner Carlson responding the Board should hear from staff first. Chairman Pritchard stated after staff’s presentation, the Board will have public comments.

Mr. Brown explained a slide presentation beginning with agricultural exemptions; and stated it is a summary of the issues staff identified that goes into greater detail in the written documentation Chairman Pritchard added comments to. He stated the existing Code allows for someone to obtain an agricultural exemption, clear the property, and develop without saving the tree canopy; and that is an inappropriate application for agricultural activities. He stated the second aspect is there is no clear differentiation between commercial and domestic agricultural operations; and the legislative intent looks to add some parameters around those criteria, in particular to identify bona fide agricultural operations and look at limitations for converting to nonagricultural uses. He stated that is linked to a three-year timeframe; and St. Lucie County just went through that with its conversion process. He stated what happens is property is cleared under the agricultural exemption but never has the opportunity to operate as an agricultural activity before transitioning into development; and whether intentional or unintentional, the plans associated with development or the criteria and Ordinances associated with development were circumvented under the premise of agricultural exemption. Mr. Brown stated staff wants to afford agricultural operations assurances that they are being treated as agricultural operations and not as a mechanism to circumvent development Ordinances and requirements associated with tree canopy; and the three-year limit is a standard that many localities are now embracing. He noted some have five years, but during the last discussions with public comments, three years seemed to be the most appropriate. He stated staff is also asking for some flexibility associated with recognizing hardship cases within the agricultural community relative to the regulations. He stated the next area they are looking at deals with existing tree protection Ordinances; and currently less than one-acre lots are restricted from clearing even after development.

Commissioner Carlson inquired if the Board wants to deal with the issues separately. She stated it would be a lot clearer for everyone listening if they can handle the agricultural exemption issues, then get questions answered, ask the public what they want to do, then come up with some sort of direction. Chairman Pritchard stated that would be fine. Commissioner Carlson inquired if Chairman Pritchard wants to go over the questions he handed the Commissioners; with Chairman Pritchard responding yes, he would.

Agricultural Exemption

Chairman Pritchard stated one of the questions is what is the difference between the Property Appraiser’s and Natural Resources Management’s application when determining exemption from land clearing and tree protection permitting.

Sherry Williams with Natural Resources Management advised staff uses the Property Appraiser’s determination; the Property Appraiser by State law determines when an agricultural operation is bona fide; and that is what the Ordinance works from to define bona fide agricultural operations. She stated State law governs how they determine that; and once the Property Appraiser’s office makes that determination, staff accepts it and moves on. She stated the Property Appraiser is the responsible entity for making that determination. She stated domestic agricultural operations are determined by the County in cooperation with the Planning and Zoning Office and Natural Resources Management; when someone applies for an agricultural exemption with Natural Resources, Planning and Zoning first makes a determination if it is properly zoned for domestic agricultural operations; and what they are talking about is clearing for horse pastures or having a vegetable garden that they want to do. She noted the application comes through Natural Resources Management for an agricultural exemption for land clearing. Chairman Pritchard inquired if domestic agricultural use receives a tax break from the Property Appraiser; with Ms. Williams responding not to her knowledge.

Mr. Brown stated under domestic agricultural operations, which is not clearly defined by the Property Appraiser’s definitions, they have gone to Natural Resources Conservation Service (NRCS) through the agricultural exemption process and relied upon their determination as to whether or not it is a viable agricultural activity. He stated Dave Millard is the NRCS representative who works in the Extension Office under Jim Fletcher, Director of Agriculture and Extension Services Office; and that is the mechanism staff uses right now because they do not have another definition of what domestic agricultural operations are. Chairman Pritchard inquired if the Board needs to come up with another definition; with Mr. Brown responding he does not know exactly what that would be, but the Board could choose to allow the process to define that so they are inclusive of what domestic agricultural operation is. Commissioner Carlson inquired if it needs to be defined in the Code for zoning purposes; with Interim County Manager Peggy Busacca responding the Zoning Code has a list of permitted uses; people can have four horses per acre in RR-1; but the Code does not say domestic agriculture allows four horses versus one horse. Commissioner Carlson inquired if chickens, cows, and small farm animals on a piece of agricultural property is called domestic agricultural operation; with Ms. Busacca responding the Board can define domestic agriculture as that permitted under agricultural zoning classifications, RR-1, etc. Commissioner Carlson stated the Board needs to work up a definition. Chairman Pritchard inquired if that is something staff can do and bring it back to the Board; with Ms. Busacca responding yes.

Chairman Pritchard advised question #2 is what is the definition of best management practices and what are its applications. Mr. Brown advised best management practices relative to agriculture again going back to NRCS, they have an extensive list of best management practices to be applied for conservation purposes; the State may have additional best management practices; but NRCS’s definition would probably be the one to rely on. He stated it is simply practices or systems that are employed for the purposes of conserving soil and water quality. Chairman Pritchard inquired if there has been a problem for applicants trying to work out best management practices; with Agriculture and Extension Services Director Jim Fletcher responding anybody communicating with NRCS who applies for its services goes through a process; NRCS works with the applicants; and there has not been a problem. He stated there are different best management practices (BMPs); some are federal and some are specifically for citrus; and there are some State guidelines put together by the University of Florida that are being used. Chairman Pritchard inquired if Mr. Fletcher finds it user friendly; with Mr. Fletcher responding the agricultural industry has embraced them so they support the idea of BMPs and look at them as a good thing. He stated a producer, depending on what area, is not required to implement a BMP if he chooses not to do that; and there are some that choose not to do it. Chairman Pritchard inquired if staff sees any reason to change the methodology that is currently used; with Mr. Fletcher responding no, the BMPs in place are good and science-based, and they help producers in their agricultural enterprises.

Chairman Pritchard stated #3 is that a betterment plan is defined in Section 62-4331 as a plan that provides property owners with adverse conditions the flexibility to design a landscape plan to manage the specific adverse conditions; and inquired what are adverse conditions, is there a list or criteria, and who makes the determination. Mr. Brown stated betterment plans are not applications that would be employed for agricultural lands; the exemption to the Ordinance requirements offered to the agricultural community would be under the premise they would have a conservation plan in place through NRCS; so that question does not directly link to the agricultural issue. Ms. Busacca noted it could be under canopy protection betterment plans. Mr. Brown stated staff can answer that now if the Board wants them to or it can move down; with Chairman Pritchard responding he will move it to Item 5 and talk about it then. Chairman Pritchard stated it is important to develop criteria that people can follow easily as well as give staff the flexibility to find ways to say yes.

Commissioner Carlson inquired if the Board can discuss some of the proposed items that came back from the group Mr. Brown talked to. Mr. Brown advised Commissioner Scarborough asked yesterday if staff could take what is in the PowerPoint and put it side-by-side for ease of application, which was a wise move; and staff provided that for the Board today so it has the current application and proposed application side-by-side. He stated the Board has already discussed the option of bona fide agricultural operations, but they need a definition of domestic agricultural activity; and staff can develop that if the Board wants them to proceed with a cooperative work group of agricultural interests to develop that definition. He noted the other issue is the three-year time limit before conversion to nonagricultural uses.

Chairman Pritchard stated another issue is to recognize hardship; the intent is to prevent people from circumventing the intent of the law by saying they will plant corn, then leveling the property and building a subdivision; and the Commissioners are all in agreement with preventing that. He stated page 3, second part of the agricultural exemption talks about covenants; it allows for waivers in hardship cases, not limited to bankruptcy or property sold for settlement of an estate; and adding “but not limited to” was intended to cover other types of disasters, medical or whatever, that someone may have if they are legitimate. He stated the Board should not be too specific because they do not know what situation could come up and staff should have the discretion to say that is legitimate, unforeseen, and one that would then be allowed. Commissioner Voltz stated she agrees with that. Chairman Pritchard inquired if the Board wants to handle it paragraph by paragraph; with Commissioner Carlson responding they have consensus on the definition and three-year limit that have been proposed; she has no problem with “not limited to”; and if there is an issue about a particular item, the Board needs to listen to the folks in the audience who have an issue.

