MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

March 5, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 5, 2009 at 5:02 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Assistant County Manager Mel Scott, and County Attorney Scott Knox.   

 

 

 

The Board of County Commissioners acts as a Quasi Judicial body when it hears requests for rezonings and Conditional Use Permits.  Applicants must provide competent substantial evidence establishing facts, or expert witness testimony showing that the request meets the Zoning Code and the Comprehensive Plan criteria.  Opponents must also testify as to facts, or provide expert testimony; whether they like, or dislike, a request is not competent evidence.  The Board must then decide whether the evidence demonstrates consistency and compatibility with the Comprehensive Plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area.  The Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit request before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity, with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal.  Other speakers are allowed five minutes to speak.  Speakers may not pass their time to someone else in order to give that person more time to speak. 

 

 

The Invocation was given by Reverend Russell Frahm, Faith Lutheran Church, Merritt Island, Florida.

 

Commissioner Trudie Infantini led the assembly in the Pledge of Allegiance. 

 

 

 

Assistant County Manager Mel Scott stated for the last two years the Board has been vocal in its opposition to developments that came about as a result of the Florida’s Consumer Choice Act of 2007, which effectively enabled Bright House Networks to move the government access channel outside the basic cable portion of television; and those who had basic cable now have to purchase a converter box to be able to access those  kinds of  public  access  programs.   He stated it came to his attention last week that the County again has the ability to weigh in on the issue; and if the Board so chooses, staff will prepare a letter for the Chairman’s signature.  He  advised there is a case being considered by the FCC,  and there is a deadline  of March 9, 2009 to send comments related to the Florida Consumer Choice Act of 2007; and if the Board desires to weigh in again on its opposition of moving the access to a non-basic cable channel, staff would be happy to draft a letter. 

 

Chairman Nelson stated from his perspective, government television should be in the lowest basic tier available from the cable company because it handles emergency management notices, election results, and other things that are primary to the citizens and their well being; and he is supportive of a letter to have that done where the FEC changes the law to require them to be in the basic level.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to authorize the Chairman to sign a letter to the Federal Communications Commission requesting it preserve public, education, and government (PEG) channels as they have always been provided.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve scheduling Executive Session for Security System Plans relating to County property at 8:30 a.m. before the March 10, 2009 Board meeting.  Motion carried and ordered unanimously.

 

 

 

Commissioner Fisher stated he held a luncheon in his office for the Constitutional Officers; stated Sheriff Jack Parker, Tax Collector Lisa Cullen, Supervisor of Elections Lori Scott, Court Administrator Mark Van Bever, Judge John Harris, Circuit Court, Clerk of Courts Scott Ellis, Assistant State Attorney Wayne Holmes, Public Defender James Russo, School Board Member Robert Jordan, and Interim County Manager Stockton Whitten attended; and Property Appraiser Jim Ford was not able to make it, but he was able to have lunch with him today.  He stated there was some open and honest discussions about where the County is; part of the reason for the luncheon was for him to build a relationship with some of the Officers; another reason is he wanted everyone to understand that they are all on the same team; and he thought it was important to for the Constitutional Officers to understand where the County is coming from, from a finance standpoint and the challenges being faced.  He stated there was good dialogue; he thinks everyone left with the feeling that they are all on the same team; and he would like to thank all that attended. 

 

 

 

Commissioner Bolin advised she was able to go along with Chairman Nelson and another Commissioner to Space Day in Tallahassee; and they worked hard with all the Legislators to express to them the situation in Brevard County.  She stated it was wonderful to have industry from all over the State of Florida and other elected officials, and people present from Space Florida; and it was a very productive day.

 

Chairman Nelson stated it was a good opportunity to listen to the Lieutenant Governor talk about space; and it was a good group that understands the task at hand. 

 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve scheduling an executive (closed) session with the Interim County Manager and appropriate staff to discuss ongoing collective bargaining negotiations for the Laborer’s International Union (LIU), Local 678, to be held at the end of the regular Board meeting on March 10, 2009.  Motion carried and ordered unanimously.

 

 

Chairman Nelson called for the public hearing to consider the recommendations of the Planning and Zoning Board of February 9, 2009; and the North Merritt Island Special District Board of February 12, 2009 as follows:

Item V.B.1. (Z0902401) – Sawgrass Land Development Company’s request for a CUP for Land Alteration and an amendment to an existing Binding Development Plan in an RU-1-13 zoning classification on 101.74 acres, located on the north side of Pineda Causeway, west of Wickham Road, which was tabled by the Planning and Zoning Board to the March 9, 2009 P&Z meeting. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to table Item V.B.1., to the April 9, 2009 Commission meeting, as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.2. (Z0902402) – EPH320, LLC requests a CUP for a Commercial/Recreational Marina, and a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 4.42 acres, located east of U.S. 1, south of Allen Hill Avenue, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve Item V.B.2. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.3. (Z0902101) – Cheryl Lawson & Henry Young, Trustees; and Robynne Hester’s request for a change from AU to RU-2-4 on 2.38 acres, located east of Harry T. Moore Avenue, north of Cuyler Street, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.3. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.4. (Z0902102) – Evette V. McDonald’s request for a change from AU to RU-2-24 on 0.62 acre, located west of Harry T. Moore Avenue, north of Cuyler Street, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Item V.B.4. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.5. (Z0902301) – Guillermo & Marjorie D. Altonaga’s request for a CUP for a Private Boat Dock accessory to an adjacent single-family residential lot, with a waiver from the required 30-foot of water frontage, and a waiver from the required 7.5-foot side setbacks on both sides; property is zoned RU-1-13 on 0.03 acre, located north of Ross Avenue, west of Seiler Street, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.5. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.6. (Z0902302) – Thanos P. Poulos’ request for a CUP for a Private Boat Dock accessory to an adjacent single-family residential lot, with a waiver from the requirement that the residential lot of record be within 1,000 feet of the dock parcel, and a waiver from the required 7.5-foot side setback on the east side; property is zoned RU-1-13 on 0.08 acre, located south of Ross Avenue, west of Seiler Street, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.6. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.7. (Z0902303) – Ricardo M. & Maureen M. Gotay’s request for a CUP for a Private Boat Dock accessory to an adjacent single-family residential lot, with a waiver from the required 7.5-foot setback on the east side; property is zoned RU-1-13 on 0.01 acre, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve Item V.B.7. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.8. (Z0902304) – Alan G. & Karen L. Harbach’s request for a Private Boat Dock accessory to an adjacent single-family residential lot, with a waiver to the required 30-foot of water frontage, and a waiver to the required 7.5-foot setback on both sides; property is zoned RU-1-13 on 0.01 acre, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to approve Item V.B.8. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.2. (Z0902402) – EPH320, LLC’s request for a CUP for a Commercial/Recreational Marina, and a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 4.42 acres, located east of U.S. 1, south of Allen Hill Avenue, which was recommended for approval by the Planning and Zoning Board.  (CONTINUED)

 

Chairman Nelson stated he agrees with the CUP for a marina, but he would like it conditional upon a restaurant use only so that it does not turn into a bar, or some other type of use; and inquired if Commissioner Bolin would consider rescinding the first motion to add that condition.

 

Commissioner Bolin noted the applicants have already left the meeting; and she will not agree to rescind the first vote.

 

Chairman Nelson inquired of Jack Wise, representing the applicant, if his client would have any concerns about putting a condition on their approval that the Alcoholic Beverages for On-Premises Consumption be for restaurant use only.  Mr. Wise stated his client would not object to the condition.

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to reconsider Item V.B.2.  Motion carried and ordered unanimously.

 

 

Vice Chairman Bolin passed the gavel back to Chairman Nelson.

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to approve Item V.B.2., limited to restaurant use only.  Motion carried and ordered unanimously.

 

 

Item V.B.9. (NMI81002) – The Bluffs Development Corporation’s request for a change from GU to AU, as amended by the applicant at the North Merritt Island Board meeting on October 16, 2008, on 30 acres, located south of Pine Island Road, west of Preserve Pointe Drive, which was recommended for approval with a Binding Development Plan to not utilize the Open Space Ordinance, by the North Merritt Island Dependent Special District Board. 

 

Doug Robertson, representing the applicant, advised there are two conditions his client will agree to be placed on the request.  He noted the first condition is to limit the number of residential units on the site to 12; in addition, to restrict the north 100 feet of the property adjacent to Pine Island Road to only allow the access to the subdivision, and no other impervious surface; and his client will agree to both of those conditions.

 

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to approve Item V.B.9., as recommended by the North Merritt Island Dependent Special District Board, and to limit the number of residential units on the site to 12; and to restrict the north 100 feet of the property adjacent to Pine Island Road to only allow the access to the subdivision, and no other impervious surface.  Motion carried and ordered unanimously.

 

 

Vice Chairman Bolin passed the gavel back to Chairman Nelson. 

 

Chairman Nelson advised the conditions will be in the Binding Development Plan. 

 

Commissioner Infantini stated she has a question regarding point of order; and it is her understanding that each Commissioner is allowed to appoint two members and one alternate to the Planning and Zoning Board.  She stated she thought the Commissioner’s two members would serve, and should one of them not be present to serve, then the alternate would serve; but upon reading the minutes, she is seeing that the alternates and members are serving and voting; and she thought an alternate was to be used in lieu of a regular member.

 

Zoning Manager Rick Enos advised often times, even when both regular members are present, an alternate will vote if another district has a member absent; and staff will fill out the board with 11 voting members to include alternates if others are missing.  Commissioner Infantini inquired if that has to be done, as it kind of stacks the deck; she has not appointed an alternate; it makes it to where there is an overly biased board; and she would prefer not to have anyone step in and vote for her member if he or she is not present.  She inquired why have alternate members if they are going to act as regular voting members; and in the  particular cases that have occurred, there were only one or two regular members not present, and there were at least three alternates who were voting.  Mr. Enos stated the Board can establish that by policy if it wishes. Commissioner Anderson stated he understands Commissioner Infantini to say she only wants the alternates to serve in the district in which they were appointed.  Commissioner Infantini stated that is correct; if there was not a quorum, then that would be different; but as long as there is a quorum, she does not want someone from another district sitting as her alternate. 

 

Planning and Zoning Director, Robin Sobrino, advised a situation such as that only happens when there is a quorum issue.  Commissioner Infantini stated she wanted it put on the record because the minutes did not seem to indicate that.  Chairman Nelson inquired if there are two alternates at the meeting, how is one chosen to vote.  Ms. Sobrino replied hopefully, one of the alternates is representing the district in which the application is in; in that case, it would be specified that that is the alternate who should be voting on the matter; and if the alternates are not at all affiliated with the district, then it is the discretion of the Chair to identify who is chosen. 

 

Assistant County Manager Mel Scott advised there will be instances such as the last meeting when there are 13 members present; and since there was not a quorum issue, staff informed the alternates that have attended at the beginning of the meeting that they will not be needed for voting purposes at that meeting. 

 

Chairman Nelson stated his observation is that it will stop alternates from coming to the meetings.  Ms. Sobrino noted the alternate members are allowed to contribute to the dialogue of the Board and to ask questions of the applicant.  Chairman Nelson inquired if there are formal rules of operation for Planning and Zoning that identifies what Ms. Sobrino described.  Ms. Sobrino stated she believes there are formal rules.  Chairman Nelson stated before the Board makes a decision, he would like to see the rules, specifically as to how it is supposed to be addressed; and then the Board can make a more formal action if it is necessary.  Mr. Scott noted if it is a BCC Policy, then staff will put it on the Agenda.  

 

 

 

Chairman Nelson stated he would like to ask the County Attorney what the process is if the Board wanted to implement a two-year moratorium on the collection of Transportation Impact Fees for commercial projects.

 

County Attorney Scott Knox advised the Board is hearing the item as an emergency ordinance, which means there needs to be a four-fifths vote to pass the ordinance; what the Board would normally do is hold a public hearing, but when there is an emergency ordinance, the Board does not hold a public hearing; but the Board can still hear from the public. 

 

Chairman Nelson stated in terms of actions approving the ordinance, the Board has some choices to look at; and requested staff give a brief synopsis of how the ordinance got to where it is. 

 

Assistant County Manager Mel Scott stated at the Budget Workshop on February 26^th, the Board directed staff to prepare for this meeting an emergency ordinance which would set forth the opportunity for the Board to consider a two-year moratorium on transportation impact fees; and the thought process the Board gave to staff at the time was that due to the current economic recession, those conditions warranted consideration of the ordinances to help encourage in the short-term construction that might not occur if not for the absence of the fee.  He stated staff received further clarification from the Board on what to present tonight; and staff has basically set forth an ordinance which seeks to define how the moratorium will start and how it will sunset.  He advised essentially, the Board has several options; wherein the beginning of the moratorium will kick in on March 1, 2009; the sunset of the moratorium has been identified as March 2011; and the Board has several options to use in terminating the moratorium.  Mr. Scott stated the first option would be that a builder would have to receive a Building Permit; it would have to be issued to the builder prior to March 2011; and that would entail an approved site plan, which would mean the general site layout would have to be accomplished before a building permit could be obtained.  He stated it was the Board’s desire to ensure that under the moratorium it would spark construction activity in the short-term to help the economy; and the building permit issuance is a way that one could identify that within the next two years a building permit would have to be issued in order to enjoy the moratorium.  He stated the second option would be a Certificate of Occupancy (CO), which would need to be issued before March 2011; this gives the development community a much shorter window of opportunity from conception to completion of a project to enjoy the waiver of impact feeS; and a CO includes an approved site plan, an issued Building Permit, and the building constructed and issued a CO, which means the doors are ready to be opened for business.  He stated the Board can consider iterations of the two options as far as the termination date is concerned.  He noted another dynamic of the CO is that it would also capture those projects that are already under construction but have not yet received a CO; so there is approximately one dozen commercial projects that have gotten a Building Permit issued, or under construction, and may get the CO in a few weeks to six months; and they would also be able to enjoy the impact fee waiver.  He stated the Board can establish a termination point as being a complete building permit application; that would require the least amount of effort on the part of the perspective developer; at that point a developer would just have to meet the checklist requirements for having a valid permit application issued; and when that happens it is the same as having a permit number issued.  He stated also for the Board’s consideration is a requirement that a perspective development is satisfactory for a tax abatement; the theory would be that it would be corporate job creation with a specific manufacturing benefit, a specific value added; and that would grab the least amount of perspective development.  He stated as a brief overview, he thinks the discussion will be focusing on how to terminate the ordinance; and those options have been laid out for Board consideration.

 

Jack Hisey stated he would like to read a letter into the record.  “I want to thank you for your willingness to look at ways that we, at the local level, can help in the economic recovery of our community as well as our nation’s economic recovery.  No longer is anyone suggesting that we have turned the corner, or that the corner is even in sight. The terms have gone from downturn to slowdown to recession, and a real fear of depression and contraction.  We can no longer wait, we must act now. As a private individual who has already been touched by the severe economic disaster, I appreciate your sensitivity to the human element of this crisis.  This is not just about greedy CEO’s and labor organizations; it’s not just about posh retreats and corporate private jets; those are the stories of a few that get the big media attention.  But rather, this is about everyday Brevard County citizens out of work; citizens who no longer have access to health care or life insurance; this is about families losing their homes and cars, their savings and retirement.  A two-year moratorium on transportation impact fees might help stimulate economic activity in our community; activity that is within the confines of our growth management system; and  that  would  mean  jobs  and  families  with  health  and  life  insurance,  and  it would mean spending, and it would mean increased tax revenue for our schools, our police, our fire and rescue.  It is at least a chance.  If it doesn’t stimulate activity, then those opposed to this two-year moratorium have nothing to fear.  If it does stimulate activity, then it will be within the well-defined requirements of our growth management system. But more importantly, many Brevard citizens will be helped.”  He stated no one in three minutes can talk about the true impact of what is going on with the families and employees in the community at this time, and truly how they are affected and impacted by the moratorium.  He stated he hopes those highlights will cause the Board to think about the fact that there is a large community that needs the economy to get rolling again so they can get back on their feet; and he urges the Board to act now. 

 

Luke Miorelli, President of ME Construction, stated he spoke at the last Workshop; he polled eight owners that he normally does business for and three of them were piqued to thinking about starting to move forward with projects; two of them are additions, and one is a new building; and the result of the three projects would produce approximately 100 direct full-time construction jobs.  He stated if jobs move forward surveyors are going to be working, work will be created for people to do soil and percolation tests, landscape architects, environmental consultants; and all those people get involved in the early stages.  He stated for an owner to take this step forward, and the incentive the Board would give him, he would still need to put between $50,000 and $100,000 up just in design costs and fees before he ever put any bricks and mortar in the ground; and so the owners are still going to have to make a serious commitment.  He stated he would agree with Option 2 with a Certificate of Completion (CC) instead of a CO; the FDEP and FDOT could hold up a project from receiving its CO, even though the building was 100 percent done and some paperwork was not to the liking of someone in Deland; and he would urge the Board to use a CC rather than a CO.  He stated he would urge the Board to adopt the ordinance; and it is not large projects that will benefit by it, as it will benefit small projects such as doctors offices and other small businesses.

 

Doug Sphar stated he would like to ask the Board not to grant an emergency waiver to the transportation impact fees; as stated in yesterday’s Florida TODAY editorial, Brevard residents and taxpayers  deserve the chance to fully explore the cost and consequences of a moratorium.  He stated it is true that the community is in the throes of an economic crisis that has resulted in major job losses in the construction industry; however, a host of economic realities are swirling about that blunt the need for emergency action on a waiver.  He stated the first reality is a gridlock in lending; business lending and venture capital for new construction has been dried up for months; the next reality is many vacant commercial properties, some of which have never been occupied since built; and the third reality is where are all the customers for the new enterprises going to come from.  He stated the fourth reality is a projected loss of over 3,000 jobs with the consequence of the Shuttle phase-out; the Orlando Sentinel has said that thousands of the high-paid technical workers are being courted for jobs in Huntsville, Alabama; and inquired who would want to start a commercial enterprise in this environment.  He stated the moratorium waiver seems to mainly be supported by developers who do not like impact fees in the best of times; and inquired what qualitative parameters define an emergency.  He stated he looked through the staff report and did not see a comprehensive independent analysis by economists  or  other  financial  experts that supports the premise  that in impact fee moratorium would provide immediate economic stimulus to Brevard County.  He stated moving quickly on the emergency ordinance courts the school of unintended consequences.

 

Bill Ellis, Health First, stated he is in favor of the proposed moratorium on transportation impact fees; stated Health First is planning a hospital in Viera; and right now Health First is watching the financial markets.  He stated Health First needs some kind of impetus in order to move forward with the bonding of the hospital; something like the proposed ordinance would be a great stimulus to make the County move forward at an expedited time; it would mean approximately 350 construction jobs to the area; and when completed the hospital will supply 800 permanent jobs.  He stated it will take a full two years to construct the hospital; and it would help if a combination of a CO or a permit during the two years timeframe of the ordinance. 

 

Joe Goldblatt stated he and his wife own a business that has two heads; one of the heads is impacted by the overall health of the building and construction business in the State of Florida; and the other head is involved with the state of that industry in Brevard County; and he is proud to say that the head that serves Florida has been sufficiently strong enough to allow him to continue to keep his Brevard operation going forward through the current crisis.  He stated he believes the collective wisdom that established the fees was appropriate at the time; he is not opposed to the fees; and he would like to ask the Board to exercise the wisdom that it needs to deal with the situation as it is now, which is an emergency.

 

Pete Woods stated he is the Manager of Meridian Property Group; he is in the middle of a project called the Meridian Center; and Meridian Property Group has tried to be proactive and create jobs in the toughest economy.  He stated Meridian Property Group is trying to create an infrastructure in Brevard County that currently does not exist in the sense of true Class A office products that can be used to attract national tenants and businesses to relocate to the area.  He stated Meridian Property Group is creating a lot of jobs at a time when they are needed; it seems to him the fair method is the CO, or both a CO and a permit.

 

Joe Penovich, Grills Restaurant, stated the proposed emergency ordinance could really make a difference; right now he employs approximately 150 people; people come to his restaurant from all over the country; and he would like to thank the Board for offering an emergency ordinance on transportation impact fees. 

 

Keith Gover, President of Homebuilders and Contractors Association of Brevard, stated it is the plumbers and carpenters that are the ones that are really out of work; when those people do not work it impacts restaurants and other businesses; and he wants the Board to realize the masses are the workers who are out there day in and day out in the heat of the summer that are the ones that impact the community and the country. 

 

Commissioner Fisher stated it is well known that the community is having a difficult time, but if the Board decides to adopt the ordinance, there are a couple of things he would like the Board to consider.  He stated he supports the Certificate of Occupation, or Certificate of Completion, requirement;  maybe a temporary  CO can address some concerns about final plans; the goal is to stimulate growth over the next two years; and if a project is not finished in two years, then that is just too bad for the developer.  He stated something to keep in mind is that the County’s Building Department is generated off of fees; and it may be possible that if some building permits can be generated, then maybe some jobs can be saved in the Building Department.  He stated he thinks if a commercial project is over 50,000 square feet, the Board should allow the County Manager to extend that another year; he does not believe projects over 50,000 square feet can be completed in two years; and allowing one additional year in that circumstance would attract some larger projects.  He stated he also believes the emergency ordinance should extend to residential as well as commercial.  He noted he understands that because it is transportation impact fees, it does not affect the School Board.  He stated he does not think the County’s fee schedule is fair; and he hopes in the next two-year period the Board directs staff to look at the fee schedule.

 

Commissioner Infantini stated she agrees with Commissioner Fisher about the residential impact fees; stated the numbers for impact fees for education in 2005/2006 were $23 million; those were down three years later to $7 million; and the impact fees are dropping and schools are not needed to be built right now, as some schools are facing closure.  She stated schools are going to close because there is no tax revenue; there is no tax revenue because there is decreasing values; and the transportation impact fees decreased tremendously from $7 million to less than $5 million in the last two years.  She advised that money is not being spent; stated when she looked to see how much money was being spent in the last few years, the budget for 2008/2009, the Board had budgeted to spend nothing on expenditures out of the $12 million in the transportation impact fee program; and she is in favor of the proposed emergency ordinance.  She stated she understands there are a lot of commercial buildings that are vacant; but some of the vacant buildings may not suit the needs of potential buyers; and they also may not serve the demographic needs of the consumers. 

 

Motion by Commissioner Infantini, to waive both the impact fees for commercial and residential structures for two years.

 

 

Commissioner Fisher stated he will second the motion if it includes the 50,000 square-foot rule.

 

Chairman Nelson stated the Board needs to address some key issues, such as timing, before the final motion is made; and the Board needs to look at just transportation as opposed to other impact fees.  He stated if the Board agrees, he would like to look at the issues one at a time.

 

Commissioner Fisher stated it is his understanding that the School Board will not be affected because it is transportation impact fees.  County Attorney Scott Knox advised the Board will be collecting school impact fees; but the emergency ordinance only affects transportation impact fees.  Chairman Nelson stated he heard Commissioner Infantini say she did not want to collect school impact fees; stated if it is only transportation impact fees, then it does not affect schools; but if it is expanded to residential, then it will affect schools.  Commissioner Bolin stated she is not prepared to talk about residential; and she would like to keep the discussion on commercial.  Attorney Knox stated when the Board first considered exempting commercial impact fees in 1995, only 30 percent of all impact fees were generated by commercial properties; and 70 percent were residential.  He noted today, it is approximately 50/50 between commercial and residential; if the Board goes with strictly commercial, there is a chance someone could come along who does not like what the Board is doing and say the Board is undermining the whole impact fee program and the basis for that program; therefore, the whole thing is invalid, including the moratorium and the impact fee program; and his recommendation would be if the Board is going to do the moratorium, then it should go for residential and commercial.  He noted the School Board is not affected at all by the proposed emergency ordinance because it is transportation only. 

 

Commissioner Bolin stated her preference is the combination of the building permit and/or CO; if it is a large project, then it will be covered with the building permit; and under the permit system there are safeguards along the way to make sure that whoever pulled the report is following through.  She stated the CO covers those developers that have been proactive; and she does not want them to be penalized. 

 

Commissioner Anderson stated he agrees with Commissioner Fisher regarding the larger commercial projects; it is not feasible that large projects can be completed in two years; he does not think there will be many of them; and the 50,000 square-foot threshold is fine with him.  He stated he reluctantly understands the residential side; and there is such an inventory of homes, that there may not be many that are built; but he does not want the consequence of liability.  He stated he wants to make sure the Board has good communications with the public; there is a lot of misleading information; Florida TODAY’s editorial was very misleading from what the Board was going to discuss; and it is important that the Board gets out the facts and the truth.  He stated the ordinance is not stopping any projects; the revenue being taken in on impact fees cannot be used to build sidewalks, as they are only for capacity; and that information may need to be on the County’s website or on SCGTV, so the Board is not accused of being pro development.  He stated he has received emails from people who say they are worried about the  big  developers;  he is worried  about the blue collar  workers  in his district; he represents a large portion of Eau Gallie and Palm Bay; those people are heavily relying on the construction trade; and he is more worried about them than any big developer. 

 

Chairman Nelson inquired of the timeframe Attorney Knox cited for the number of residential versus commercial.  Attorney Knox replied it was from the beginning of October 2008 until today.  Chairman Nelson inquired what is the basis for the unfairness question; stated the community is clearly in a difficult economic circumstance; and inquired if it was unfair that it was 70/30 previously.  Attorney Knox stated someone could have argued it was unfair at 70/30, but it is easier to defend if the Board is at 70 percent residential versus 30 percent commercial, as opposed to 50/50 because at 50/50 the whole basis for coming up with the impact fee number that is used, the Board is taking half of it away.  He stated the impact is 50/50 commercial and residential.  Chairman Nelson stated the fee is based on the impact of the individual circumstances such as the number of bedrooms or based on the square footage; and inquired if that  was  not already taken into consideration.   Attorney  Knox it is taken into  account, but  the Board is only collecting half of the money it should be collecting as opposed to putting everyone on equal footing; and it is easier to defend at 70 percent because then it can be said that most of the impacts are residential, and now the Board is at the point where it can say there is equal impact.  He stated if the purpose of the impact fee is to offset the cost of new development so that additional roads can be built to offset the cost, the Board is only collecting half of the cost and leaving the other half out there. 

 

Commissioner Fisher stated when there are 900 foreclosures per month in the County, he is not sure how many people on the residential side would want to build when they can buy something cheaper on the foreclosure market.  He stated the whole goal is to stimulate growth; if a developer pulls a permit in 18 months, and if the Board addresses the 50,000 square-foot rule, then the large projects would fall into that category; and then they would have three years to do it.  He stated the developers have to take advantage of the opportunity; and that is what the Board is trying to get them to do.  He stated any developer that has a large project over 50,000 square feet, they have an additional year; the County Manager can grant that; and the Board wants those developers to pull their permit in the first 18 months because it is going to generate fees for some of the County’s departments.  He stated if a smaller developer cannot get a project done in two years, then that is unfortunate for them. 

 

Commissioner Bolin stated Commissioner Fisher is talking about a one-year extension; and inquired if the Board can be flexible, and instead of a time element, a reasonable administrative adjustment for it.  She stated no one knows what is going to happen, such as a hurricane, and she would hate to set a deadline on that for the people who have projects over 50,000 square feet.  Commissioner Fisher stated one of his concerns is that permits can be pulled and not have an end date, then there is no motivation to get a project done; if the Board is trying to stimulate jobs, then it needs to create motivation to get it done; and having a timeline on it makes people realize the Board is serious about what it is doing and it is serious about the impact.  He stated waving the fees is a very important matter for the County; it is important that the  Board  sends a  clear message  that on the 23^rd month, a  developer does not request more time; and he thinks the Board needs to set a drop dead date, but it will make exceptions for projects 50,000 square feet or more. 

 

Chairman Nelson stated if the Board is going to go in that direction, he thinks being able to pull a permit up to the 18^th month and expect it to be built by the end is setting the Board up; and he was thinking developers can pull a building permit in the first year and completion in the second year.  He stated if the Board does not do that he is afraid there will be a parade of people coming to the Board and requesting extensions. 

 

Commissioner Bolin inquired if Chairman Nelson is suggesting the either/or option, but tweak the permit to put a time element on it.  Chairman Nelson stated he is suggesting developers pull a permit within a year, and a CO within two years; but he agrees that larger projects need more time.  Commissioner Fisher stated that can be temporary CO.  Chairman Nelson stated he also does not object with the Certificate of Completion because at that point a developer will have done all the things they were trying to accomplish. 

 

Mr. Scott stated the phrase Certificate of Completion has gotten stronger legs than staff ever intended; for clarity, it is really the temporary CO staff is talking about; and a Certificate of Completion is more about if there is a strip center that is being added to, or have built out the shell, and it is being verified that that portion of the center is done and a Certificate of Completion is issued.  He stated for purposes of this discussion, it is a temporary CO; a temporary CO means the building is done, all health safety issues have been taken care of, there are some little things that are outstanding, and the temporary CO is issued.  

 

Chairman Nelson inquired if there is a basis for that in the Building Codes; with Mr. Scott responding yes, it is in the Codes and the Building Official has the latitude to make that determination. 

 

Chairman Nelson stated he does not know if there is anything magical about 50,000 square feet.  Mr. Scott stated 50,000 square feet is a big project.  Commissioner Bolin inquired how many square feet can be done in two years.  Mr. Scott replied complexity of the building has a lot to do with it; stated with Ace Hardware, it is a mid-size hardware store, and not like a Super Wal-Mart; in this economy, something like that can be done from conception to CO in one year if aggressive; and the Health First project Mr. Ellis mentioned is 275,000 square feet.  He stated by way of analysis, staff has looked at the last three years of commercial projects and identified that 14 percent of all commercial projects were greater than 10,000 square feet in the last three years; even at a 10,000 square-foot threshold, it is a different type of endeavor; and 50,000 square feet, in effect, would differentiate between big box in size, and the mid to small size business. 

 

Commissioner Bolin inquired if there is a better number than 50,000 square feet.  Mr. Scott replied even at 10,000 square feet and $1 million of construction valuation, only 14 percent of all commercial site plans over the last three years have tripped that threshold. 

 

Ed Lyon, Permitting and Enforcement Director, stated the first time Mr. Scott mentioned that, he failed to mention the $1 million of construction valuation; there are more projects that probably meet the 10,000 square-foot threshold; and what staff looked at was complexity. He stated there could be a 10,000 square-foot building that is a shell with not a lot of complexity; when staff came up with that number, it also looked at the value of construction that everyone provides; and it was 10,000 square feet and $1 million in construction.  He stated the more expensive it is to build, then the longer it will take; for example the large box stores are built faster because they have the industrial-type design where it is all open; and if the Board looks at some other number, he would recommend it also look at the complexity. 

 

Commissioner Infantini stated she agrees with Chairman Nelson; she wants to have the permit pulled within 12 months because otherwise the Board is extending the moratorium; and like Commissioner Fisher said, the whole idea is to get jobs going and get growth going.  He stated if the Board procrastinates, then developers and builders will procrastinate.  She stated she would like to have it where there is a permit within 12 months, the temporary CO within 24 months, except there is a potential to extend that if a project is over 25,000 square feet or 15,000 square feet.

 

Chairman Nelson inquired how value can be placed on a value; and where is the line drawn in terms of complexity that gives more or less time.  Mr. Lyon replied there is no clear cut way to do that.

 

Chairman Nelson stated he would agree with 25,000 square feet.  He stated what the Board is looking at is requiring a building permit in 12 months, completion of less than 25,000 square feet in two years.  Mr. Scott stated for projects over 25,000 square the County Manager will have the ability to approve that for up to one additional year, and it would be an administrative extension.

 

Chairman Nelson stated Mr. Sphar brought up a good question; stated he supports impact fees, but the County is in unique times; and he wants to deal with that, but he also wants to make sure the Board goes into it with its eyes open and assess success to some level.  He inquired how will the Board know what it did if it does not track lost revenue; at some point, some Board will have to make this up; stated Health First wants to build a very large building; and inquired if people can imagine that building on some of the more crowded roads without impact fees.  He stated if that building was put on Merritt Island or Wickham Road, there would be a huge number of trip generation; the Board is on a $.5 billion road deficiency list; and now those roads are going to compete with whatever the Board reduces the impact fees by. 

 

Commissioner Infantini stated with a hospital such as Health First on busy roads that are too small, she would not grant them a zoning approval because when a structure like that goes in, all the circumstances have to be considered; and the Board has the authority to not grant a change in zoning.  Chairman Nelson stated there are going to be circumstances where the zoning exists to be able to build significant size buildings that the Board will not be able to collect any dollars; and there are zonings that exist that can create significant traffic, and the Board cannot do anything about it.  Commissioner Infantini stated she would suggest having the Planning and Zoning Department look at what structures are available. Chairman Nelson stated the Board cannot change the zoning.

 

Commissioner Fisher stated the Board talks about vacant pieces of properties that are now all of a sudden going to have tax roll to them; the Board is going to create some value there in additional taxes that it does not have now; and he thinks the tax roll should increase.  He stated another concern he has is that the Board is probably low on its numbers of what the deficit is going to be; it will probably be another 50 percent on top of what the Board thought the worst case scenario was; and somewhere the Board has to stop talking about cutting, and start talking about how to generate revenue because revenue is what is going to help get the community out of the hole it is in.  He stated one of the measuring tools he sees, is what happens to the tax roll after this.  Chairman Nelson stated he agrees with half of what Commissioner Fisher said because certainly a greater taxable value creates the opportunity, but if there is zero millage, or some number that does not substantiate building the roads, then the Board has not done anything.  He stated it is great to have the value, but if there is not the millage that generates the dollars that builds the roads, then the Board will find itself with $.5 billion worth of roads. 

 

Commissioner Fisher stated something else to remember is most of the large projects still have to do road improvements even though they do not have impact fees; and the large projects have to widen turn lanes.  Chairman Nelson stated those developers would get some credit for that. 

 

Chairman Nelson stated he would like to track what the lost revenue would be as part of this process.  Commissioner Anderson stated the Board would have to quantify those businesses; if the developers would not have built anyway, the Board would have never realized those impact fees; if the proposed ordinance spurs someone to build, it is not fair to say the Board lost impact fees; and he agrees with Commissioner Fisher that the Board gains more revenue by putting people back to work.  Chairman Nelson stated then the Board is not putting any level of assessing what it did in this process; stated what Commissioner Anderson is saying is impact fees in and of themselves should not be collected; and he cannot go there.  Commissioner Anderson stated that is not what he is saying; the Board needs to ask the developers if the ordinance spurred them to build; and those are the ones that would be not counted.  Chairman Nelson stated conceptually, there is going to be an impact associated with the Health First building; they are going to create jobs, which is great; but they did create the impact; and at some point the Board is going to be faced with how does it deal with the impacts that were created.  He stated while the taxable value may go up, the question is does the Board truly collect enough in the way of taxes to do that because if that were true, the Board would not be sitting on $.5 billion in roads. 

 

Commissioner Infantini stated she disagrees that Health First is going to generate more cars to the road; people only go to a hospital if they have a need; and it is saving her from driving a further distance.  Chairman Nelson stated hospital employees show up every day, and that is an impact.  Commissioner Bolin stated all Chairman Nelson is saying is that he would like to have some numbers run; and she would agree with him that the Board needs to keep track.  Commissioner Fisher stated what the Board might want to do is ask the EDC to help put a value on this as they might be able to track it.  He stated as some of the developers build on some of the roads, there will be some concurrency issues.  Commissioner Anderson advised there is a bill in the Legislature right now that wants to suspend impact fees across the board; he does not think it will pass, but if it does then there will be another issue to deal with; and he agrees with Chairman Nelson, but he also wants a way to quantify how much economic impact that is generated for the community. 

 

Commissioner Fisher stated some people think if there were no residential impact fees it would affect the revenue of the schools; and he thinks he heard Attorney Knox say that is not the case.  Attorney Knox stated as long as it is restricted to transportation, it is not going to affect schools.  Mr. Scott advised if the Board waives transportation impact fees as it relates to residential, then it is not impacting the school impact fee.

 

Chairman Nelson stated by comparison, the residential numbers are so much smaller outside of transportation.  Mr. Scott stated staff has had the opportunity from last Thursday until tonight to make sure they  have  gone  through every  commercially based impact fee agreement; the only aspect to the residential waiver tonight that he cannot address because it is new, is what impact fee agreements are out there in the development community that are linked to residential; and staff made sure they were not harming any contracts on the commercial side.  Attorney Knox stated the one residential arrangement the Board has is the Viera arrangement; there is general language in all the impact fee credit agreements that say they apply to the extent the Board collects the impact fees; and if the Board is not collecting the impact fees, then it does not get credits.

 

Commissioner Anderson inquired if the Board is opening itself up to liability by not including residential.  Attorney Knox responded it is conceivable someone could come along and say that collecting from residential only during this two-year period would be unfair and violate the purpose for which the Board imposed impact fees to begin with; and therefore the Board should pay them back for all the residential impact fees.  He stated if the Board wants to collect the residential impact fees and put them in an account and see what happens, and not spend it, and make sure it’s bearing interest, and take the risk, then the Board can do that because then there is some way to pay it back.  Commissioner Anderson stated he does not think there is a lot of residential building going on, so he does not know if the Board wants to go through the trouble of doing that.  Attorney Knox stated that is the other side of the coin; if the Board does not think a lot of residential building is going to take place in the next two years, it does not make any difference if it includes residential; and it is safer from a legal point of view.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to adopt Emergency Ordinance No. 09-08E, of the Brevard County Board of County Commissioners imposing a two- year moratorium on the collection of Transportation Impact Fees from residential or commercial projects; providing for findings and purpose; acknowledging supermajority approval; providing for severability; providing for an area embraced; providing for an effective date; providing for inclusion in the Code.  Motion carried and ordered unanimously. 

 

 

Mr. Scott stated he would like to let people who have paid impact fees in the past know there are millions of dollars of transportation impact fees hard at work on construction projects currently; and each year the County disburses those funds.  He stated in the fifth year of this fiscal year staff waits for the 08/09 fiscal years collections occur; those dollars are then put in committee and are disbursed out to the long list of needs. 

 

Commissioner Fisher inquired if Mr. Scott could address cities.  Mr. Scott advised if there is a city right now that has an agreement where it is using the County’s ordinance, it has the ability to overturn the ordinance, which has effectively placed that moratorium on their collections; and individual cities, such as Indian Harbour Beach, would have to understand what occurred tonight if it wants to retain transportation impact fees, it would have to pass an ordinance to do that. 

 

Chairman Nelson inquired if staff understands there is Board direction to create a tracking mechanism to use as a gauge.  Mr. Scott stated the tracking mechanism that staff will use will track the permits issued, and the impact fees that would have been collected.

 

Commissioner Fisher stated he would also like the EDC to track some of the projects.  Mr. Scott stated he will contact the EDC and ask them to look at the projects that have come on line. 

 

Attorney Knox inquired if Commissioner Infantini’s motion included authority to amend the ordinances presented to the Board to conform to the motion.  Chairman Nelson stated yes, the motion included that.

 

 

 

Upon motion and vote, the meeting adjourned at 6:41 p.m.

 

 

 

ATTEST:                                                                     _________________________________

                                                                                    CHUCK NELSON, CHAIRMAN                                                                                                           BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

____________________

SCOTT ELLIS, CLERK

         

          (S E A L)