The Board of County Commissioners of Brevard County, Florida, met in special session on December 8, 1995, at 10:00 a.m. in the Government Center Multipurpose Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, Assistant County Manager Stephen Peffer, and County Attorney Scott Knox.

INTRODUCTION, RE: SCRUB CONSERVATION AND DEVELOPMENT PLAN

Assistant County Manager Stephen Peffer advised since the Scrub Conservation and Development Plan (SCDP) has been under development by a Steering Committee established by the Board, there have been three significant changes: (1) a new Congress that may look at the Endangered Species Act (ESA) differently than it has been looked at in the past; (2) Florida passed new Property Rights Legislation which may have an impact on the way any plan would be implemented; and (3) four new Commissioners. He stated it is appropriate to revisit the issues and re-focus on what Brevard County is trying to accomplish; Question 1 is how will Brevard County comply with the requirements of the ESA; and Question 2 is will Brevard County assist property owners who have scrub to comply with the ESA. Mr. Peffer advised these questions need to be revisited and options available discussed and considered.

HISTORY, RE: SCRUB DEVELOPMENT ISSUE AND PLAN

Tami Townsend, SCDP Coordinator, briefed the Board on the historical events that led to development of the Countywide Habitat Conservation Plan (HCP), including the notification letter from U.S. Fish and Wildlife Service in June, 1991, regarding the prohibitions against taking endangered species by any person and that Brevard County, which issues permits allowing land owners to develop scrub, could be held liable and responsible. She advised Wildlife Service informed the County that the mechanism available is to establish a Countywide HCP for scrub jays; Natural Resources staff decided not to go that route, but to put together a Compliance Plan; and in January, 1992, it submitted such a Plan to the Board and the Service. Ms. Townsend stated the Board established a Scrub Jay Mitigation Banking Advisory Committee; and explained the Plan and various duties of the Citizen Ad Hoc Committee. She advised in April, 1992, the Board discussed changing the focus of the Committee from land banking to developing a Scrub Countywide HCP and permitting procedures for scrub property owners; it decided to let the Committee gather information on developing a HCP; and established a procedure to notify U.S. Fish and Wildlife Service and scrub land owners of their obligations under the ESA.

Ms. Townsend briefed the Board on the current procedure and explained the Committee?s recommendations; advised the Board unanimously approved such recommendations in December, 1992; and the next two and a half years have led to development of the SCDP which is the Countywide HCP. She summarized the current proposal by the Steering Committee which includes the Countywide SCDP; stated the main issue is the funding source; and currently the funding proposal is for the County to submit a CARL proposal to purchase the lands and approach U.S. Fish and Wildlife Service for a Section 10 (A) permit to allow people to develop their lands through the County instead of the Service.

DISCUSSION, RE: LEGAL ISSUES

County Attorney Scott Knox advised the letter from U.S. Fish and Wildlife Service says the County?s issuance of permits violates the provisions relating to protection of endangered species; the Statute says someone cannot take an endangered species; ?taking? is defined to include harming of endangered species; and ?harm? is defined as including habitat modifications. He advised the Service has taken the position that by issuing permits, the County is permitting the modification of habitat which may result in the taking of a species; and it stands liable if that happens. He noted there is an issue whether or not that is a valid position on the part of the Service; the regulations contemplate physical taking has to occur as a result of the County?s actions; if the County were issuing permits and allowing people to develop, subject to them getting permits from the Service, it would not have any physical connection to endangerment of species through habitat modification; and that issue would have to be raised in a lawsuit with the Service if the County wanted to resolve it before getting a permit.

Attorney Knox advised the Property Rights Legislation becomes relevant due to the method by which the County is seeking to address the concerns of the Service, one of which is the HCP; any new rule, regulation or ordinance the Board passes that affects property rights will come under this Legislation; and it does not take a lot to affect property rights with the meaning of the Legislation, as all it has to do is de-value the property through its action. He stated if the Board passes an HCP which identifies a particular area for future preservation of the species, it may have the affect of devaluing that property or area; if that happens, it may trigger the Property Rights Legislation; and there could be potential for a compensation claim. He noted no one knows what the Property Rights Legislation means; it is open to interpretation; it is up to the courts to do that; no one has had the opportunity to bring it to the courts since it is new; and it is still debatable as to how it affects a particular situation.

Discussion ensued on federal regulations, Endangered Species Act, Property Rights Legislation, devaluation of property, Habitat Conservation Plan, and liability issues.

DECLARATORY STATEMENT, RE: COUNTY?S LIABILITY REGARDING SCRUB CONSERVATION AND DEVELOPMENT PLAN

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct the County Attorney to report back to the Board with opportunities for declaratory statement regarding the Scrub Conservation and Development Plan (SCDP) and where the County is on this particular portion of the policies, what it is issuing now, and what it could issue that would absolve it from liability; and to investigate exactly what the County?s liability is. Motion carried and ordered unanimously.