Chairman Pritchard inquired if they are in agreement with #3; with Commissioner Voltz responding yes. Chairman Pritchard advised #4 says the preservation requirements of Section 62-4366(b)(5) should say 1 through 4. He stated #5 is about keeping of livestock. Ms. Busacca stated the Board has asked staff to define domestic agricultural activity and that may be the place to do it as it would be less confusing; with Chairman Pritchard responding he agrees. Chairman Pritchard inquired what would it take to release the covenant after three years and after initial recording; and can there be a line in the covenant that says, “this covenant is effective until a certain date” so they can add a sunset clause to the covenant and not need to perform any other formal legal action in order for the covenant to be released. He stated as it is now, in three years they have to go through a formal process to release the covenant; and they should have it in the covenant when the release is without formal action. Commissioner Voltz inquired about something needing to happen before the three years expire; with Chairman Pritchard responding that would be under hardship; they are talking about someone who buys land, accepts the covenant, and the fourth year wants to do something different; he or she should not have to go through a formal process to release the covenant; and reiterated it should contain a sunset clause. Commissioner Voltz stated that would be great and the Board would not have it coming back. Chairman Pritchard stated if they live up to the agreement and fulfill the contract, the agreement would expire with no formal process.

Barbara Morehead of Scottsmoor stated she is opposed to any restrictions on property; when the Board tries to place time limits on the sale of property, it interferes with the free market; that is a given; and she does not care how the Board colors it or paints it, that is the way it turns out. She stated if the Board proceeds with the proposed changes, it must have a sunset so they are not faced with future hardships. She stated the recording of the covenant is excessive; she does not think they have to go to that extent if a person understands, when he buys land, he has to sign a waiver to the agreement that he will not clear or develop. She stated if the Board puts a covenant on the land, it puts a cloud on the title; and if it is not cleared up, the property is going to be a problem and the owner will have to go through a lot of hassle, which is not necessary. She read a statement as follows: “In 2003, 22 agricultural exemption packages were submitted to NRM for a total of 873 acres”; stated they talk about a concern about the increase in that, but there was one case where 700 acres were involved; so she wants to know just how many have abused the exemption that has caused the Board to go through all this rigmarole with additional regulations. Ms. Morehead stated the hardship case category is absolutely necessary; there are many things that occur in life that are not just bankruptcy and death; and by the time somebody fights all this stuff, they will be bankrupt or dead. She stated where it talks about recognizing agriculture, that should only have to do with what is recognized by the Property Appraiser; and the best management practices have no place in there because it is set up in Florida Statutes and most people will follow that. Ms. Morehead stated the Board should leave agriculture alone; it has always been historically left to its own devices; people who work at agricultural activities love the land and take care of it; and the Board does not have to make life more difficult for them.

Chairman Pritchard inquired if there is an acreage requirement for the Ordinance; with Ms. Williams responding for agricultural exemption for commercial operation, the Property Appraiser and State law govern the minimum size threshold; and for domestic agricultural operations, the minimum lot size for AU zoning is 2.5 acres and RR-1 is one acre, so it can go as small as one acre. Mr. Brown stated it is important to define the boundaries and what he would be hesitant moving forward on is making NRM the agricultural experts by putting a suite of determinants for his staff to make agricultural decisions on because they are not agricultural experts. He stated the Board has well-qualified agricultural experts in the County through the Extension Services, so as it moves down the road, he would like to lean to the experts in that field to help NRM make determinations. He stated the whole agricultural exemption issue is to try and afford that if people are operating an agricultural activity, they do not have to mess with NRM and can just work with the experts under the Extension Services and NRCS Departments; and that would help his staff so they are not placed in a position where they are trying to be agricultural experts. Chairman Pritchard inquired if there is anything in the proposal that would put them in that position; with Mr. Brown responding it is not expressly mentioned; but one of the problems is when people come in for agricultural exemption, because of the vagueness of defining domestic, they are put in the position of trying to define that. He stated if the Board chooses to make it their responsibility, that is its prerogative; but he is not sure the biologists and engineers working in his office are the right people to make those determinations. He stated he would like whatever comes out of this to lean heavily on the expertise of the cooperative relationships that Extension Services and NRCS have with the agricultural community and the expertise that they have; so as they go through the process, they need to think about how to approach it. Mr. Fletcher stated he appreciates Mr. Brown giving him all that responsibility, but will be happy to work in that area; when the Property Appraiser makes the determination of bona fide agricultural operation, they work with the people and look at the scheduled forms they file; and at that point they are bona fide agricultural operations. He stated if they do not follow that, they will have some lines to cross over that are required to become a bona fide agricultural operation.

Commissioner Scarborough stated some that use agricultural exemptions come out as subdivisions; he does not know how complex it is going to be for Mr. Fletcher to determine whether it is a subdivision or somebody who is marginally informed to do agricultural operations and does not care, or someone who is so wealthy he or she just wants to do things the wrong way. He stated he does not know if they need to define all the agricultural issues as much as define whether it becomes a development; and inquired is he wrong on that and is staff making it more complex than it needs to be. Mr. Brown stated that may be the case, and that is why the three-year limitation was recommended. Commissioner Scarborough stated someone can clear the forest to put in agricultural activity under the agricultural exemption; and if they do that and not move rapidly forward and have different agendas, there will be all those agricultural determinations in there when essentially all they are trying to preclude is the misuse of an agricultural exemption to do land clearing for a subdivision. Commissioner Scarborough inquired if there is a simpler way to go directly to the issue, perhaps by not what they do but what they do not do. Mr. Brown stated they do not want to place undue burdens upon the agricultural community in this process. Commissioner Scarborough inquired if Mr. Fletcher has a problem; with Mr. Fletcher responding Ms. Morehead is correct that they do not have to implement BMPs to be an agricultural operation; and that is something they encourage producers to do, but it is not required. Commissioner Scarborough stated unless people meet certain thresholds of what they do with their land, the Property Appraiser is not going to give them the agricultural exemption; and if they delay in going forward with planting trees or something, they should look at a simpler way to define it. Chairman Pritchard suggested NRM work on a paragraph that would make it extremely simple because the intent is to prevent subterfuge. Mr. Fletcher stated the agricultural interests understand that and support it completely.

Charles Moehle, President of Modern, Inc., advised they own directly or manage over 5,000 acres of property in Brevard County; they are mostly agricultural lands, residential, and different land uses and categories in the Zoning Code and of the Property Appraiser’s records; and the Board and staff are on the right track. He stated it has always been a problem with the agricultural community because they usually do not get involved in those types of things and are busy tending their crops and cattle and getting fences repaired. He stated there are basically five things they should strive to achieve; they should make the County Code clear that exemptions should follow the land and not the ownership; make it clear that all rights under various Farm Acts, State, federal, and local, are recognized by staff and not interfered with; and the Property Appraiser should be the ultimate authority of agricultural uses as he historically has been. He stated it is not easy to get an agricultural exemption; the Property Appraiser has staff go out and examine the properties; the County does not have that staff; the Property Appraiser’s staff is more informed and knows what is going on in the County; and if they see something changing, they are aggressive about getting more taxes for the County. He stated he agrees with Ms. Morehead that there basically should not be restrictions because they are not needed if they recognize the proper authorities he mentioned; and as far as best management practices, they should be determined by the policies of the Florida Extension Services, which includes the Soil Conservation Agency, NRCS. He stated they are strict and straightforward; even though they only have one agent who comes out, he tours the property; and if they have a BMP, they can get exempt from stormwater tax, which is very expensive for large agricultural properties. Mr. Moehle stated it is not easy to make a profit in agriculture; people are there because that is their lifestyle that has come down through generations; and they love that lifestyle. He stated the items should be specific; the Board needs to make sure County staff does not interfere with that because they do not have qualified agricultural people who understand that profession; and it should be encouraged but also protect their rights and abilities to continue on financially and practically.

Rochelle Lawandales of Melbourne stated she is interested in speaking on landscaping and canopy protection and will defer comment for now.

Brad Smith of Brad Smith Associates, Inc. advised legislative intent item #2 talks about not entertaining conversion of the properties to nonagricultural uses; and inquired if that includes consideration of rezoning. He inquired if people are growing crops and doing agricultural activities, can they still rezone their property. Chairman Pritchard stated he does not see why not. Mr. Smith stated the Board can clear it up that they cannot develop it but can have a bona fide agricultural use and change the zoning. Mr. Smith stated item #4 deals with domestic agricultural use; the main intent is to use the land for agricultural activities even though it is domestic; and inquired if they want to protect pine and palm trees. Chairman Pritchard inquired if pines and palms fall under protected species; with Mr. Brown responding it is native trees over ten inches; and they would if they are native. Mr. Smith stated he has property he wants to use for raising horses or whatever; they will not let him take out cabbage palms or palm trees; and he wants to have pasture land. Chairman Pritchard stated they were talking about oaks for shade for the cattle. Mr. Smith stated his recommendation is, in certain instances, consideration be given to protection of individual hardwoods, but he fails to see the intent to protect pines and palms. Mr. Brown inquired if it would help to provide protected trees for the express purpose of shade canopy and would that create a better definition. Chairman Pritchard stated one thing the Board will address later is its quest to save large canopy trees; and what blew over in the hurricanes were large canopy trees; it is a shame because in his neighborhood the oaks were 50 to 60 years old; and that was the only damage they had other than his cypress tree that blew over. He stated those are things the Board needs to address.

Bo Barnavon with Mercedes Homes, advised Mr. Smith brought up his comments; the original intent that was presented at the public workshops was that no developer order would be granted for three years; and as long as they are discussing uses and not the due process, he is okay with that. He stated it makes sense if someone takes advantage of a particular exemption that they have certain restrictions associated with it; and it would seem fair, but as a developer he negotiates to buy property owned by farmers that is sometimes outside the Comprehensive Plan and as long as they can take it through the process with the understanding they cannot put a shovel in the ground for three years, that is fine.

Chairman Pritchard stated Brevard County is in transition; there are some products that are not economically viable to the farmer; citrus is a good example; and they cannot make money when their profit is $1.00 on a bushel.

Rick Renfro, representing Citizens for Resource Stewardship of Brevard County, requested he be allowed to speak to Item III.B.2, Tree Protection; with Chairman Pritchard responding he can when the Board gets to that item.

Bobbie Bockman, representing Citizens for Resource Stewardship of Brevard, stated she has no working experience in any of those areas, but has experience in seeing how they have been created and how workable or unworkable they are; and her observation is it has been an expensive process for the County to come up with the legislative intent and ordinances, hold workshops, and have discussions by the Board and again at another workshop. She stated there are plenty of people here with working knowledge of the ordinances, development, and agriculture; and she would think there would be an easier way to form those ordinances in the first place rather than dragging them out this long. Ms. Bockman stated staff could have worked together with interested parties to come up with an ordinance to present to the public; it may be an easier and smoother process than doing it the way it was done in the past; it is working out kind of backwards really; and as far as those legislative intents go, she thinks it is critical that they be resolved and worked out; but recommended in the future, they get public input before they are formed and before they go too far. She stated if the Board does not have a list of people who would work with the County, she would be happy to provide one.

Chairman Pritchard advised the Board had a lot of public input on the ordinances; and it might have been a disproportionate share, not as much input from the people directed affected by the ordinances, but there was a lot of public input. Commissioner Carlson advised the legislative intent is to make sure the Board shops the ordinances around, brings them back, re-shops them, and make sure they are not worrying people for no good reason; and the Board does provide a lot of public input opportunities.

Ms. Bockman stated she needs to correct herself; and the way the process works is to get public input, but it seems like none of that public input is considered at the end of the day when it comes back to the Board. She stated there is a list of comments made, but there is no effort to incorporate a lot of those; it is not a two-way conversation on the issues; and someone jots notes of what the comments were, but they do not make any difference in the final product that comes to the Board.

Phil Gornicki with Florida Forestry Association in Tallahassee, advised earlier there was some discussion about best management practices and reference to federal BMPs; the BMPs that the Forestry Association uses for tree farmers are State BMPs; and he has a copy he will give to the Board. He stated it is put out by the Florida Department of Agriculture and Consumer Services, administered through the Division of Forestry; so if at any point the Board references a list of BMPs for forestry, it is the one the Board would want as it is the latest copy. Mr. Gornicki stated he was confused with the discussion on bona fide agriculture versus domestic agriculture; he is not sure he heard that discussion too much before; and inquired, for his clarification, if someone has a 100-acre tree farm and the Property Appraiser granted agricultural exemption on the property, and at some point they are going to remove the trees, does it mean they have to wait three years before that land use could change to development. Mr. Brown stated the silviculture is part of their plan to do the final cut; if it is in accordance with the silviculture plan, then it would not have to wait three years. Mr. Brown stated it is when new lands are coming in for exemption to clear the property for another use; but the tree farm would be under a silviculture permit already so the ordinance would not apply. Mr. Gornicki stated he does not understand the term new lands. Commissioner Scarborough stated if it is an agricultural activity, it does not apply; what it applies to is new land that has never been used for agriculture and someone wants to clear the whole thing; but as soon as it is cleared, they want to start putting in a subdivision; so if it is already in agriculture, it does not apply.

Hugh Evans, representing Forte MaCauley Development, inquired if a person purchases land, has a contract on it for development in three years, and if rezoning is acceptable, where does the process stop; and can they go through the approval process, engineering, etc., and will it stop prior to the development order being issued. He stated it needs to be clarified how far that train goes before the Board stops the process; it could be a year or two years out, depending on how that property is treated; and he agrees with Mr. Smith that palm trees should be defined whether they are in or out in the agricultural area. He stated no one talked about citrus trees and whether they can be cleared under an agricultural exemption; they have a limited life of 30 years or so; they have to be taken out and replanted; and old citrus groves that are on their last legs and qualify for agricultural exemption will be cleared at some point. He inquired if they are considered canopy or non-canopy trees under the ordinance. Mr. Brown stated that will be discussed later because it is one of the issues they are trying to resolve. Mr. Evans stated he would suggest such trees not be canopy trees. Chairman Pritchard stated he considers them a product; and instructed Mr. Brown to reply to Mr. Evans’ other question. Mr. Brown advised when an application comes into their office for agricultural exemption for land clearing, they would put a hold on it until the covenant is released or some provision that says condition upon the elimination of the covenant because they cannot approve the clearing without that issue being addressed; but he does not see a problem if there is a provision in the ordinance to put that caveat in there. Chairman Pritchard inquired if they would be able to go through site plan review and everything prior to the development order; with Ms. Busacca responding staff needs to come back with language so the Board can decide where in that process it would feel comfortable. She stated Mr. Knox may have something if he wants to participate, because they have had issues before of what is a development order under Florida Statutes and when does that exemption kick in.

Chairman Pritchard stated what the Board is trying to prevent is someone coming in, finding a loophole, doing something, saying never mind, and doing something else; and inquired why would it preclude someone from obeying the three-year limit where they have to have agricultural use or not move forward.

Commissioner Carlson stated if they have an agricultural piece of property that comes in for rezoning and there are concept plans laid out, but they do not get the zoning they want so they come in for an agricultural exemption, decide some of the problems they had with the zoning issue they would take care of after they get their agricultural exemption because they can just clear the land; and that is what the Board is trying to prevent, the subterfuge and circumventing the Code for their interest. She stated they are not interested in agriculture; they are interested in developing the land; they do not like what the Code says so they go this way; and that has been a loophole that allowed them to do that. Chairman Pritchard stated they can still do that; they can get an agricultural exemption, clear the land, and not do anything with it for three years. Commissioner Carlson stated they can get the agricultural exemption and clear the land but it would take three years before they can develop it. Chairman Pritchard stated that is what Mr. Evans is saying, can they go through the process short of getting a development order, realizing it is three years out before they can construct anything. Ms. Busacca stated depending on the market or permitting requirements, it may take that long to get a subdivision in the ground. Mr. Evans stated that is his point; they buy one of the two years into the process, start their environmental studies, and who knows what else might happen; and it may take at least two or three years to get to the end of the process. He inquired how far the County will let them go in that process should be defined by some time period.

Chairman Pritchard inquired what would be wrong in allowing the process to go forward; with Commissioner Carlson responding if it is part of the Code, it would not be a problem. Ms. Busacca stated staff wants to clarify it so the Board does not have to have this discussion again. Chairman Pritchard stated his point is if they cannot build on the property for three years, he does not see what is wrong with going through the permitting process. Commissioner Carlson stated the true intent of agricultural exemption is to get a tax exemption and do agricultural endeavors on the property; and if they are planning to develop it and get the agricultural exemption on top of that, they should pay the proper tax on the property before going through the development process. She stated Mr. Knox needs to weigh in on the legitimacy of taking the agricultural exemption if there is no legitimate agricultural intent to farm the land while processing a subdivision plan; and there is a fine line they need to identify and clarify.

Commissioner Voltz stated if the only reason they are getting the agricultural exemption is to clear the property, that is what the Board is trying to prevent; and inquired if they know three years down the road they are going to clear it all for development, why would they not build now and why wait three years. Commissioner Carlson stated they can circumvent the clearing aspect of it. Chairman Pritchard inquired what is it during the three years that the person cannot do. Commissioner Voltz stated if someone buys property knowing the only reason he is going to buy the property is to clear it now and not worry about landscaping and in three years put a new development in, that is what the Board is trying to prevent; and if somebody has property and wants a development, he should develop it now. Commissioner Carlson stated they have to get the proper zoning; if they cannot get the proper zoning, which in some cases occurs, they are left with agricultural so they want to make the best possible benefit of that, get the exemption, and that exemption provides the ability to clear and do whatever they want to do. Commissioner Carlson stated if they do not have the intent to do agriculture, they are just trying to circumvent the process. Chairman Pritchard inquired who is to say what they are going to do; and does the County swear someone to honesty.

Commissioner Scarborough stated it is a misuse of the agricultural exemption; someone can say they want to take the forested area and put a development there; there are certain requirements and methodologies they have to go through; and inquired if some people can say one thing and do another while others are going through the correct process. He stated Ms. Morehead brought up that only one person misused it; most people are going through the right process; they want to take the land that has not been previously used and go through the right process; and inquired if it is fair for someone to run the red light.

Chairman Pritchard inquired when can someone who is going through the process make a decision he or she is not making money on the agricultural endeavor and decide to build a subdivision.

Commissioner Scarborough stated people who have agricultural exemption, may have the land cleared already; and someone who has a piece of property has the option to say he or she wants to do it for agriculture for three years and have it completely clear cut; or he or she can run through the process as required.

Mr. Evans inquired if the Board is talking about agricultural properties that are not exempt now; with Commissioner Carlson responding yes. Mr. Evans stated those are applied for through the Property Appraiser’s office; and inquired if it has to be GU or AU properties and not IU; with Chairman Pritchard responding the Property Appraiser would probably say it has to be AU property. Commissioner Carlson commented it would reflect poorly on the larger agricultural community that actually pursues agricultural endeavors.

Chairman Pritchard inquired if what Commissioner Carlson is saying is if someone has a forested property zoned AU and wants to clear it and have an agricultural endeavor, whether it is plants or animals, she feels they should have to make an effort toward that endeavor during the three-year period before they would be entitled to rezoning; with Commissioner Carlson responding if they get the agricultural exemption, they should pursue agricultural endeavors instead of going off and clearing the land for their other purpose. Ms. Williams stated the Land Clearing Ordinance addresses canopy preservation and tree protection; and when they get an agricultural exemption to clear property for agricultural uses, those requirements do not come into play. Ms. Williams stated if someone comes along three years later and wants to develop it, that property has been cleared totally and they no longer have the canopy and protected trees on the site.

Mr. Brown advised the proposed ordinance only applies to new lands coming in for agricultural exemption; it does not apply to silviculture activity that is currently going on under a conservation plan, bona fide agricultural activities, or domestic agricultural activities as staff will define; and it will be limited to stand of trees in AU or some other zoning that currently does not have a bona fide agricultural activity. He inquired if someone says it is going to take three years to get through the development process anyway, so he is going to declare the agricultural exemption, go through the process in that three-year period, and come out at the end of three years fully utilizing that timeframe, what would the Board have accomplished having the three years if it is the normal amount of time for a major subdivision to occur anyway.

Commissioner Carlson stated they can go in under the agricultural exemption and clear the property prior to going through the Land Development and Land Clearing Regulations; maybe people would not do that, but maybe they would; and maybe they want the exemption to do bona fide agriculture, then come in and say they have a year left, have gone through the process, cleared the land under the exemption, and do not have to go through all the other stuff. Mr. Brown stated on the extreme side of that concept, they could look at getting the agricultural exemption and start to clear and the next day start the rezoning application process before the Board creates the buffer period until a certain date within that three-year window. Commissioner Carlson stated when the issue came up before, her staff got with some of the agricultural folks and developers; and it takes about two years to turn a subdivision around, so three years would be an appropriate number for a buffer time that would prevent some of the misuse of the exemption.

Amanda Elmore with NRM stated there has been a lot of talk about bona fide commercial agricultural uses; of the 80 or so applications she processed over the last couple of years, only two or three were bona fide commercial agricultural uses; and the majority were domestic agricultural applications for pastures. She stated what they are seeing is the property being subdivided and the new parcel coming to one-stop permitting for development, or the property is not subdivided, but they are building a garage instead of pasture. She stated that is happening on a smaller scale and it is not easily recognizable or obvious that the intent is going to be for a subdivision, but those pieces are adding up.

Chairman Pritchard inquired if the Board is through trying to kill a mosquito with a hammer and does it need to simplify this issue and make it clear and understandable; with Ms. Busacca responding staff will return with a clear definition and at that time the Board can debate the issues and determine whether it likes it or not and whether zoning and subdivision processes should be permitted. Chairman Pritchard inquired if this is a precursor for another workshop; with Ms. Busacca responding it would come back for permission to advertise a public hearing and at that time the Board will see the actual language of the ordinance.

Walter Pine of Titusville stated one thing that is a real problem is the lack of definition of many of the terms; and since more than half of the Board is gone, he would like to wait until there is a quorum seated. Chairman Pritchard stated Commissioner Carlson is present. Mr. Pine stated definitions are important for people to know what they are discussing; it is hard for the public to comment if definitions keep changing or are undetermined; so it is important that definitions that the Board does not have be made. He stated one issue the Board is dealing with is like digging a hole in the ocean; it is trying to plug holes in the dam to stop people from doing something when most people are doing it right; the Board is spending thousands of dollars and hours upon hours trying to fix something that most people are doing right; it does not make sense; people can go to the State and get an agricultural exemption; the Board has no authority to change that; and where they have an agricultural exemption, they can clear the land. He stated when they have an agricultural exemption they are also exempt from County Ordinances in regard to that; so any Ordinance the Board makes does not matter to the people who have the exemption; and the Board is doing nothing except for one or two people who might intentionally be trying to subvert the system. He stated the Board is putting upon all the people additional processes, costs, fees, and everything else for an insignificant number of problems; and the appropriate place to handle it, which the Board has an opportunity to do at the Legislative Delegation meeting today, is to ask the State to add to the agricultural exemption that when someone applies for it, it remain agriculture for a period of five, ten, or whatever amount of years the Board wants to attach to it. He stated that would solve all the problems; the Board would not be spending County money or wasting citizens time asking them for more money for permits and fees; so instead of digging a hole in the ocean, it should do the best it can through legislation at the State level and be done with it. He stated everyone has admitted it is only a small portion of the people who have done anything wrong; they do not have data that shows how much land would be significantly affected if the Board puts the ordinance into effect; certain zonings cannot get agricultural exemptions; some are already agriculture; and the Board should get out there, have this studied, and consider if it is spending or wasting money. Mr. Pine stated if it only affects 1% of the property in the County and the Board is spending half a million dollars in workshops and staff time for less than 1% of the people, then it is foolish. He stated the Board needs to see what it impacts first; he heard several admissions today about a small amount of people and probably small amount of land; and inquired if it is so small by the Board’s own admission and fairly insignificant, why is it spending a significant amount of money on it, which does not make sense. He reiterated his suggestion to go to the Delegation meeting and ask them to take up the issue, saying if someone applies for agricultural exemption, that person must remain in that activity for a period of time because they get a benefit of being exempt from taxes; and it would be at no cost to the County.

Chairman Pritchard inquired how many laws are enacted because of 3% or 5% of the population and is every law based on the minority; with County Attorney Scott Knox responding it is a system of reactionary laws. Chairman Pritchard stated years ago when he started with one department, the rules and regulations were the size of a comic book; when he left, they were three inches thick; and it was because no one would accept responsibility or be accountable for what they did; so they had to continuously make people accountable. He stated he understands Mr. Pine’s dilemma and asked that he understand the Board’s dilemma; it is trying to protect the overall situation; and there are always those out there who operate out of the trunks of their cars.

Tree Protection

Sherry Williams advised the Tree Preservation issue deals with the Land Clearing Ordinance where properties are one acre or larger; even after they are developed, they cannot remove trees larger than four inches or clear underbrush on their properties; it prevents people from removing individual trees for the purpose other than development; and they have to have a building permit or some other kind of permit in order to remove trees on their homesteaded property. She stated the Land Clearing Ordinance does not exempt citrus or nonnative trees except exotic species that are listed in the Ordinance, from any tree protection or canopy preservation requirements. She stated the legislative intent is to exempt citrus and nonnative trees; removal of native species would require replacement, but dead or healthy trees in excess of preservation requirements do not require replacement. She stated the Ordinance has an exemption for removal of hazardous trees; there were quite a bit of hazardous trees remaining in Brevard County last year and quite a few people took advantage of that; but those are exempt from the Land Clearing/Tree Protection Ordinance if they are hazards to homes or structures.

Chairman Pritchard stated there was no change on page 3, but page 4 has in excess of preservation thresholds; and inquired why people cannot use nonnative trees for canopy or have a mixed variety of trees. Ms. Elmore stated it is preferable to retain the native communities in Brevard County as they have adapted to the conditions so they are better to preserve; but if the Board wants to consider preserving nonnative trees, staff can go that route.

Ms. Elmore stated the Board should look at the Florida Exotic Pest Plant Council’s list because although there are some trees that may not be considered nonnative invasive plant species, they are considered undesirable and should not be retained on site. She stated the Board could possibly pursue the preservation of nonnative trees with the caveat that they could not be on the Florida Exotic Pest Plant Council’s list. Chairman Pritchard stated that makes sense. Commissioner Carlson stated she assumes that is because they attract specific pests that could infiltrate endemic species. Ms. Elmore stated there are a variety of reasons, either they are on the cusp of becoming a nonnative invasive plant species or other reasons why they were placed on the list.

Mr. Brown stated this could be an opportunity for staff to defer to an existing and scientifically- based listing that does not require codification; and as it changes, the Code could automatically reflect the changes so they do not have to go back into the Code for the list of species. He stated they can remove the list from the Code and reference another list unless there are specific species they want to protect.

Chairman Pritchard inquired if there is a specific definition for what a tree is, as some bushes are cut in tree form and people think they are trees, such as crepe myrtles. Ms. Elmore advised tree means a woody or fibrous perennial plant with one or more upright limbs with a minimum dbh of four inches or some dbh for multi-stem trees, and an average mature height of at least 10 feet. She stated a crepe myrtle would be considered a small tree; there are many different varieties though; and there are some larger than others. She stated ligustrum if it is pruned into tree form would be considered a small tree and staff would give small tree credit for those that are in tree form. Chairman Pritchard inquired about waxed myrtle; with Ms. Elmore responding if they are in tree form, they could be considered a tree, but sometimes they are made into shrubs. Landscape Architect Loren Rapport advised one thing that needs to be recognized when referring to the Florida Exotic Tree list is that ligustrums are on the list as well as some others such as hibiscus and crotons. Chairman Pritchard stated perhaps the list needs to be tweaked; with Mr. Rapport responding there has to be some flexibility; and a lot of times what might be bad growing in South Florida might be fine in Brevard County. Chairman Pritchard recommended Mr. Rapport work with Natural Resources to provide the Board with a list that is truly reflective of what they would consider to be appropriate.

Chairman Pritchard stated paragraph 2 is removal of native trees in excess of the preservation thresholds; and inquired how does the addition in excess of the preservation thresholds comply with the 25% canopy; with Ms. Elmore responding the addition of the language is probably a positive; and if people are already preserving what is required under any circumstance, then any removal in excess of that is reasonable. Chairman Pritchard stated the next item requires 150% of the dbh of a removed tree, and if the removed tree is a protected tree with a dbh of 10 inches or greater, replacement trees must have a minimum of four inches; and inquired why is the requirement 150% and not 100%. He stated if it is for canopy, the tree is going to grow and they will end up with more canopy than they had before. He stated he has gone through some residential neighborhoods; when people buy a house, they are given three oaks and a ligustrum; they put the three oaks about three feet apart; and he does not know what they think the trees are going to do, but if they were trying to provide a canopy equal to what was removed, why is it 150% and not 100%. Ms. Elmore stated the requirement was 100% and was changed to 150% in 2002; and that was before she started with the County so she does not know what the Board’s motivation was at that time and why the threshold was changed. Ms. Busacca advised the Board’s concern was that the mature canopy would take a number of years and they would not get the same biological value today as they would in 30 years similar to investing money; and there is some value for the time it takes for the money to accrue. She stated there is some value in the fact that if they plant a small tree today it may take 30 years before they get that canopy cover; so the Board’s reasoning was if they plant more today, they will see the value of that canopy sooner. Chairman Pritchard stated the problem is it occupied so much space. He stated he planted eight oak trees at whatever the canopy is when they are taken out of a 30-gallon container, and eight yeas later he has a 20 to 30-foot diameter canopy with a height of about 23 feet; and that is from live oaks. He read, “replacement of one ten-inch tree would require the planting of three new trees. Each tree is required to achieve canopy equal to 30% within five years of planting. Tree spacing planting requirements for good urban forest standards is 10 to 15-foot separation. 15% canopy preservation is reasonable.” He stated meeting building and zoning setbacks, ingress/egress, parking, and stormwater requirements for development of a parcel leaves approximately 20% of open space; he does not want to see oak trees under power lines any more and wants to see the appropriate type of plantings located; and if the Board requires 150%, it would be shooting itself in the foot because with the landscaping requirements it has, it may be bunching trees to achieve the 150%. He stated it would make more sense to equal 100% and deal with the Landscape Ordinance.

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

Commissioner Carlson stated she is trying to remember back in 2002, which is quite a challenge, to understand where the Board was going at that time; from examination of the issue and things of that nature, and looking at taking out a substantial tree that has an existing canopy and a lifetime that it existed, that is where the 50% additional came in, to make sure they were getting the equivalency of what was taken out. She inquired if that made sense. She stated if a tree is taken out, from that point on it is not growing any more and not providing canopy; so if they bring in 150%, they get what had already existed; and that timeframe added on to the next 30 years or whatever, is the way they were going with that perspective. She noted it is ridiculous whatever it was.

Chairman Pritchard suggested the Board look at 100% and have staff come back with their version of whether or not it would work. He stated it seems the Board is defeating the purpose by placing the requirement at 150%. Commissioner Carlson stated she would want to qualify it by looking back at the Minutes of 2002 and finding out what was the legitimacy behind it. She stated if that was staff’s identification of the issue and how it could approach it or the Board saying it was good or going by staff’s recommendation, the Board needs to identify that first and bring that back or at least have staff review that and the process. Ms. Elmore stated in the plans she reviewed over the last couple of years, she saw that 150% replacement provides a situation that was burdensome; there is a waiver within the Landscaping Ordinance of tree planting requirements where the site would not support the trees required; the Director could provide a waiver; but they have not seen that instance come up yet. Ms. Elmore stated staff does not want to encourage over planting; so there is a waiver in place. Chairman Pritchard stated working in conjunction with the waiver, staff needs to look at the potential to reduce the requirement to 100%.

Commissioner Scarborough stated this issue is going to be one he would spend some time with; the Board is touching on something with the same species; it might want to put minimal parameters on multiple trees to total up; and inquired if it wants to create the same species with minimal dbh, which will ultimately grow out to be impossible. He stated by allowing this formula to be read with the same species, it is driving the thing; inquired if they have great big oaks and little oaks coming up, how many do they need and how many have to die for some to live; and advised they need to read it over well to see things that may not work and have not been mentioned. He stated the one acre is going to be very difficult to administer; there are a lot of one-acre lots and larger as people’s homesites; and for them to come in and do the calculation is probably silly and burdensome on staff. He stated he doubts someone who lives there is going to do something that would lessen the value of the property he lives on; and since the one-acre is not enforced now and will never be enforced, it is going to mean there are going to be a lot of people who are going to be breaking the law who have no intent other than to have a nice landscaped wooded lot. He stated the same species raises concerns independent of the cumulative number of dbh.

Ms. Williams stated Commissioner Scarborough brought up the homestead property issue; at one time staff talked about exempting five acres from the Land Clearing Ordinance; and there is a Comprehensive Plan policy that allows exemption up to 2.5 acres, so it would not require a change in the Comprehensive Plan.

Luke Miorelli, representing M. E. Construction, stated he is a commercial contractor and engineer and wants to address the ordinance as it impacts commercial and industrial development. He stated most parcels he deals with are five acres or less; some are one acre; it is extremely difficult; and his suggestion is to scrap the whole thing. He stated the problem that comes up is that although Natural Resources did a tremendous job coming up with an ordinance that would save trees and allow canopy to be saved, they did not discuss it with the Traffic, Stormwater, Transportation, and Fire Rescue Departments, and all the people who would be involved. He stated a one-acre site with a 60-inch oak tree and giant spread sitting in the middle of the lot cannot be developed to put an office in there; he has to provide for garbage trucks to come in, which means he has to cut all the lower limbs off the tree, so he would not be able to save any canopy; and he has to provide for fire trucks to be able to turn around on the site. He stated those items have to have a minimum of 14 feet clearance in the driveway; his driveway has 24 feet; the Traffic staff said he has to have circulation and cannot have a dead-end drive so he has to move the stuff or else; and inquired how would he be able to save the tree. Mr. Miorelli stated he cannot vary the size of the parking spaces because someone in another Department will not allow him to do that; so it adds up to not being able to develop the site. He stated if the intent is to have more trees, prior to the ordinance, they said they needed 240 points per acre; they provided it in a certain manner; and if they want more trees, that could be increased to 320 points or 480 points to give them something they can work with. Mr. Miorelli stated they were told they needed to add trees and canopy; they have a retention pond and a dry swale area to put them in; cypress or maple are hardwood trees and comply with the ordinance; but Stormwater said they cannot put the trees in the retention pond because they take up volume and drop leaves that clog the pond; so they have a one-acre commercial site along Wickham Road that they cannot use. He stated they are willing to put the trees in and have one site that has four existing trees on it; staff is right on how it is interpreting the Ordinance, but there are four existing trees that the owners put in because they wanted to make their property look better; and they put them in the area where the site plan called for a future building to be put in. He stated now they are coming in to put the building in and there is a new tree Ordinance; they have to do a several thousand-dollar study to show that they are already following the Ordinance and their plans clearly show they are putting in 18 new trees at 2.5 inch dbh to replace four 4-inch dbh trees; but they have to go through the process to do it; and it is ridiculous. Mr. Miorelli stated it is well intentioned but was not coordinated with all the requirements placed on developers for commercial and industrial sites; a giant laurel oak lives 50 years; a palm tree cannot be found less than 10 inches in diameter; if the site plan says remove and relocate a palm tree, he reads it to mean tear it out and bring in a new one because it is cheaper and more efficient; and the palm tree has a better chance of living if it is a new one, but they cannot do that. He stated the latest is they are going to replace a larger tree with a 4-inch dbh tree; they would put in more mature trees but they are not available; people who sell trees when they reach 30-gallon size, they are not going to wait a couple more years until they reach 65-gallon size; so they are not available. He stated with the amount of construction going on around the State, it is great to put it in the Ordinance but nobody can comply; and he does not think that is the intent of what everyone is trying to do. He suggested going back to the point system for commercial and industrial sites; and commented $12,000 for a tree survey could buy a lot of trees.

Chairman Pritchard stated Mr. Miorelli’s comments are appropriate, relevant, and significant; what the County has done is create ways so they cannot do anything; they need to look at it and create ways so people can do something; and inquired how would they get trucks in and out and accomplish what any other commercial site would be able to accomplish when the size of the site and requirements imposed prohibit utilization of the site. He inquired how can they allow the development of a parcel and enhance it with appropriate landscaping, and is that something staff can address and get back to the Board as part of the process it is undergoing. Ms. Busacca advised the canopy requirements were generated by a Board interested in heat islands; and that is what started the Canopy Ordinance. She stated the Board had the concern, and that is what it was intended to address.

Commissioner Carlson stated she brought up the heat island issue; she understands the perspective of the last speaker in terms of the common sense approach and coordinating with other Departments, but she would like to see the trees pulled away from the perimeter of the property and put into parking areas where there is a lot of heat that causes the heat island problem. She stated people focus on where the trees are; it sounded like a good idea when she brought it up; but there are consequences to every idea. She stated she would like to see Stormwater provide some flexibility with allowing trees in stormwater retention areas to reduce the disturbance of the natural habitat; they would not have to dig big holes if they could preserve naturally absorbing lands onsite instead of clear cutting; so there needs to be some tweaking in terms of parking requirements to integrate trees in the parking areas and make it a requirement rather than around the perimeter to take care of the heat island issue, and also to work with Stormwater to allow trees especially in dry retention areas. She stated they have a perfect example at Suntree Boulevard and Wickham Road where they have cypress growing out of the retention area along the roadside; and she does not know where they came from, but it works fine. Ms. Busacca stated the engineers can tell the Board the difference in reduction of capacity and maintenance issues when it comes to making sure there is sufficient stormwater storage capacity; and that is the trade off, but staff will work on that. Commissioner Carlson inquired if there have been studies on stormwater that would preserve existing vegetation that would absorb the stormwater instead of digging a bigger hole that reduces canopy. Ms. Busacca stated she is not an engineer but understands the high water table makes some of that very difficult.

The meeting recessed at 10:50 a.m. and reconvened at 11:01 a.m.

Chairman Pritchard advised he has several speaker cards; and suggested scheduling part 2 of the workshop for next week if it is convenient for the Board. Ms. Busacca advised the Board has workshops scheduled for next week on the jail at 9:00 a.m. and strategic planning at 1:00 p.m. She stated if the Board wants to move the strategic planning workshop to another date, staff can do that. Chairman Pritchard agreed with moving the strategic planning workshop. Ms. Busacca advised there is an item on the agenda dealing with EELS and whether or not the synopsis of that is correct; and staff can move that to January 25th, which would further reduce the time today. Chairman Pritchard stated that would be fine; and inquired about offsite mitigation. Ms. Busacca stated the Board specifically tabled Mr. Ferraro’s request to this workshop. Chairman Pritchard inquired if it can be tabled again; with Commissioner Carlson responding it will require the Board to have the conversation it is not going to have today, so it does not have a lot of choice but to do that.

Chairman Pritchard advised Mr. Ferraro that the Board has a dilemma as it would not get to discuss the issue that would put it in the position of being able to discuss his issue today. Carmine Ferraro stated it started on January 11, 2005; he was hopeful the Board would address it because of his deadline in terms of having to buy the amount of trees and landscaping to be in the betterment plan; so he is hoping for the answer today and was given that assurance. He stated he has other comments he would like to make on the issue but does not think it is going to be resolved today; it is a great first step; but they need to bring other departments in, coordinate some committees where people can work it through and bring back good productive suggestions to the Board. He stated he would prefer the Board go to his issue today because he was given that guarantee and maybe table further discussion on workshop items. Chairman Pritchard inquired why is Mr. Ferraro's issue of such importance; with Mr. Ferraro responding he got into betterment plans and has to commit to buy trees and landscaping to meet the betterment plans; he is looking at 300% more in costs than he would normally have; and he has been told by his planner that he would have to sign a waiver for him because the trees are going to be too close together and he is not giving any guarantees that they will survive. He stated when he goes into his landscape bonding period, he will be looking at 50% or higher percentage of those trees may have to be replaced within a period of one year; his suggestion to the Board was to be given some immediate relief because of the burdens he is under; and knowing there is a bigger answer, he would be willing to pay for that relief right now so that he is not just throwing bad money out there for planting and replacing trees that he was told would not survive. He stated there is a shortage of trees, scheduling, and contractual deadlines; and that is why he is asking for some decision. Ms. Elmore stated a resolution for Mr. Ferraro is to post a performance bond for planting of the materials. She stated in certain instances where an owner cannot plant the materials immediately due to financial constraints or whatever, he can post the performance bond for 125% of the cost of the materials for a period of time. She stated that could possibly work out and hopefully by the time the bond expires, they would have a resolution. Mr. Ferraro inquired if he posts a performance bond, would he not be required to plant the trees for canopy preservation but just the normal amount of landscaping; with Ms. Elmore responding he can post the bond for the entire landscape package. Mr. Ferraro stated he wants to plant some of the trees for aesthetics; and inquired if he can break that down to plant the normal trees so that would be 125% of the cost of the remaining trees; with Ms. Elmore responding his bonding agency would be paid a percentage and would guarantee the bond. Mr. Ferraro stated that would be acceptable.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize Carmine Ferraro to post a performance bond at 125% of the cost of landscaping, etc. as an interim step until the Board decides on canopy requirements and other related issues.

Commissioner Scarborough stated there was another element; Mr. Ferraro came in and wanted to bring in an environmental element that was totally separate; and Mr. Rapport told him in Cocoa Beach there is a means for people to pay in for canopy within proximity if they have a problem on their site. Mr. Rapport stated yes, if the site or the environment cannot support everything that is required by the Landscape Code. Commissioner Scarborough stated it would basically shift a concept of value of trees to an environmental element; and inquired what is the proximity to the site; with Mr. Rapport responding he does not know. Commissioner Scarborough inquired if it is an option for Mr. Ferraro; and stated if it is a viable option, the Board can look to one of the municipalities for the history. He inquired if by doing the bond the Board is precluding that discussion; with Commissioner Carlson responding no, that may be coming up in discussions of having some urban forestry program or something where they can pay or identify where the trees might go, which would better the community as a whole. Commissioner Scarborough stated if the site is problematic, people in the area would have something there but not on the site.

Commissioner Colon stated she has not heard about the proximity issue but it makes sense, so she is interested in getting information on that. She stated where the Board is going today is fair, but she is concerned for those who are in the same position as Mr. Ferraro; he knows the process and has been before the Board on other issues and is savvy enough to come to the Board; and inquired what about other people in similar positions who are not aware mercy is being given here; and is the Board going to allow the same opportunity to take place for them. Commissioner Scarborough stated he hopes the Board will create the methodology like the City of Cocoa Beach and allow people to move to other options; the Board is going to address all those things, but at the end of the day there are going to be sites where it will not work; and if it has a means of working it through with developers, it may be one option the Board can look at.

Ms. Busacca inquired if the performance bond would be an interim step until the issues are hashed out by the Board; with Commissioner Colon responding every situation is unique; she does not want those that are simple to take advantage of it; Mr. Ferraro has a unique situation; but she wants to make sure at the time direction is given, it does not tie the hands of staff.

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

Don Smith representing Wuesthoff HealthSystems, advised they have the same situation as Mr. Ferraro; with Chairman Pritchard responding the Board has covered the situation. Mr. Smith inquired if they are included; with Chairman Pritchard responding he does not see why not.

Mr. Brown advise the situation of Mr. Ferraro would be a circumstance where the current application of the Ordinance is not deemed viable; and he goes to a betterment plan, and the betterment plan does not work. Commissioner Scarborough stated they can come in and say they want to post 125% bond and see how it washes out later with the Board’s discussion. Commissioner Carlson stated however they are not free to go ahead. Mr. Brown stated that is setting aside the entire Ordinance until the discussion is resolved; and what that does is allow them to move forward with their site plans and development without the foreknowledge of what the outcome of it is, which may create site restrictions and constraints that would prohibit them from implementing the Ordinance as agreed upon by the Board. He stated the way to avoid that is when projects come in, allow them to be evaluated on the existing process; and if the application of the Ordinance does not fit, then the third tier of solution is to apply the bond and implement what the Board can under the betterment plan; and then the bond would be to deal with the other things such as arbor funds, offsite mitigation, aesthetics, etc. He stated he would be hesitant to say when they walk in the door whether it be tree protection, land clearing, tree canopy, or landscaping, to put a bond up and build because then there is no assisting citizens on where those boundaries are; and those are his cautions. Commissioner Carlson stated that was the intent of her motion.

Commissioner Scarborough stated that is what the Board did for Mr. Ferraro. Mr. Brown stated when the Ordinance and betterment plan did not work, Mr. Ferraro worked hard with staff to make it happen; now he is at the wall and his time is very critical; so the Board could allow him to bond and put in something real close and deal with the fallout later. Mr. Brown stated his concern is someone walking in with 48 acres, does not want to do the Ordinance or betterment plan, and posts a bond. Ms. Elmore stated Mr. Ferraro has an approved betterment plan so she can calculate 125% of the plants that were approved; however, if someone is not in the process and has not agreed to a plant list, there is no way to calculate the bond amount. She stated staff has to come to some sort of resolution of what is required; and an approved betterment plan is necessary before a bond can be determined.

Mr. Smith stated they submitted a betterment plan that was approved years ago and resubmitted it; but it needs changes because the Code changed. He stated the trees will not fit on the site, but there is County land that abuts their property; and they would be more than happy to make pretty whatever is needed for offsite mitigation. Chairman Pritchard suggested Mr. Smith meet with Ms. Elmore to resolve the issue.

Chairman Pritchard stated the Board is going to have Phase 2 of this workshop next week; this is scheduled to run to 11:30 a.m., but they can stretch it to 11:45; however, the Board would not be able to hear everybody by that time, and those they do not get through will begin next Thursday at 1:00 p.m.

Don Simms, representing Falcon Development, advised they own Wickham Business Park, which is comprised of 42 units; the complex has small businesses that provide incubator and entrepreneurial space; all are hardworking tax paying businesses; and they could not have developed the much-needed complex under today’s County Ordinances. He stated they were the first industrial business to ever win a Keep Brevard Beautiful award; they have developed in Indian River, Brevard, and Volusia Counties; and none have the canopy tree preservation requirements that Brevard County does. He stated to list pines and palms as must save trees is out of touch with reality; other counties do insist that a developer submit a betterment plan and must replant the type, size, and quantities of trees acceptable to the county; and when they develop a project, they are required by the Army Corps of Engineers and St. Johns River Water Management District to bring the property to a level designated by them to remove developments from flood zones. Mr. Simms stated he agrees with that process as it protects homes and businesses from flooding; but it flies in the face of the County Ordinances when the above agencies’ requirements are met and actually guarantees the death of the very canopy and trees the Board is trying to save. He stated if the Board wants to save trees, it should implement a betterment plant that allows the developer to provide a landscape design that would allow new plantings and landscaping to be better located within the project; and it would be a more viable tree and landscape concept and a win/win situation for the County and landowner. He suggested the Board go back to the point system and let them work together toward a common goal and use a common sense approach to achieve that goal.

Richard Kern of Melbourne stated he is a civil engineer and had the misfortune to work with the tree preservation and canopy protection Ordinances for the last couple of years on a very detailed basis; and it is enormously difficult to try and meet all requirements imposed by the various government agencies and comply with the tree replacement and canopy protection provisions of the Ordinances. Mr. Kern stated he wants to stress to the Board that it get strong input from the development community, even beyond what it has now, when writing or rewriting the Code; it should have professional engineers, landscape architects, and land planners to work with County staff on the details of Code revisions because it is one thing to put in the Code, but until they actually apply it to real life situations and site plans, which they do every day, they do not really understand all the ramifications of the Code. He strongly urged the Board to give a small group of professionals the opportunity to work with staff on Code revisions because without that they may still continue to have a bad Code. He stated the tree canopy Code is filled with many problems; the tree replacement criteria of 150% is a burdensome amount; and by the time he takes the tree canopy preservation and mixes that with the tree replacement requirements, he cannot fit all the trees on the site. He stated they have to plant trees five feet apart; it is unreasonable to try and get waivers or betterment plans to make it work; the Board needs a Code that works; and they should not have to go through a waiver process or betterment plan process to make the site work. He stated the Board needs a Code that is easy to understand, easy to apply, and easy to interpret; he has seen staff interpretations change literally a dozen times; and when staff changes and different staff takes their place, the interpretations of the Code changes also; he has seen it happen numerous times; and it is a serious problem. He stated they need a good Code to work with; and that is what he encourages the Board to try and adopt.

Robert Lee of Indialantic stated initially the canopy provision, which is a simple one sentence, slipped under the radar; there were a lot of Codes being passed at that time and he did not find it until it appeared in the Code; and there have been a lot of problems with the application and interpretation. He stated they should have a Code change rather than work on a betterment plan process; the Code should work for everybody; and the way the Code reads now it benefits previously cleared properties and burdens heavily treed properties. He stated a lot of people planted trees on their properties to beautify them and now it is coming back to bite them; the canopy Code starts off with a problem in the definition; the definition is not in the section that mentions the canopy; and it is defined to be the highest cover that exists, and should be revised to be mature hardwood trees only. He stated palm trees are readily available and can be relocated; pine and flatwoods do not accept great changes so already there are a lot of problems with subdivisions. He stated they have a high water table problem; pine trees do not handle construction traffic nearby; and if the canopy provisions are to remain, they should permit preservation, relocation, transplanting, planting along the site, and offsite mitigation.

Charles Moehle, President of Modern, Inc., stated a lot of good points have been made, but he would like to talk about the agricultural exemption again; and the discussion took a great deal of time, but he does not think there is an understanding how they get agricultural exemptions. He stated they cannot get an agricultural exemption with any kind of zoning unless they demonstrate they are in the business; that means they have to spend a bunch of money to be in the business; so the discussion is looking at what he considers a boogie man because it is not there. He stated palm trees and wax myrtles need to have consideration and go into all three Ordinances; palms are a product; they have been harvesting palms for over 15 years; and they have to have a permit to do that. Mr. Moehle stated they get an agricultural inspection every two months; so it is regulated as a product. He stated they ship palms to New York City, Texas, South Carolina, and all over the State of Florida; Florida Department of Transportation is using palms along the roadways; so they have a specific consideration in all three Ordinances and should be addressed, and so should waxed myrtles, which is another product they harvest. He stated in some part of their business they are considered a nuisance or weed; it is the same with palms; but they deserve consideration depending on the types, species, and appropriateness in all there categories. He stated palms withstood the hurricanes; the landscaping at Viera used a lot of palms; there is nothing wrong with them; the cabbage palm is the State tree; and it is maintenance free and does not cause problems. Mr. Moehle stated as for planting 150% of trees, from a practical standpoint, it is easier to get a permit rather than waste the money to comply and get a waiver; and the process needs to be simplified. He stated the present Ordinance creates a thought process for people to start preparing for the future and promotes killing trees that they may have planted because they cannot use their land; and there should be a process that promotes the interim good looks and allows people to adjust their lands and replace trees. He stated oak trees that are 50 or 60 years old should be replaced; that is where oak comes for barbecues and firewood; it is a product; and the older trees do not even make good products because they are deteriorated inside. He stated oaks are subject to winds and are always falling down; the Code has become very complicated and unworkable; and the Board should consider offsite mitigation because it can get out of hand and become an extortion effort. He stated offsite mitigation should be done reasonably and around the site; the Codes are not practical; and several people said the Board needs to trash them and start over instead of trying to rework them.

Rochelle Lawandales stated it is refreshing to hear everybody working towards the themes of flexibility, common sense applications, and maybe fair and balanced; Commissioner Carlson’s point about heat islands, not have soldiers standing in a row around the perimeter of a piece of property, but integrating them, making nice clusters, and reducing some heat effects of parking lots and other paved areas is a critical issue; and that goes back to flexibility and speaks to the point of allowing staff to work with the development community to come up with plans that are going to be enhancements and add value as well as meet the overall intent of the Code. Ms. Lawandales stated the County needs to start over; and advocated exempting redevelopment and infill sites. She stated they are of particular interest to her and a big part of her practice; there are points in Chairman Pritchard’s and staff’s materials about exempting commercial, industrial, and redevelopment sites; and she would like to add infill sites that will encourage economic development, improve the tax base, and help in doing what the Board wants, which is to implement smart growth principles, preserve some drainage fields, and direct development into areas where there is already compact development as well as good infrastructure. She stated those are points she wants to leave with the Board and ask that it continue on the path of giving staff the flexibility to do some of those things, exempt certain areas, and reduce some of the percentages. She stated she would volunteer if the Board decides to set up any committees to participate in the overall process.

Jan Jacobson of Ochopee, Florida stated it appears the Board has a regulatory mechanism that may have gone beyond legitimate government purpose and has gotten a bit out of hand where it is allowing subordinates to attempt to carefully centrally plan what would be planted all the way down to the type of species. He stated the Board is losing one of the major assets in its community, which is the advantage of widely dispersed decentralized decision-making. He stated a gentleman brought up that he was not allowed to plant cypress in a water catchment area; he found it astounding as a biologist because the description of a cypress is that it grows in wet areas; there are a variety of cypress that grow as much as an inch a year dbh; and trees with most of those capabilities are not available on the market. Mr. Jacobson stated he cored an oak tree in the Panhandle which had rings that were three-quarters of an inch apart, so that tree was growing at an inch and a half a year; and it is possible to look around and find a technical fix if they need cover in a hurry rather than allow slow growing trees because there are much faster growing trees available. He stated the more the Board relies on staff to come up with a general plan that will cover everything, the more it is unduly burdening the citizens and the staff; and if it expects staff to come up with a central plan that will solve all situations, it might ask if they are able to walk on water because that would be asking more than they are paid for.

Brad Smith, representing Brad Smith Associates, Inc., stated he has much to say on canopy protection and betterment plans and will hold that until next week and limit his comments to tree removal; he owns an acre and an eighth and has a large pine tree under which is growing a laurel oak; the laurel oak was becoming one sided; so he cut the pine tree down to manage the oak tree. He stated if he lived in the County, that would have been illegal; something is wrong with that; and recommended the Board increase the threshold to greater than five acres for tree removal permits on residential properties.

Bobbie Bockman, representing Citizens for Resources Stewardship of Brevard, stated she read a statement from Rick Renfro; and the point he wanted to make is if people are tempted to circumvent the process, it might be because they feel the County is trying to circumvent development process by using the specific Codes as a way to fight the normal customary development of property. She stated he suggested the Board consider the tree Code that Messrs. Miorelli, Kern, and Leo suggested up to a percentage of the site and also preserve, relocate, replace, and mitigate.

Jack Ippel of Melbourne stated a while back there was going to be a consolidation of all the environmental Ordinances, and the County Attorney was going to review everything and the meeting where it was going to be done was in January where all was going to be wrapped together; but it does not seem to be further along that it was before. He stated he went to the first public hearing on the betterment plan, canopy, and all that kind of stuff, which was enlightening; the Department wanted to hear what the people had to say; there were no real answers to questions that were raised; and he asked what could be planted to add that coverage in five years; and the only thing that the environmental people could think of was Brazilian peppers and melaleuca, so it was not even possible to comply to provide that type of covering in five years. He stated he brought up the cost; he is a realtor and works with small business people; when he brought up the cost of the tree surveys, the Board was surprised to find out it was $12,000; and it can exceed that. Mr. Ippel stated he has a client who bought .92 acre in the industrial area of the County and paid $70,000 for the lot; he and his mother are in the process of trying to figure out how they are going to do it; and it looks like they will have to sell the land and give up their dream because of what the County is doing. He stated the Department came up with the SEAS ordinance and the betterment Ordinance and decided to have narrower streets and less parking spaces; they never talked to the Planning and Zoning Board because they do not have the authority to do that; and if the Board takes a 40,000 square-foot building and reduces the parking for physician offices that requires one parking space for every 175 square feet, it has eliminated the value of the building. He stated it is apparent that they have not talked to other departments and not listened to the people who talked to them; they are no farther along today than they were months ago; and some of the things that are dreamed up ought to have some financial impact addressed. He stated one of the engineers, during the break, said Commissioners ought to find a developer doing a small site and sit through the process to see how onerous it is and the costs involved to really have an idea of how they are impacting people’s ability to own real estate and grow their businesses. He noted it is the small businesses that create the majority of jobs.

Jonnie Swann of Merritt Island stated she disagrees with Mr. Moehle and thinks there is a boogie man; and it started in Titusville when the boogie man was clearing the Enchanted Forest in the 1980’s. She stated that is what started the Ordinance; they worked with a lot of people, including landscapers, clearers, and Margaret Hames; little by little people were arguing about it; and every time somebody argued about it, they had to get a new ordinance hearing. She stated another thing that happened is the County kept adding more and more things that it wanted to keep cleared for utilities and things like that; now they are having to fill lots; it is impossible to build; they need more coordination with the St. Johns River Water Management District so they are not going to have holes in the asphalt; and the St. Johns River Water Management District staff told her they felt there were a lot of times they could plant trees like cypress that provides water retention and water cleaning rather than digging a hole that gets disgusting and has to be fenced off. Ms. Swann stated other counties all over the State do it; they do tree wells; somehow the counties are not talking to each other; and people are going in there clearing and filling because it is easier. She stated the County needs to be accountable for that and to put a stop to it by working with the St. Johns River Water Management District and developers, architects, and landscape architects before they do their drawings and go in there and clear the land. She stated it should not be so burdensome that nobody can understand it; it did not used to be and does not have to be; other counties are doing it and they are beautiful; they are saving canopy trees; and if the Board had the experts talking, it should be a lot easier than it is now. She stated the way it is going now, it is the County and State that is denuding the County, not the developers; the Board has to stop it; it is its responsibility; and waiving everything is not going to do it. She stated the whole County is going to look like Fort Lauderdale instead of having what they have in Pinellas County where she is from.

Hugh Evans, Jr. stated the Board ought to address increasing the one acre to five acres; he has several subdivisions he is developing; they have deed restrictions and are platted with 25 to 40% natural vegetation already; and it would help to limit administration for the County. Mr. Evans stated the County would have a nightmare if it is one acre.

ANNOUNCEMENT

Chairman Pritchard announced that Part II of the workshop will continue on January 27, 2005, at 1:00 p.m.

The meeting adjourned at 11:45 a.m.

ATTEST: ________________________________
RON PRITCHARD, D.P.A., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

____________________
SCOTT ELLIS, CLERK

(S E A L)