REPORT, RE: OPTIONS TO DEVELOP SCRUB HABITAT IN BREVARD COUNTY

Assistant County Manager Stephen Peffer stated the first option is following the current procedures which it has been operating under without objection from the Service. He noted the second option is require the property owner to obtain a permit from U.S. Fish and Wildlife Service before it would issue a permit; and the third option is to do nothing and issue the permit as a passive way of challenging the Act. He stated it puts the County at risk according to the Service?s notice that says the County is not complying; it does not provide the property owner with any help; and if there is a violation, the property owner would be the first one in line to receive the enforcement action. Mr. Peffer advised the fourth option is the SCDP; the current mechanism envisioned for implementing the Plan is through State funding, using dollars from the CARL Program; such funding would be used to buy the scrub reserves to allow the County to obtain a Section 10 (A) permit from the Service; if the County was able to accomplish all of this and receive a 10 (A) permit from the Service, it preserves the most valuable property for habitat of the scrub jay and helps the property owners that have scrub property by giving them fair market price for their property if they are in the core area; and if they are in the non-core area, they are able to develop because their property is released from regulations by the County?s permit. He stated the last option is the mitigation bank does not put the County in the same position it would be in if it had the Section 10 (A) permit; it does not satisfy the ease of permitting for a property owner; but it would provide a reserve, which is a piecemeal approach to the scrub conservation proposed in the SCDP. Mr. Peffer explained the last option as similar to the wetland mitigation concept. He stated the property owners could negotiate their own terms with the Service, purchase property for their mitigation, or establish a HCP of their own; but a mitigation bank could be offered as an alternative.

Mr. Peffer stated these options are not exhaustive; they capture the main options the County has; they are not mutually exclusive; and it would be possible to proceed with plans to implement an SCDP and also set up a mitigation bank.

REPORT, RE: CARL PROPOSAL OVERVIEW

Dr. Duane DeFreese, Environmentally Endangered Lands (EEL) Program Coordinator, advised the EEL Program established a scrub jay refuge project; the County identified approximately 8,000 acres that was ranked and is in the program for acquisition; when the SCDP process came on board, the Strategic Scientific Committee validated what the Selection Committee did; and to date, they have acquired over 2,000 acres and have received a number of acres through the mitigation process in the CARL project. He stated such project was re-ranked for 1996; the County is ranked 5th and will be funded through 1996; and there is a strong political interest in scrub Statewide. He noted this may be the last year that Brevard County has a good window to get on the list for funding; ranking generally takes a year; and it will be this time next year before the County is fully ranked. Dr. DeFreese stated if the County chose to put a proposal together, it could submit a phased approach; Phase 1 would be the existing EELS project which is fully funded and in the bargain shared category 50-50 match; that would continue to move forward through next year with adequate funding for EELS to continue to buy properties; and with over 2,000 acres already acquired, it provides leverage to negotiate terms with the Service. He stated Phase 2 would be the remainder of the core areas identified by the Scientific Advisory Group in the SCDP; and such Phase would not begin until the County was far enough along in acquisitions to insure it could buy all the properties at fair market value from willing sellers.

Dr. DeFreese advised it is a market-driven process; if people are unwilling to sell, there is no mandate for them to do so; and should the County get that far, there is a Phase 3 capability which would be the remainder of the Comprehensive Plan under the SCDP strategy. He stated it gives the County an opportunity to take advantage of the last four years of CARL funding; and if it can get a state priority project, it may pick up the entire tab. He provided a handout to the Board explaining how the review process works.

BOARD DISCUSSION

Commissioner Ellis stated Brevard County has never been given any numbers from U.S. Fish and Wildlife Service for survivability of species, and inquired what is the statistical percent of survivability over ?x? number of years. Dawn Zattau, representing U.S. Fish and Wildlife Service, responded it would depend on how much land is set aside and how much is managed correctly over time.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to direct staff to send a letter to U.S. Fish and Wildlife Service requesting it forward information to the County, defining what survival of the species is in Brevard County, or include it in the request for declaratory statement if it is possible. Motion carried and ordered unanimously.

Commissioner Higgs inquired if Ms. Zattau can define what the U.S. Fish and Wildlife Service would expect from a Habitat Conservation Plan; with Ms. Zattau responding enough to insure survival of the species overall which is the main question it has to ask itself before it can issue a permit. Commissioner Higgs stated in order for the Service to do that, it needs to know how Brevard County is going to fund, implement, and manage it; with Ms. Zattau responding that is correct. Commissioner Ellis noted the Service has to be able to tell the County how much it needs.

Commissioner O?Brien expressed appreciation to the Committees for their efforts and dedication; advised until the County has something clearly defined, it cannot make a decision; and it is looking for a final statement from U.S. Fish and Wildlife Service.

Commissioner Scarborough inquired when the County can expect to receive comments back from the Service; with Ms. Zattau responding by the end of December, 1995.

The meeting recessed at 11:30 a.m., and reconvened at 11:50 a.m.

PUBLIC COMMENT

Mary Todd, 135 S. Bel-Aire Drive, Merritt Island, requested the Board vote to submit the CARL proposal to the State to provide a funding mechanism for the SCDP.

Charles Moehle, 65 Country Club Road, Cocoa Beach, encouraged the Board to proceed, keep its options open, and apply for the CARL application.

Buzz Tietig, 1326 Malabar Road, Palm Bay, stated it makes no sense not to make an application for the CARL funds; and requested the Board adopt the proposed resolution.

Bernie Simpkins, 400 Highpoint Drive, Cocoa, advised he is impacted by the things that occur; sometimes the property owners are forgotten in the process; and requested the Board keep the private property owners? rights in mind.

Geri Lindner, 6056 Barna Avenue, Titusville, requested the Board keep in mind that the scrub jay plan should be implemented in Brevard County.

Norma Adams, 801 S. Brevard Avenue #G, Cocoa Beach, urged the Board to preserve as much land as possible as it needs all the inexpensive recreation facilities it can have for families.

Judy Dryja, 888 Bartel Place, Rockledge, representing Indian River Audubon Society of Brevard County, read a letter from the Florida Audubon Society advising it strongly supports protection of scrub jays in Brevard County and development of an application to the State Land Acquisition Advisory Committee for a CARL project to encompass scrub lands in the County.

Karl Eichhorn, 911 Bali Road, Cocoa Beach, representing Indian River Audubon Society, read a letter from the Society requesting the Board adopt the SCDP as developed by the Steering Committee.

Margaret Broussard, 3660 N. Riverside Drive, Indialantic, requested the Board adopt the SCDP and advised she supports the CARL proposal.

Margaret Hames, 667 Acacia Avenue, Melbourne Village, urged the Board to read the Scientific Advisory Group?s study and move forward with the SCDP; and advised she supports the CARL application. Pat Poole, P. O. Box 854, Melbourne, stated it is important to move forward with the SCDP and CARL project; and urged the Board to make the right decision and do what needs to be done.

Carl Signorelli, 5780 Eagle Way, Merritt Island, stated spending $90 million of tax money on such Plan is ridiculous; the human race is the endangered species; and tax money should be spent for human benefit.

Graydon Corn, 3690 Aurantia Road, Mims, expressed his opposition to the SCDP as it is an unfunded federal mandate and there is evidence it is not needed.

Micah Savell, 1370 Sarno Road, Melbourne, showed a visual presentation to the Board and audience on the taking of private property.

Norma Savell, 3500 S. Courtenay, Merritt Island, President of Citizens for Constitutional Property Rights, urged the Board to choose Option 3 and do nothing about the SCDP and repeal the Land Clearing Ordinance.

Kim Zarillo, 760 Cajepat Circle, Melbourne Village, requested the Board agree to follow the biological option of the comprehensive alternative and direct staff to make a CARL application. She advised she would like to see Brevard County preserve the sites to insure survival of the species and habitat as well.

Micah Savell, 1370 Sarno Road, Melbourne, advised he has not seen the revised draft of the SCDP; the citizens have not had the opportunity to review it; and it is the individual property owners? responsibility to comply with the Endangered Species Act and not Brevard County?s if it gets out of the land clearing business.

B. B. Nelson, 3535 Hammock Trail, Melbourne, advised the U.S. Constitution gave citizens the Bill of Rights; it specifically says, ?Nor shall private property be taken for public use without just compensation?; the Commissioners must be careful about what they pass and whether or not they are violating the constitutional rights of citizens; and if the Board approves the SCDP, it is going to violate his constitutional right.

Priscilla Griffith, 6414 South Drive, Melbourne Village, representing League of Women Voters, stated the League urges the Board to pay heed to the results of a random sample opinion poll of 400 registered voters of Brevard County; and outlined the results of the poll. She noted the voters are receptive to the idea of preserving and protecting Brevard?s endangered scrub habitat; and a majority of voters support the SCDP.

Don Simms, 411 Palm Springs Boulevard, Indian Harbour Beach, stated he wants to save the scrub jays; inquired why not trap the scrub jays and release them in a habitat where they could have a much better chance of success in living; and noted the $100 million could be spent on schools and taking care of children.

RESOLUTION, RE: REQUESTING SUPPORT FOR THE COASTAL SCRUB ECOSYSTEM INITIATIVE

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution urging the CARL Land Acquisition and Advisory Council to accept, rank and fund the Coastal Scrub Ecosystem Initiative CARL Proposal, as developed and submitted by the County; and authorize the Chairman to execute Application for the CARL Program. Motion carried and ordered unanimously. (See page _____ for Resolution No. 95-323.)

Chairman Cook stated the Board cannot take action on the SCDP without getting response to its previous two actions; it has to have the answers to such actions which include the letter to U.S. Fish and Wildlife Service and the declaratory judgment so it knows where it stands; and the information is needed before the Board can make an intelligent decision.

Commissioner O?Brien requested Ms. Griffith provide the questions asked in the poll by the League of Women Voters to the Board.

DISCUSSION, RE: PROMENADE CENTER

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to authorize the County Attorney to inform the developer of Promenade Center that a chain link fence separating commercial and residential areas does not comply with Brevard County Code. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 1:10 p.m.

ATTEST:

_________________________

SANDY CRAWFORD, CLERK

(S E A L)

__________________________________

MARK COOK, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA