October 7, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 7, 2003, at 9:02 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Father Joseph McDowell, Links of Hope, Cocoa, Florida.

Commissioner Ron Pritchard led the assembly in the Pledge of Allegiance.

ITEM REMOVED FROM AGENDA

County Manager Tom Jenkins advised Item III.E.3, Agreement with State Attorney Norm Wolfinger for Sexual Assault Victim Services, has been withdrawn and will be rescheduled.

BROCHURE, RE: SALES TAX REFERENDUM

County Manager Tom Jenkins stated at the last meeting the Board asked staff to prepare a brochure on the referendum; staff has done one in a very short time period; and distributed the brochure. He stated the Commissioners can review the brochure and comment later in the meeting.

RESOLUTION, RE: COMMENDING JAMES W. EAVES

Commissioner Scarborough stated at the last meeting the Board adopted a Resolution recognizing Jim Eaves for his service to the County; and Mr. Eaves was unable to be present at that meeting, but is present today. Commissioner Scarborough read aloud the Resolution recognizing and commending James W. Eaves for his outstanding contributions to Brevard County’s road system and extending best wishes for his good health and happiness during his retirement. Commissioner Pritchard presented the Resolution to Mr. Eaves.

REPORT, RE: KENNEDY SPACE CENTER SALUTE TO RESIDENTS

Commissioner Pritchard stated Kennedy Space Center, to show its appreciation for the support of the Brevard County residents, will present the Fourth Annual Salute to Brevard Residents Free Weekend Friday through Sunday, October 10 through 12, 2003. He stated Brevard County residents can enjoy free admission to the Kennedy Space Center Visitor Complex by showing proof of residency; and the Visitor Center will collect canned goods and non-perishable food items to benefit the Brevard County Sharing Center. He noted admission includes all exhibits and programs at the Visitor Complex, the KSC bus tour, IMAX movies, and the new Astronaut Hall of Fame.

REPORT, RE: DELEGATION MEETING ATTENDANCE

Commissioner Pritchard stated he would like to clarify his statement made at last Thursday’s zoning meeting regarding his attendance at the Legislative Delegation meeting to be held tomorrow afternoon; he will be there to respond to any questions the Delegation may have concerning signature bonds or fireworks; and he will also be supporting his constituents who are supporting the Tico Special Act legislation. He advised he will be speaking for himself and not the Board on that issue.

REPORT, RE: SAMPLE OF THE ARTS - HONOR AMERICA

Commissioner Carlson stated George Geletko and Lotte Lopez are present to speak about Honor America.

George Geletko stated Honor America was incorporated in 1974; and advised of the purpose of the organization to reawaken a sense of pride in American traditions, ideals, and accomplishments; instill devotion and admiration for our country; increase knowledge of citizens concerning the nation’s cultural heritage, constitutional form of government and national, state, and local history; promote and encourage a program designed to honor America and respect the flag; commemorate the anniversary of independence of the United States of America and other historical patriotic events; and promote an awareness of the blessings of life, liberty, and the pursuit of happiness. He stated the Liberty Bell Museum is located in Wells Park in Melbourne; and it houses a full-size replica of the Liberty Bell as well as the Bicentennial project. He stated the museum is open to the public free of charge throughout the year except for holidays; and commented on the collections housed at the museum. He advised of class tours by students, pilot program, and the Melbourne Military Memorial Park, which is adjacent to the museum. He stated the building depends on donations, and is in need of repair. He advised on Memorial Day, they dedicated the Melbourne Military Memorial Park; and on Veterans’ Day there will be a dedication of the museum expansion. He stated other events include Fourth of July and Veterans’ Day parades, military concerns, and Flag Day, Pearl Harbor, and Battle of the Bulge ceremonies. He stated this week they hosted an annual reunion of a group of the World War II Veterans’ organization; and they appreciate the Board’s continued support.

Commissioner Carlson stated the Board appreciates Honor America’s presence in the community. She inquired when Honor America first came to be; with Lotte Lopez responding it was formed in 1971 by the Chamber of Commerce and a group of dedicated people; and it came from Bob Hope and many other dignitaries who felt there should be a recognition to honor America. She stated it was incorporated in Brevard County in 1974; and it has been in existence ever since. Ms. Lopez advised last year she retired; but now she is back as the office manager.

REPORT, RE: INVISIBLE ELECTRIC FENCES

Commissioner Carlson stated she received a letter from the President of the Pineda Crossing Homeowners Association; there was an issue about a dog attack that occurred; the dog was supposed to be confined by an invisible electric fence; and there was a guest column in the newspaper that created confusion. She stated one side said it was a good thing; there was a question whether those fences are legitimate in terms of keeping dogs confined; and she would like to get a report back from staff to see if such fences are consistent with the current Code and if they are not, the Board may need to have a look at the Code.

REPORT, RE: LETTERS TO U.S. FISH AND WILDLIFE SERVICE AND FIND ON SPEED
SIGNAGE AND DOCK PERMITS

Commissioner Pritchard stated on August 26, 2003 the Board directed staff to draft a letter to U.S. Fish and Wildlife Service and the Florida Inland Navigation District expressing the Board’s opinion regarding the manatee speed signage problem and the U.S. Corps of Engineers hold on issuing dock permits in the County. He stated letters were drafted but at the subsequent meeting, Sandra Clinger made a presentation on behalf of the Manatee Club; and the Board opted just to send a letter to FIND; but that is not what was originally intended. He stated he asked Steven Webster to come and make a brief presentation.

Steven Webster, Executive Director of the Florida Marine Contractors Association, stated by now he had hoped to have written a thank-you letter to everyone for helping put Brevard marine contractors back to work and for helping to fulfill the dreams of Brevard County homeowners to enjoy fishing and boating from their own docks; when the Board voted unanimously to take action, he assumed that is what would be done; but he has come to the conclusion that the laws of nature do not necessarily apply to this forum. He stated the Board did not keep a promise to the people he represents; the Board promised to send a letter to release dock building permits that have been illegally withheld for nearly a year; the vote was unanimous; but at the subsequent meeting at which no dock builder or homeowner was present, Commissioner Higgs moved to not send such a letter, Commissioner Carlson seconded the motion, and someone else agreed. He stated a member of the Manatee Club was present to lobby for the reversal, but he was not even given a ticket to the show; and after reneging on that promise, the Board did not even send him a copy of the letter that was sent out. He stated he found out about the letter by accident last week; and inquired what is it about his simple request that people do not understand and what is it that has shades of gray. He stated Commissioner Higgs made the motion to not send a letter to U.S. Fish and Wildlife Service; and inquired why she did not want to send the letter. He stated he thought when Commissioner Scarborough asked the Manatee Club lobbyist if she would agree to release the permits in areas where signage is complete and she objected that he got the joke. He stated U.S. Fish and Wildlife Service has been illegally holding Brevard dock permits for nearly a year; by law it has 150 days to issue the concurrence letters; and that is black and white, not shades of gray. He stated the Board has every right and responsibility to the citizens of the County to demand that the Service obey the law; this is not a Florida Inland Navigation District problem; it is not a Florida Fish and Wildlife Conservation Commission problem; and the problem exists solely because U.S. Fish and Wildlife Service, in trying to extricate itself from a mountain of lawsuits, has forced the State to install and pay for hundreds more regulatory signs. He stated Judge Craig Manson, who is in charge of the Service, has said the process is broken and chaotic; and he is right. He stated yesterday the General Accounting office released its findings on the critical habitat program for the Service; and it concurred with Judge Manson that the process is broken; yet the Board could not send a letter to the U.S. Fish and Wildlife Service agreeing with the Judge, who would like to have some support in trying to fix the mess. He stated he hopes this issue is resolved today once and for all; he hopes the Board takes a good look at the letter Commissioner Pritchard wrote; and he hopes it sends the letter as it promised a month ago to the U.S. Fish and Wildlife Service, so people can be put back to work and the issue resolved.

Chairperson Colon apologized for Mr. Webster not being contacted since he was the person who brought this before the Board; and stated she did not see him in the audience so she assumed he and Commissioner Pritchard were comfortable with the letter. She requested a copy of the letter that was prepared by staff so the Board can compare the two letters.

Commissioner Pritchard stated the issue with staff’s letter is it says the Board requests that when proper signage is in place that the agency will expedite the permitting; but it could take two more years before property signage is in place; and inquired who is going to determine if the signage is proper. He stated this is just going to continue like this; what is going to happen is the permits are not going to be released for years to come; and it is not serving any purpose. He stated many people who put in docks do not have boats; and they simply want docks to use as patios to sit and enjoy the waterway. He stated one cannot blame a dock for a boat that may or may not strike a manatee; it is like saying if someone builds a garage that houses a car, and the car is in an accident, that there would have been no accident if they had not built the garage. He stated that is what people are using to oppose others from having the privilege and right of having a dock attached to their property; Commissioner Higgs has waterfront property and a lengthy dock; others who have waterfront property have docks; and some have boats while others do not. He inquired how big Commissioner Higgs’ dock is.

Chairperson Colon stated she does not want to get into the whole technical part; obviously there are differences of opinion on this issue; and she would like to see the letter so that maybe the Board can attempt to get a letter out. She stated at one point she thought everybody felt comfortable with the letter from staff; and she cannot make any decision until she has a copy of that letter.

Mr. Webster stated Commissioner Pritchard hit the nail on the head; waiting until the federal government decides there are enough signs before it releases permits is the nut of the problem; when the Board moved to write the letter a month ago, he went to the Tampa Bay Local Review Committee, which was considering fish and wildlife ordinances for all of Tampa Bay; and as a result of what has happened in Brevard County with the federal government coming in post facto and demanding at least 100 new signs and 200 new installations, the committee tabled until March of next year any further action on Tampa Bay until the signage issue is sorted out once and for all. He stated Brevard County is getting stuck on this issue; Craig Manson would welcome support in moving the process forward; it is past time since it has been a year since U.S. Fish and Wildlife acted and followed the law; and he is hopeful the Board will also say it is past time.

Commissioner Higgs stated this discussion should have been placed on the agenda so that all who were interested would have the opportunity to speak; that is why the Board is sitting with some confusion to start with; this was brought up under reports; and she has objected in the past to trying to do business under reports because then everybody does not have the chance to speak. She recommended the item be put on the agenda and the Board not consider a letter today.

Chairperson Colon requested feedback from the Board.

Commissioner Carlson stated as Mr. Webster said, he is present, but now the other side is not present. She stated she can sympathize with the folks who had their permits slowed down; but when she voted the way she did, she thought those permits were going to be released fairly quickly; and if that is not the case, she needs more information, which she cannot get today.

Mr. Webster stated he can answer questions. Commissioner Carlson advised this is not the time; she does not believe in doing business under reports; and this needs to be properly agendaed with everybody present.

Chairperson Colon stated it will be on the October 21, 2003 Agenda; and she will make sure it is put at the beginning of the meeting.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: RESOLUTION ACCEPTING
IMPROVEMENTS AND ADOPTING ASSESSMENT ROLL FOR WOODLANDS
WATERLINE MSBU PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing for November 4, 2003 to consider a resolution accepting improvements and adopting the final assessment roll for Woodlands Waterline MSBU project. Motion carried and ordered unanimously.

AGREEMENT WITH SPACE COAST EARLY INTERVENTION CENTER, INC., RE: USE OF
PLAYGROUND

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Space Coast Early Intervention for use of the therapeutic playground on weekends by the general public. Motion carried and ordered unanimously.

APPROVAL OF POSITION, RE: HEALTH AND WELLNESS COORDINATOR

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the addition of a Health and Wellness Coordinator position; and authorize the County Manager to sign a Senior Resource Alliance Service Agreement for $15,000 after review and approval by the County Attorney and Risk Management. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF ROCKLEDGE, RE: EMERGENCY SERVICES BY CITY AND
DISPATCH SERVICES BY COUNTY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with the City of Rockledge to provide automatic aid to the unincorporated areas surrounded by and adjacent to the City and in return the County will provide dispatching services; authorize the County Manager or his designee to execute renewal options as outlined in the Agreement; and approve Budget Change Request to allocate funding to the Fire Rescue Dispatch Program. Motion carried and ordered unanimously.

AMENDMENT NO. 4 TO AGREEMENT WITH DEPARTMENT OF ENVIRONMENTAL
PROTECTION, RE: SHORE PROTECTION PROJECT GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Amendment No. 4 to Agreement with Department of Environmental Protection for $9,864,675 for the Shore Protection project. Motion carried and ordered unanimously.

APPROVAL, RE: COST OF LIVING AND MERIT INCREASES FOR FY 2003-2004

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize implementation of cost of living and merit increases to permanent non-bargaining unit personnel effective November 22, 2003. Motion carried and ordered unanimously.

APPROVAL OF PAYMENT, RE: EMPLOYEE INNOVATIONS PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize payment of $225 to Marsha Strickland for her suggestion to consolidate armored car transport services, which resulted in an annual savings of $4,661.28. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint/reappoint Ken Pontius to the Planning and Zoning Board with term expiring on October 7, 2004; and Laurilee Thompson to the Tourist Development Council with term expiring on October 7, 2007. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS

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

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE AMENDING SECTION 118-1, DEFINITION OF TERM LIMOUSINE-VANS

Roland Carlson stated he has a problem with the ordinance; he got a $250 ticket and was arrested; the ordinance does not say he can be arrested; and it leaves open a lawsuit again the County. He stated the Commissioners are in office for health, safety, and welfare; he keeps preaching the Constitution to the Board; and it seems like the only ones who understand it are the lawyers. He stated the proposed ordinance says ten passengers and over; and he met with Commissioner Pritchard and explained the problem. He stated he has a vehicle for hire sticker; and he has three inspection stickers on his vehicle. He stated Brevard County does not have inspection of vehicles for hire, but he has stickers from Orlando and Brevard County tags on the vehicle; and other counties recognize his vehicle inspection sticker. He advised taxicabs are regulated under the Florida Statutes for ten passengers for every 1,000 residents; and that is what the County is supposed to go by, but it does not. He read aloud from the Statutes concerning licensing and regulating taxicabs, jitneys, limousines for hire, rental cars, and other passenger vehicles for hire; and issuance of permits by charter counties. He stated there is a violation of due process because he is not given competition in business; he is not a taxi, but a shuttle; and he carries under ten passengers. He stated the proposed ordinance does not say that a seven-passenger shuttle cannot operate in the County; and if it did say that, it would be discrimination and another due process violation. He stated he does not know if the Commissioners swore under oath to uphold and protect the Constitution of the State and the United States; but if they did, that is perjury; when he comes before the Board and is not recognized, or is on the telephone and nothing is done, that is perjury of the Commissioners’ oaths; and it is hard to get perjurers. He stated there are people who do not pay attention to the things they are in office for; when he gets through writing, the County is going to know who he is and what he stands for; and commented on running for Sheriff. He inquired what is the Board going to do about the inspection sticker; and stated it is very important. He stated he pays $50 a year for his inspection; and his brakes get inspected and certified; but there is no certified inspection in Brevard County; and yet, he got a $250 ticket. He inquired how is the Board going to solve that issue; and is it going to make some phone calls for him.

Chairperson Colon inquired if this is under Mr. Lusk’s purview; with Assistant County Manger Don Lusk responding the item was put on the agenda by the County Attorney; and it is including minivans under shuttles so it would be consistent with what the Mall and Port are doing. He stated SCAT does the administrative process of making sure that taxicabs have those kinds of things and issuing of the stickers.

County Attorney Scott Knox stated the item was brought up by Commissioner Pritchard some time ago; he asked for legislative intent to be brought forward to change the definition of minivans and vans as defined in the Ordinance to include vehicles able to carry six to fifteen passengers as opposed to ten to fifteen; and it was something the Port had done in the past because of the ways the shuttles were operating from the Port to various locations.

Commissioner Carlson inquired if staff understands Mr. Carlson’s problem; with Mr. Knox responding he is not sure he understands Mr. Carlson’s problem at this point; and he would probably need to talk with him in more detail.

Commissioner Pritchard inquired what is the sticker for inspection and the $50 payment. He inquired where is Mr. Carlson; with Commissioner Carlson responding he left.

Commissioner Scarborough stated he is going to move to table the item as he is totally confused.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table consideration of legislative intent and permission to advertise a public hearing to consider an ordinance amending the definition of the term limousine-van, to allow the Board to get additional information. Motion carried and ordered unanimously.

Commissioner Pritchard stated the reason this came about is because more of the smaller passenger vans are being used as conveyances; the Port and Merritt Square Mall recognized it as point-to-point destination; and they were not able to use the smaller van as a conveyance because of the point to point destination. He stated that is the intent in lowering it; but as to the inspection part and the $50 fee, that needs more explanation.


RESOLUTION, RE: PROCLAIMING HADASSAH MONTH

Commissioner Carlson read aloud a resolution explaining the function and achievements of Hadassah, and proclaiming November 2003 as Hadassah Month.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution proclaiming November 2003 as Hadassah Month. Motion carried and ordered unanimously.

A representative of Hadassah expressed appreciation to the Board; and presented the Commissioners with booklets relating the story of Hadassah and calendars.

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

Chairperson Colon called for the public hearing to consider a Determination of Substantial Deviation and Notice of Proposed Change #13 to Viera DRI.

Mason Blake, representing The Viera Company, stated this is a continuation of the determination of non-substantial deviation and notice of proposed change #13 that was discussed by the Board at its September 16, 2003 meeting; at that meeting there were some concerns expressed, particularly about the burrowing owls and a density transfer; and they wish to clarify things and move forward, if possible, today. He stated there may have been some confusion about the density transfer; there are a total of 327 units on the east side of I-95 that, based on engineering, will not be built on that side; and they want to shift those units to the west side of I-95. He stated there are not any new units; and this is just a shifting of the density from one side to the other. He stated only 50 of those units are multifamily; and 277 are single-family units, so hopefully that clarifies the density issue. He stated with respect to relocation of the burrowing owl preservation easement, they discussed with a representative of the St. Johns River Water Management District a number of advantages that the new relocated easement will provide; and principal among those is that there will be no surrounding urban development. He stated the owls do not know where the boundaries of the easement are; and this would allow the colony to spread beyond the boundaries of the easement. He stated there are also other advantages; concerns were expressed by Commissioner Carlson that there are no guarantees that the new conservation easement would work; and staff has responded to those concerns with a report. He stated staff drafted a revised Condition 17 to the Development Order, which provides for a number of conditions before there would be a complete transfer of the existing easement to the new easement; over a five-year period of time, those conditions would include a successful relocation of a new colony including two mating pairs to the new easement area, so it is known the new easement area works; and only then would the existing easement be released. He stated they added clarification to staff’s language, which he reviewed with Planner Steve Swanke and County Attorney Scott Knox; he just heard of additional concerns; and the language may need to be tweaked, but there is no contention between staff and The Viera Company in terms of what they would like to accomplish with the revised Development Order condition. He stated there are some minor clarifications, but they think that what staff has prepared addresses the Board’s concern that the easement will work and the burrowing owls will thrive in the new easement area. He stated there is a final issue this morning, Map H, which is the revised master development plan.

Carey Hayo, with Glatting Jackson, stated they have done some very minor last minute changes to Map H; the density transfer Mr. Blake referred to, moving 327 units from the east side to the west side, moved the units to parcel 3; the previous map they submitted had those units on parcel 3; however, they neglected to put enough acreage there to accommodate those units, so they have taken acreage from parcel 2 and added it to parcel 3. She stated the other change reflects some transfers made recently on the east side through the equivalency matrix; through a letter dated September 26 to staff, they transferred some office and retail use between parcels on the east side, which they are authorized to do through an equivalency matrix that is part of the Development Order; so the effort was to true up the map with everything that has happened through today to reflect where they are with the DRI.

Commissioner Scarborough stated when he was briefed, the transfer was a percentage of the multifamily in the portion being transferred as compared to the percentage of what is already on the west side; and inquired about the percentages. Ms. Hayo responded the percentage now is 16% multifamily on the west side; and the movement of 50 units increases it by a tenth of a percent, so it is not significant. Commissioner Scarborough noted it does make a change; with Ms. Hayo responding a small one, 16.1%. Commissioner Scarborough inquired if there is anyway the same ratios could be maintained; with Ms. Hayo responding she is sure they could do that. Commissioner Scarborough stated he would like to see that.

Commissioner Scarborough stated the other question is the idea of the conservation easement for the owls being moved from private to public land; and inquired what type of accommodation is there for that, within the purview of private property having the same percentage of conservation easement since it is going to be moved out of private and into the public sector. Mr. Blake responded the easement is roughly the same size, but they did several things to enhance the project in moving it from private to public land. Commissioner Scarborough inquired if moving it enables more private utilization of lands where they are now and less held in conservation; and stated the Commission has tried to have conservation easements within private lands because there is a benefit from having that type of activity. Mr. Blake stated whether the land will ultimately be built on or not, it is not within the DRI now; and right now all that is permitted is agricultural use. He stated presumably the land could be developed in the future; they knew upfront that the land was going to be affected by the Pineda Extension; therefore, it was built into the DO that they would probably be moving it anyway; and the only difference is, it would move off the private lands. Commissioner Scarborough stated the question is almost identical to the prior question with the shifting of the units from east to west; it is not that there should be no flexibility, but whether it ends up with essentially the same amount of end product, in that case the ratio of multifamily as a portion of the total; and this is whether it ends up with the same portion of conservation easement on private lands, and if not, whether there is a means to effect that with a proviso. Mr. Blake stated at some point in time the land south of the existing DRI is going to be included within the DRI; at that time there will be studies done and a determination with respect to whether there is a need for a conservation area within the additional DRI area; every time they add land to the DRI they are adding conservation areas of one sort or another; but he cannot tell with any certainty at this point whether there will be no net loss of conservation area at the end of the day. Commissioner Scarborough suggested adding a proviso that there will be no net loss of conservation area on private property as a percentage of the total project; and if that was done, they would know at the end of the day that there would be no net loss of the conservation area.

Commissioner Carlson stated she knows the issue of public versus private was a question; but she is not sure if Mr. Knox put any words together as far as the perception of the public easement over the private property. She stated currently the only time an easement would be released would be if over a five-year period they have not been successful in producing a piece of property of the same size with the same number of mating pairs; and the no net loss issue should be worked out. Commissioner Scarborough stated beyond the owl issue, the question is the conservation easement on private property; and if it is released, there would be a lesser portion of conservation easement, and the nature of the project would have shifted. Commissioner Carlson stated the Board is not doing that today; with Commissioner Scarborough responding it is setting the groundwork to do it. Commissioner Carlson stated the conservation easement would have to come back when and if they qualified by making sure the habitat existed on the other piece of property; and she put that out as a compromise to try to work with the developer. She stated the only other clarification would be in terms of the Pineda Causeway; the property is only affected on its edge by any roadway that might occur on the western side of the Pineda Causeway; and it does not affect the Pineda Causeway other than how The Viera Company might access the interchange. She stated she would like to have what Commissioner Scarborough brought up more clearly clarified. County Attorney Scott Knox stated it would require more language than what is there now; the Board did not address that issue; and the proposal is based upon the transfer from the private to the public lands. He noted there was discussion by the Board last time, but no direction to develop a no net loss policy; and if the Board wants to do that, he will have to go back and work on it. Commissioner Carlson stated the question last time was the issue of public and private. Mr. Knox advised the question was phrased whether or not it was a valid transfer and whether it could be done; and the answer was it could be done and nothing prohibits it. Commissioner Carlson stated the Board also talked about the value of the property from the public’s perspective and the monetary savings to the St. Johns River Water Management District by giving The Viera Company certain things; and the net benefit to the public was the key question. She stated that is what Commissioner Scarborough is after; as long as there is no net loss, then the public’s interests are preserved; but if there is a net loss, then the public’s interest is not preserved through the conservation easement or the change of the easement to the other location. She inquired if that is where Commissioner Scarborough is at; with Commissioner Scarborough responding yes, in a general sense.

Commissioner Higgs stated she does not have an objection to the transfer of the responsibility for the conservation area from the CDD to a homeowners association or corporation; but there is a net loss in moving it from the private land to the public land. She stated the public land, even though it is being used for cattle grazing, is public land; a conservation easement on private land is a whole different entity, so there is a loss. She stated while she is concerned, she does not object to the transfer of the responsibility to another entity other than the CDD, she would not support the change of the actual mitigation area over to the St. Johns River Water Management District; there is a fundamental flaw when a public agency owns the land and then becomes the receiver of the mitigation when it could have been used for conservation to start with; and she has a problem with that. She stated she is also concerned about the transfer of the units to the west side; when a DRI is done, it is understood there will be changes; and the moving of 327 units to the other side of I-95 is significant. Commissioner Carlson stated she does not blame The Viera Company for using the mechanism with the Water Management District; she understands The Viera Company is paying for it; but that is not the way a public agency should work. She stated the St. Johns River Water Management District has received mitigation dollars for various projects; but that is not the way it ought to go.

Commissioner Scarborough stated when they consented to keep the 16% ratio of multifamily, that did not answer Commissioner Carlson’s question; and he differs on that. He stated getting into the DRI, the community and market begins to drive the need for differences; he does not have a problem with taking the conservation easement from a place where there may be a need for an interchange for the Pineda Causeway; but when he comes back, he wants to have a feeling that the project is substantially the same in terms of percentages of multifamily and conservation. He stated he is flexible to the point where he can maintain the integrity of the percentages.

Commissioner Higgs stated that certainly has merit; but moving 327 units and the accompanying trips to the other side makes a significant difference in the transportation and other aspects of the project west of I-95. She stated they are losing 117 acres in conservation on the project; and it is moving outside of private lands to public lands, which is where she has a problem.

Commissioner Scarborough suggested obtaining a commitment that The Viera Company would go elsewhere and set aside a conservation area within the private property; and commented on species-specific areas. He stated once an area is maintained, it is maintained in perpetuity from development; and there are communities of life around that will diminish. He stated the Board may not be trying to preserve a raccoon or deer, but people will have those in their neighborhood with the conservation elements; and they will be lost as development is crowded too tightly. He stated the conservation element has a human factor besides just a species factor; and that is why it is supported by a number of people in the community who are not species sensitive or educated to being species sensitive.

Commissioner Higgs stated open space is there for conservation and for the character of the community; and that is what everyone is agreeing to.

Commissioner Pritchard stated open space as a lump is one thing; open space throughout a development is another; and he is more for open space throughout a development than for having cluster housing and then an area which is for the most part inaccessible. He stated he looks at the issue of having conservation easements as simply a taking of private property; and rather than having a lump of 117 acres, he would rather see larger lots and homes, which is going to drive the market. He stated he agrees there has to be flexibility when doing any project; whether the homes are on one side or the other is a decision made by Viera to make the project more marketable; and he has no problem with it. He state moving the owls to the public land is a good use of public land; public land should be utilized and not left fallow; the reason for providing public land is to have the public utilize it in some fashion; but most of the public land is inaccessible or closed. He stated public land should be utilized; an airboat ride through some of the St. Johns River Water Management District projects is a trip worth taking; and inquired if 16.1% was set aside for conservation. Mr. Blake advised that percentage was with respect to the apartments. Commissioner Pritchard inquired if a conservation element can be built into the development itself instead of having just 117 acres set aside as a chunk, and can it be built in some sort of linear fashion. Mr. Blake responded yes, but what they typically do when adding property to the DRI is to have the environmentalist do a detailed study; the property is gridded and walked for plant and animal endangered species; and that information is taken back to staff to work on a design that works best from a professional standpoint in terms of what is needed for conservation. He stated the developer gets the last look; it is fine-tuned; and then it is brought to the Board. Commissioner Pritchard inquired if they are proposing moving the conservation element as a unit to some other location on the Viera property; with Mr. Blake responding they have a burrowing owl preserve; and they are moving that one portion. He stated they are moving a mitigation area; they are not moving land; they are required because of the existing burrowing owls to mitigate; and they mitigated them outside the DRI on Duda land. He stated now they are moving the mitigation area offsite to an existing area owned by the St. Johns River Water Management District that is not currently a conservation area; the land is being used for cattle production; there may or may not be burrowing owls there; and it is not a mitigation area that is currently being managed for burrowing owls. He stated they want to move their mitigation area to the St. Johns River Water Management District’s property; and it will be managed as a mitigation area in perpetuity. Commissioner Pritchard stated they will be creating a habitat there with tunnels, nesting areas, berms, perches, etc.; and if the owls are moved there, it sets up the current area for future development. Commissioner Pritchard inquired is the conservation area still part of Viera’s plan; with Mr. Blake responding conservation areas have been part of the plan from day one; they have not done studies in the particular area other than with respect to the owls; in all areas they have developed they mapped out conservation areas and layered on top of the conservation areas are open space areas, so they cannot be treated separately. Mr. Blake stated conservation areas are open space; but they look at them from the ecological perspective first to see what needs to be preserved based on the existing preservation Ordinances at the State, federal, and local levels.

Commissioner Higgs inquired what assurance does the Board have that the lands that St. Johns River Water Management District owns will be managed in perpetuity for conservation. Mr. Blake responded the management of the easement will be transferred from the existing CDD that they would like to collapse for practical reasons to the Central Viera Community Association, which is a master association covering thousands of acres; and it will manage in perpetuity central Viera in terms of stormwater, landscaping, and architectural control. He stated the easement will be able to be enforced by the County, by the St. Johns River Water Management District, and by the Florida Fish and Wildlife Conservation Commission; and if for any reason the association was dissolved, the dissolution procedures in the Florida Statutes would require that the easement be transferred to another organization that could properly continue to own and manage the easement area. Commissioner Higgs inquired if the St. Johns River Water Management District is giving the Viera Homeowners Association in perpetuity the easement for maintaining the area for burrowing owls; with Mr. Blake responding that is correct.

Commissioner Carlson stated in the briefing she made it clear that she still had questions about the public and private side, and wanted to get to a place where she felt a certain level of comfort; there is the net benefit that The Viera Company receives from mitigation; and then there are the benefits the public receives from the mitigation. She stated the benefit to the public is protected by the Board, which is supposed to be a good steward of the public trust. She inquired if there is any other private land within Duda’s ownership that could be utilized for conservation the same way the property in question is being used. Mr. Blake responded he does not know; there may be; and they started the process 18 months ago in discussions with the St. Johns River Water Management District because at least from the operational level it seemed to make the most sense. Commissioner Carlson stated her interest is in making sure they preserve what they have in terms of the gain that the public received when the mitigation originally occurred; even though the St. Johns River Water Management District’s property that the mitigation would be transferred to is not currently under conservation, everybody still pays taxes to the St. Johns River Water Management District; they are still stewards of those dollars; and therein lies the conflict. She stated she would like Mr. Knox to address some of the issues before she makes a decision on this; and inquired if there is a net loss to the public if the mitigation is transferred to another public entity and is that a legal interpretation Mr. Knox could make. Mr. Knox advised that is strictly a policy call; the issue before the Board today is whether this constitutes a substantial deviation; and if it does, it is going to require further review. He stated if the Board is uncomfortable with the fact that there seems to be a loss of conservation area, it needs to either identify that as a substantial deviation or get some sort of condition or agreement from The Viera Company that will allow the Board to be satisfied that it is not a substantial deviation. He stated the Board can ask Mr. Blake whether there is property that might be able to add as compensation for the loss of the conservation area; and that may be a way to handle it so there is no problem. Commissioner Carlson stated that is what the Board will have to do; the Comprehensive Plan says no net loss of wetlands; but the no net loss philosophy carries through with most everything that has to deal with the public lands and conservation; so there needs to be some shoring up of loss there, but she is not sure how to approach that. Mr. Blake suggested the item be continued to allow them to work on it to see if they can reach a consensus on the Board.

Commissioner Higgs inquired if Mr. Blake wants an agreement on the transfer; with Mr. Blake responding they can wait two more weeks; and if they cannot get there in two weeks, they will parse it down and go for that.

Commissioner Carlson stated she is talking strictly about the conservation area; and she does not have a problem with the transfer of units as long as the percentages are kept consistent. Mr. Blake inquired if the Board can vote on that portion today.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the transfer of 327 residential units from the east to west side of Interstate 95 with the percentage ratio of multifamily to the total remaining the same. Motion carried and ordered; Commissioner Higgs voted nay.

Mr. Blake inquired if they could also get approval of the transfer of the easement from the Central Viera CDD to the Central Viera Community Association. Commissioner Carlson stated she does not have any problem changing that.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve transfer of the conservation easement from the Central Viera Community Development District to the Central Viera Community Association. Motion carried and ordered unanimously.

ANNOUNCEMENT

Chairperson Colon stated under New Business are two items that should be under Items Removed from the Consent Agenda, Items VI.C.1, Task Order 00-16 With S2li, Re: Preparation of RFP For Transfer of Class I Waste From Southern Brevard County to an Out-Of-County Facility and VI.C.2, Infrastructure Cost Sharing Agreement with Towne Development of Island Pointe, Inc., Re: Wastewater Infrastructure; and they will be heard at the end of the meeting.

The meeting recessed at 10:13 a.m. and reconvened at 10:28 a.m.

APPROVAL OF DESIGN PLAN, RE: MARINA PARK REFERENDUM PROJECT

Walter Pine stated five of the members of the committee that was set up for Marina Park are either owners, members, or employees of organizations that desire to use or contract with the County to use the property; and that violates the idea of direct or indirect benefit from the property, and is a conflict of interest. He stated there have been violations of the Sunshine Law; he witnessed three members standing outside a meeting discussing together; and that is a problem. He stated there have been meetings where decisions occurred that have not been public; and there have been violations of the public records law. He noted things have been asked for and not given, not properly retained, and not available; and there have been requests by the committee for legal information that has not been provided. He stated there is no policy, written or unwritten, that would uncover conflicts of interest in the committee members; that is necessary to the good and proper operation of government; and he believes the Board is required to do that. He stated the County has failed to properly maintain a list of the applicants for the committees; the committees have exceeded their authority by making decisions; the Commissioners’ packets today contain two options; he and one other person made proposals; and when proposals are eliminated from the Board’s consideration, that is a decision from committees that are supposed to be advisory. Mr. Pine stated the committee should present all the proposals to the Board and rank them or make comments; but they should not eliminate proposals from consideration because that is a decision. He stated the North Brevard County Parks and Recreation (NBCPR) exempted the Marina Park Committee from having to comply with Roberts Rules of Order, after it was discovered it had violated Roberts Rules of Order; and that is a problem. He stated they refuse to follow established policy and procedures; and commented on votes on the proposals. He stated there are two proposals that are currently active, one of which is not in the Commissioners’ packets; both have been voted on and adopted; and after that the NBCPR altered the proposal by the Marina Park Committee. He stated when failures were reported to Parks and Recreation, they refused to do anything about it; Parks and Recreation misinformed the Board at least once by saying there had been a proposal adopted when no proposal had been adopted. He stated the County has no inspector general or independent investigator; there is no place for the people to file complaints for a proper investigation; and he filed with the court. He stated that case was dismissed, but he intends to refile; and requested the Board join him and direct the County Attorney to join him in putting the record before the court. He stated he is not asking for anything other than for the court to determine whether this has been done in accordance with the law and proper operation of government. He stated that is all he will ask for, other than to get the filing fees to recover the costs, is to have the court decide. He stated if the Board is unwilling to allow the court to decide, he will do it on his own; but it would seem to be in the best interest of the people of the County to insure this was done in a legal and proper manner within the government; and requested the Board postpone its decision until the court has an opportunity to view the record. He stated if the Board believes in good and proper operation of the government this should not be a difficult thing to do; but it is the Board’s choice. He reiterated his request for the Board to support the action before the court.

Thelma Roper stated there are plans before the Board; with some of the plans, there is no guarantee that issues that have come up will not be brought back again in a year or two; and it was convenient that Mr. Gray withdrew his request a week or two before the Parks and Recreation Committee was hearing the City’s plan. She stated if Mr. Gray comes back at a later day and is allowed to use the park, the whole $1.3 million could have been expended already on the park; and if the State determines there has been a violation of the dedication and takes the park, the public will still be paying on that money, but will no longer have a park. He stated it could be left as a park; but she doubts with the interest in the City, that it will be; she feels it will be destroyed and condominiums will be put there; that is what is happening to most of the waterfront in Titusville; and it is something that people do not want to happen on this piece of property. She stated they are going to find a way around it; if the Board goes forward with plan two, that is what will happen; a couple of years after the park is built, all the new stuff will be torn down and condominiums will be put up; and the people will still be paying money. She stated the business will request to use the parking; the City will allow it; the dedication will be violated; and the State will take the land. She stated she does not want to see that happen; she does not want to be paying for property that the people will not benefit from; and if they do not protect it so it can stay a park, they have done nothing except cost money from which they are not getting a benefit.

Roy Crawford, Executive Director of Community Development for the City of Titusville, stated the City supports the recommendation of the North Brevard Commission of plan number two. He stated there has been a lot of confusion about plans one, two, and three; and probably at this point they have looked at approximately 15 plans for the park. He stated they have not made an official presentation to the Community Development Agency for the City of Titusville since the recommendation came to the Board; but they plan to do that next Tuesday. He reiterated the City supports plan two.

Joan Wheeler stated the preferred plan presented by the City was actually presented by the City previously; it enables special interests in Titusville to take advantage of the parking situation; and at the public meetings, the City Council discussed the use of the park with Mr. Gray. She stated all kinds of manipulations seem to have gone on; the County had public meetings with the people and staff members from the City; then the County had private meetings with the City; but no one knows what went on there. She stated they are not happy with the decision to choose the City’s plan over the County’s plan; if anybody thinks that Vectorworks is not going to be back with something, they are foolish; and there is not much that can be said as the Board has probably already made up its mind on how this is going to go.

Ted Beck stated at present he is serving as the Chairman of the North Brevard Parks and Recreation Advisory Board; after numerous meetings by both committees, the Referendum Committee and the Advisory Board, the plan was made with the advice and help of professionals, staff, and architectural and engineering firms; the plans for the ballfields were acceptable to the public and the Little League; and the controversy concerns the parking. He stated they accommodated more parking for boats as requested by the City of Titusville; they tried to use the land for the highest and best use; and the Marina Park Committee voted three to two to accept the plan that is before the Board, Plan number two. He stated this is not a City plan; the plans were drawn up by the staff and the architectural and engineering firms; and after weighing all the facts, they selected the parking to the north and to the south as it accommodated more people for the park while taking into consideration the safety of the users. He stated they are complying with the Referendum Committee as to what was promised to the voters; and the Advisory Board approved the plan five to one. He stated there was one reservation; but the Mayor and the City Manager came to the meeting and promised the outside interest was no longer a player in this. He stated it is in the minutes; the Advisory Board took them at their word; and that is why it accepted the plan. He stated there have been numerous meetings since 2000; and it was suggested they send both plans to the County Commission, but they selected one and sent it to the Board of County Commissioners.

Bea Polk stated for two years she has fought this; she has heard everything; and requested the Board ask the City to sign an affidavit that if parking is given on the north, it is never to be used for any business to park. She stated she has asked where is the proof; she has heard lies in everything she has worked on; and campaigns were easy compared to this project. She stated she has never heard such stories in her life; there were two members who were all for putting it on the south, until they were not reelected; and once they got in, they changed. She requested the Board not vote today and get the affidavit from the City that it will never allow any business to use the referendum money; the City is controlling County money; and this scares her. She stated the Agreement was written up when the City was paying the County to run its parks, not when the County people were paying taxes; and if the referendum was held today in North Brevard, it would be defeated even within the City because people are so upset. She stated the Board should send this back to the City; the City is meeting Thursday; and requested the City be asked to provide an affidavit to the taxpayers in North Brevard saying it will never use the referendum money for parking for private business. She stated the more she watches, the less she likes government; she used to appear before the County Commissioners and they made decisions; and commented on volunteers and advisory board appointments. She stated one man was crucified in open meeting by those already appointed to a board; the board did not want anyone on the board who disagreed with them, so they would not put him on; and what is happening in the County scares her. She stated the people did not elect the people on the advisory boards; every time she turns around, another committee is appointed; and if there is someone on the advisory board who is not liked, they finally get pushed off and someone else comes on. She stated this is not America; the plans should have come before the Board; the Board should have had workshops to decide where the money was going to be spent; and it should not have the City with the final say because she does not believe the agreement is legal after County taxpayers’ money is put into it. She inquired who is going to speak for the people in the County; and inquired if as much money comes from the County as it does from the City.

Commissioner Scarborough responded he would not know.

Ms. Polk stated she does not know for sure; but that is what she has been told. She stated the people have to listen to five people they did not vote for to tell them how they are going to spend the money; but the Commissioners are the ones who put the referendum on, not the City; and now it is time for the Board to stand up and give assurance before it votes to go along with this.

Susan Canada submitted pictures to the Board, but not the Clerk; and stated the Board cannot tie the City Council’s hands; the Council could vote against what it is signing saying another business could not go in there; the Marina Park Committee voted two different times four to one to go with the County plan with parking to the south; and it is only when it met with the North Brevard Parks and Recreation Advisory Board that it voted to go with the City plan. She stated the park was dedicated by the State; she has copies from archives that say no concessions or leases are to go in there; and she has copies of different agreements signed by the cities going back to 1963. She stated the letter from Vectorworks says it found a short-term solution to a portion of its parking, and it was advised by the City Councilmen to pull out for now. She stated even Mayor Swank said that at this time Vectorworks is not going to be going in; but he never said the company was not coming or that any of the other corporations would not at a later date. Ms. Canada stated when she asked Roy Crawford and Ron Swank at different times why they were insisting on parking to the north if Vectorworks had withdrawn, she was told they wanted to leave their options open; and advised of comments she heard when she finally got on the Marina Park Committee for the last meeting. She stated there were two appointees to one board that were not reappointed after being very adamant about no parking on the north; but when they changed their views, they were reappointed. She stated she asked Roy Crawford what the three criteria are that the City wants in the plans, and was told (1) to protect the marina, (2) the boat ramp, and (3) Little League and other uses were separated; and the plan with the parking to the south met all the criteria. She noted actually both plans met all the criteria. She stated she was told if they had parking on the south, it would be a bottleneck when the boaters come in; but she does not often see boaters coming in at the same time. She stated when Vectorworks gets out, there is a problem with bottlenecking if the parking is to the north; everybody says that Vectorworks only works day shift; however, she was there on October 1 at 10:20 p.m. and the second shift was going on the Vectorworks property. She compared the safety of the City and County plans with parking to the north and the south; and stated under the City plan it would be necessary to watch out for traffic on Marina Road, boat parking to the south, and other parking to the north; and there would be more traffic. She stated the County plan is much better safetywise. She stated there are four corporations out there, Sea Cat Boats, Vectorworks, JStar Group, and Vectorwork Marine; and if they are out of room, they should quit moving more in. She stated the pictures show all the trash along Marina Road and in the south parking lot; someone said the distance is longer in the County plan; however, the distance is the same no matter which way one goes with the quad plan. She advised there is a second park; one of the urban spaces the City is talking about moving a business to would take away some parking spaces; all the referendum money is doing is fixing up someone’s backyard; and the Board could use eminent domain as this is considered a blighted area, and the whole area could be a park. She requested this not be made into an industrial park and keep Marina Park.

Commissioner Scarborough stated when he was on the Titusville City Council, the City wrote a check to the County for a couple of hundred thousand dollars; it became easier to keep track, rather than having to allocate out of general revenue, to have an MSTU that crossed into the City lines; so in North Brevard, there is an MSTU, and from that evolved certain basic arrangements. He stated the County was going to take care of parks; the City wanted the County to take care of the parks because the people in the City were being taxed; and the City always has the option to decide which parks would fall into the agreement. He stated as they progressed into the referendum, there were numerous meetings with the City Council; the scope and shape were fully known by the City Council; and shortly thereafter a proposal was made to abandon the entire park and move recreation to inland locations; and this met with a great deal of resistance because while this does have a recreational area for youth sports, it also has things like boat launching and a waterfront component. He stated waterfront in District 1 is limited; and there was a tremendous amount of objection to the proposal. He inquired how many meetings of the Park and Recreation Board have there been; with Parks and Recreation Director Charles Nelson responding between 35 and 40. Commissioner Scarborough stated proposals went back and forth; the City then removed five acres from the north and was going to give that to Vectorworks; but then there was a problem with the deed from the State that says it has to be used for public purposes. He stated although there is parking on the north end, which would be adjacent to Vectorworks, it is now divided by a wet retention and fence; there would be extensive landscaping; and a person would have to go around quite a bit to get from the parking to Vectorworks. He stated he has listened to the concerns; and inquired if there is a way to mark the parking so it shall be used strictly for users of the park. He stated cars are towed at the courthouse if someone parks in the wrong place; and inquired if there would be towing capacity for someone who comes in and crowds out the Little Leaguers. He stated if someone was parked across from the marina, there might be safety problems getting children into the park if a corporation had utilized all the parking. Mr. Nelson responded the County Park Ordinance allows the County to identify parking specifically for the park users and offsite uses could be controlled. Commissioner Scarborough stated they have come a long way from the moment when they thought they would have to go back out with another referendum because there was a drive for the City to take this off the drawing board and allow it to become totally commercial; the Board could get involved in the advantages and disadvantages of having parking in the two configurations; people have come in and talked on both sides; the activity of people with large boats on trailers may have a greater propensity to be more of a hazard; and the parking to the north does have some advantages. He stated the issue of some corporation using the parking lot can be handled with signage and the capacity to tow; and he is prepared to look at the recommendation that has come through this extensive process.

Commissioner Pritchard stated Mr. Pine mentioned there were four plans; and inquired what happened to plans three and four. Mr. Nelson responded there were actually more than that; there were probably between 10 and 13 plans that were discussed; as a plan was brought forward and discussed, it was modified, which made it a new plan; the Committee went through the process of looking at a variety of plans; and they continued bringing plans forward that were modifications of previous plans. Commissioner Pritchard inquired if it was the Committee that whittled it down to two plans; with Mr. Nelson responding yes. Mr. Nelson advised the Committee heard a presentation from Mr. Pine related to his plan; to what extent the Committee incorporated any of those plans and concepts, he is not sure; but it was never formally addressed as a specific plan although the Committee did receive a copy of what Mr. Pine had drawn. Commissioner Pritchard stated Mr. Pine also raised the issue of proper conduct; and requested Mr. Nelson or Mr. Knox address that question. Commissioner Scarborough suggested Commissioner Pritchard may have to ask Mr. Pine. Mr. Pine stated there are a number of issues under proper conduct; some of the individuals who were appointed to the Committee have conflicts of interest by either wanting to use the park, intending to contract to use it, or in the case of one organization, already in contract with the County on another similar park; and in addition, there was the issue of government in the sunshine. He stated he is talking about people standing outside the meeting discussing things and silent discussions behind the podium; and it got so bad at one point that Mr. Nelson asked that they use their microphones. He stated there are situations where the proposals the Board has in front of it were not voted on properly; one proposal was voted on, and at the next meeting the Committee voted on another proposal without rescinding the first approval; according to Roberts Rules of Order, when something is tabled the body cannot do anything with it until the next meeting; but the Committee declared that Roberts Rules of Order did not apply to the Marina Park Referendum Committee, and voted on it again. Mr. Pine stated the Committee exceeded its authority by making decisions; the Committee eliminated proposals; he is not talking about modifying proposals; but when some proposals are no longer considered, that is a decision, not advice. He stated proposals could have been put in the packet with recommendations that some should not be considered; that is well within the bounds; but to take it out of the packet and leave it out is a decision. He stated the Committee refused to follow established policy; there are specific ways that things are to be accomplished; but that was not done at these meetings. He stated no due process existed there; and even when he showed in Roberts Rules of Order how things should be, the Committee decided that did not matter, which is not right. He stated if an individual reports this to the chain of command, they do nothing about it; there is no independent investigative authority in the County for these types of improper behaviors; and the only place individuals can come is to the Board. He stated people were appointed over those who were alternates; when the person representing skating resigned from the Committee, the alternates were not considered; and the Committee got another person representing skating. He stated the alternate should have been considered; Ms. Canada was passed over because he filed suit, which is wrong; but she was put on the Committee at a subsequent meeting. He stated they refused to put him on the Committee because he had filed suit; even when the suit was dismissed, he was not appointed because he might refile a suit. He stated if he had been appointed and able to put things on the record, he probably would not have refiled; but now he has no choice. He stated just about everything that could go wrong, has gone wrong; and inquired how to approach this. Mr. Pine noted he was personally slandered on the record by the Chairman of the Committee as an attempt to keep him off the Committee.

Ted Beck stated there was controversy about Committee appointments, so they requested the County furnish an attorney for the meetings; and they took advice from the attorney. He stated they tabled the appointments for one meeting; and then at the next meeting they appointed Susan Canada to the Marina Park Committee, so there would be a quorum. He stated they withheld appointment of Mr. Pine to the Causeway Committee and the Marina Park Committee because there was still litigation; and they did so on the advice of the attorney, and did not arbitrarily take it on themselves.

Chairperson Colon stated the charges concerning the Sunshine Law are serious; and inquired if Mr. Beck can enlighten the Board about any kind of discussion. Mr. Beck responded he is not aware of any discussions outside the meeting; and he did not participate in any. He stated they were continuously reminded of the Sunshine Law by Mr. Nelson, and they were monitored; people in the parking lot could be talking about anything; but he is not aware of any Committee members getting together to discuss anything.

Commissioner Pritchard inquired if the attorney who was present at the meetings was one of the Assistant County Attorneys; with Mr. Beck responding yes. Commissioner Pritchard inquired if the attorney was present at every meeting; with Mr. Beck responding the attorney was present, at his request, at the two meetings about the appointments to Marina Park and Causeway Committees. Commissioner Pritchard inquired if it would be typical for such a committee to have a representative from the County Attorney’s office present; with County Attorney Scott Knox responding it depends on which advisory board it is. Commissioner Pritchard inquired if it would be appropriate only to attend this Committee’s meetings upon request; with Mr. Knox responding traditionally they have only gone when requested. Mr. Nelson stated it has only happened approximately a half dozen times in 14 years with all the different boards; and it is rare to have an attorney present for discussions. Commissioner Pritchard inquired if Mr. Beck felt it necessary to have a legal opinion based on the meeting before where issues were contentious; with Mr. Beck responding that is why he requested an attorney be present. Mr. Beck stated anytime he sees a controversy, which might lead to a legal problem, he would request legal representation from the County; but normally the advisory board meetings do not have these controversies.

Commissioner Scarborough requested Ms. Canada speak. Ms. Canada stated first she was appointed as an alternate, then she was voted on to be on the Committee, which seems redundant. She stated there were several violations of the Sunshine Law; when she was being appointed to the Committee one woman said, “Oh no, here we go”; and a man sitting next to her advised, “Don’t worry, everything will be okay. Everything has been decided, and she can’t make any difference. She can’t do anything.” She stated outside of the room on break time, everyone was discussing everything. She stated the signs for parking are nice, but she could go to the park, eat a doughnut, go to work, come back, eat a doughnut, and get in her car, and she could not be towed.

Mr. Nelson stated traditionally they try to have the users of the facility on the committees as they have a better understanding of the needs; and the North Brevard Parks and Recreation Board outlined what the membership would be.

Chairperson Colon inquired about the plan. Mr. Nelson stated the mission the Board gave them was to create plans; they came up with two plans; both, outside the Vectorworks issue, are good plans; and the North Brevard Parks and Recreation Advisory Board selected one.

Commissioner Scarborough stated the Board has two options; it can take the recommendation of the Advisory Board or it can ask Mr. Nelson to prepare the advantages and disadvantages of the two plans; and he got the plans in a larger format. He stated at this moment the Board is incapable of making an informed decision on the advantages and disadvantages; the Parks and Recreation Advisory Board is there only to maximize the utilization of public lands for public purposes; and the utilization by a third party commercial interest can only be contrary to and detrimental to the public use. He stated if the Board wants to have Mr. Nelson come back with the large plans and the advantages and disadvantages, he would be willing to do that; and then the Board could vote on the actual plans. He stated the decision today is whether to proceed with the recommendation of the advisory board or to take it under further advisement; and he is willing to go with the decision of the Board.

Chairperson Colon inquired which plan Commissioner Scarborough feels comfortable with; with Commissioner Scarborough responding at this time he is comfortable with the plan that has come to the Board if there is assurance that it will not end up like the scenarios that have been painted; Ms. Canada has some concerns with it; and he does not know if the parking can be enforced; but he wants to be sure that, when the Little Leaguers come, there is no a full parking lot because the plant to the north is using it. Chairperson Colon inquired if Commissioner Scarborough is comfortable with plan two; with Commissioner Scarborough reiterating as long as the County can actively enforce the parking as being for park users.

Commissioner Pritchard stated he likes plan one because it has a separate driveway for the boat ramp area; plan two has a single driveway for the boat ramp area adjacent to the field, so there will be Little League parking there as well as boats on trailers coming in and out; and that creates a dangerous situation. He stated plan one has two separate driveways; the first one leads into the boat ramp area, and the second one wraps the Little League field; the safety issue of the two driveways is most important; and plan one eliminates the opportunity for the business to the north to use the parking. He encouraged the addition of a landscape buffer on the northern end similar to what is shown on plan two; stated plan one has the safety aspect of two separate and distinct driveways; and it would behoove the Board to have a separate parcel dedicated to the boating community so there is no worry about Little Leaguers and others being in the way of boat traffic and vice versa.

Commissioner Higgs inquired if there must be agreement between the City and County on the plans, and does the City have the ability to stop the County from moving forward. Mr. Nelson responded the City must agree on the plan that is built; the Interlocal Agreement says that the City has the ability to approve whatever is constructed over $5,000 on what is, in effect, the City’s property; the property was given to the City by the State; and the City has the control. Commissioner Higgs inquired if the City has indicated it would approve the plan with all the parking to the south; with Mr. Nelson deferring to Mr. Crawford. Mr. Crawford stated they have not presented that particular plan to the CRA or the City Council, and the Board does not have the City’s plan in its packet today; he and Mr. Nelson and their staffs have worked on this; and there were probably 10 to 12 different plans. He stated what the Board has is a combination of the City’s plan and the County’s plan; the North Brevard Parks and Recreation Board took the best of both and put them together; and that was the group’s recommendation. He advised it has not been presented to the City Council; they will give it to the CRA, which is made up of the City Council and two citizen members, at its Tuesday night meeting; and he can report back to the Board. He stated one thing the City was asking for was to separate the two parking areas; boat parking was separated from the Little League parking to the north; the boat landing is used heavily on the weekends; and with all the rules and regulations on boats in the river, the City thought it was a good idea to protect that boat landing for future use.

Commissioner Higgs stated in the usual development of park plans, the consultant meets with the committee when it develops a plan, and brings it back; and inquired was plan one that has the parking all on one side the first attempt by the consultant to give a layout. Mr. Nelson responded yes, it was the first plan to be received favorably by the Committee; one of the first versions of the plan had a shared access to the boat parking and car parking; when the number of boat parking spaces was expanded, it was necessary to separate the two; and that was the plan that the Committee was then prepared to send forward. He stated there was comment by the City at these meetings; and that evolved into their plan, which separated the two uses with the parking on the north and the boat parking on the south. He stated they were directed by the Committee to come up with a plan that represented a good park design utilizing the separation the City asked for, in other words with the parking on the north that was more user friendly to the Little League versus any adjacent properties. Commissioner Higgs inquired as a matter of planning of parks, has there generally been separated parking or is all of the vehicle use generally concentrated in one area; with Mr. Nelson responding it is not unusual to separate the uses. Mr. Nelson advised it comes down to a choice of what the uses are and how they may interact with each other; and whether it is Little League parking in the boat parking area or boats parking in the Little League parking, those issues will have to be addressed.

Commissioner Scarborough stated both plans have separate entranceways for parking for the boats; and he would like to table this item and request Mr. Nelson provide the Board with large plans and a list of the advantages and disadvantages of each plan. He stated Commissioner Pritchard has expressed a preference for plan one; and there seems to be a desire for the Board to have a full discussion. He stated Mr. Knox advised there may be need to amend the Interlocal Agreement; and requested Mr. Knox provide a report because that could influence his vote. He clarified they could not restrict the parking to park users without having amendment to the Interlocal Agreement; and requested Mr. Knox come back with a memorandum that would be considered by the Board. He stated he will wait to make a motion to table as there is indication others wish to speak.

Chairperson Colon stated she thinks the Board is good; and she just called Mr. Crawford up to make sure the City is part of the discussion because they were talking about Interlocal Agreements.

Commissioner Scarborough stated this adds another wrinkle to it because not only would the Board be sending a plan, but it would be sending an amendment to the Interlocal Agreement; that adds to the complexity of going with plan two because there is a need to preserve the integrity of the parking; and suggested Mr. Crawford be part of the commenting process on the advantages and disadvantages and the City’s posture on both as it is considered the next time before the Board.

Motion by Commissioner Scarborough, to table consideration of the design plan for the Marina Park Referendum Project for additional information and additional discussion.

Chairperson Colon stated she supports tabling the item.

Commissioner Carlson stated she was concerned about the Interlocal Agreement; and commented on the philosophy of the Board concerning sharing property in a park setting with a commercial establishment. She stated the Board may need to look at all Interlocal Agreements if there are issues in that regard; but first it needs to address the Interlocal Agreement with the City of Titusville; and if the City is not willing, then they are nowhere. She stated plan two might become a great plan; but the City still may not appreciate it for what it is because it does not service the City’s purposes; and the City has the final say.

Mr. Crawford stated the City Attorney has not raised the question of the Interlocal Agreement; if Mr. Knox and Mr. Severs were to talk, they probably could resolve this easily; there is no proposal on the table from a business to utilize any part of the park; and the developer is accommodating his current needs on his own property.

Chairperson Colon requested Mr. Crawford relate to the City that the County is willing to work with it; and requested the County Attorney meet with the City Attorney to figure this out so the Board will be able to proceed at the next meeting. She inquired if the issue can be brought back on October 21, 2003. Commissioner Scarborough inquired if staff needs a month or two weeks; with Mr. Nelson indicating staff can be ready at the end of October. Chairperson Colon stated that would be the October 28, 2003 meeting.

Commissioner Pritchard inquired what happened to the City’s plan; and stated it sounds like there is another plan that has not been presented. Mr. Crawford responded the City did a plan that met a lot of goals that the City Council was looking for; it was a conceptual plan; and it was not an engineering plan by any stretch of the imagination. He stated what they were trying to show the Marina Park Committee was that there were other options that would incorporate a lot of different things; that plan went to the Marina Park Committee and was considered by the North Brevard Parks and Recreation Advisory Board; the professional staff was directed to take the best of City and the County plans; and that is plan two in the packet today. Mr. Nelson advised the plan that was approved by the North Brevard Parks and Recreation Advisory Board is a representation of that direction to incorporate. Mr. Crawford stated the Mayor advised plan two is not what the City was looking for; but he thinks the City would support what is in front of the Board. Commissioner Pritchard inquired if that is either plan one or plan two; with Mr. Crawford responding the recommendation of the North Brevard Parks and Recreation Advisory Board. Commissioner Pritchard inquired if the City is supporting plan two; with Mr. Crawford responding yes.

Commissioner Pritchard inquired if the motion is to bring back both plans with the pros and cons. Commissioner Scarborough responded Mr. Nelson needs to provide the Board with the larger plans and advise of the advantages and disadvantages of each plan; there are a lot of complexities when there is limited waterfront; and advised of various uses of such property including commercial activity. He stated there is a need to assure the people there is not going to be a loss of parking with plan two; Mr. Knox has advised of the need to touch on the Interlocal Agreement; and he is glad the Board had this discussion because it has been beneficial.

Commissioner Pritchard inquired if both plans will be coming back with pros and cons; with Commissioner Scarborough responding the Board has the option of doing a combination of plans and amending the Interlocal Agreement.

Chairperson Colon advised of anticipated changes to the Board schedule; and stated the Board will be seeing this on October 28, 2003.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table consideration of the design plan for the Marina Park Referendum Project for additional information and additional discussion to October 28, 2003. The Board reached consensus to table the item to October 28, 2003.

Chairperson Colon advised anyone who has not met with any Commissioner and the City should do so.

SPEED HUMP REQUEST, RE: ALCAZAR AVENUE

Jim Wojcic stated the neighborhood is the southwest area of Fay Boulevard; he lives on Covina Street; and they applied for speed humps in 2002, which was followed, at the recommendation of the Public Works Department, by a petition for speed humps on Alcazar Avenue. He stated the thinking was humps on Alcazar Avenue, which runs north and south, would stop the through traffic coming east and west on the side streets and alleviate the problem. He stated there are speed humps on Erin Street, which is behind Covina, so traffic funnels down Covina and then down Alcazar. Commissioner Scarborough inquired if Mr. Wojcic is talking about Alcazar Avenue; with Mr. Wojcic responding yes, originally they were applying for Covina Street, but staff thought it was better to put them on Alcazar. Mr. Wojcic stated they have limited sidewalks in the neighborhood; there are elderly people and children walking in the street; and some cars come down the street doing 45 mph or 50 mph. He stated they have been working for a year to get speed humps.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the installation of four speed humps on Alcazar Avenue in Port St. John. Motion carried and ordered unanimously.

SPEED HUMP REQUEST, RE: BRYANT ROAD

Commissioner Scarborough stated Mr. Thompson made a comment about how much the traffic was exceeding the speed limit. Traffic Engineering Director Dick Thompson advised there were three detectors out for speed and volume; at the first and second sites, there was only one vehicle exceeding the speed limit by greater than ten mph; at the third location there were no vehicles greater than 10 mph at peak hour; and since there are so many requests in Port St. John, it could be considered there are other areas with greater problems than this area. Commissioner Scarborough stated those who were exceeding the speed limit were exceeding by minimal amounts. Mr. Thompson stated the 85th percentile on the roadway was 26 mph, 27 mph, and 24 mph; and the posted speed limit is 25 mph, so it is very close. Commissioner Scarborough stated there are limited funds for speed humps; and they should be allocated to those areas where the problems are greatest.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny installation of speed humps on Bryant Road in Port St. John. Motion carried and ordered unanimously.

SPEED HUMP REQUEST, RE: ST. GEORGE ROAD

Commissioner Pritchard stated he wonders if people realize what they are getting into when they put a speed hump in their neighborhood. He stated in this request there is 77% approval of the speed humps; and he will not go against their wishes if funding is available.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve installation of three speed humps on St. George Road in Merritt Island. Motion carried and ordered unanimously.

Chairperson Colon inquired about the policy concerning speed humps to give people flexibility. Transportation Engineering Director John Denninghoff responded staff is working on that now; and they hope to have it complete before the end of the year. Chairperson Colon inquired why is it taking so long; with Mr. Denninghoff responding staff was looking at the entire Policy to see if there are any other changes that should be made; but if the Board only desires the one change, that can be done quickly. Chairperson Colon stated she would prefer to concentrate on the one change; and inquired if staff would be bringing the whole package back by the end of the year; with Mr. Denninghoff responding yes.

DISCUSSION, RE: AMENDMENTS TO AGREEMENTS FOR SPECIAL MASTER SERVICES

Janis Walters stated the County needs different and better special masters; it needs special masters who will follow the procedures in Chapter 162 as written; it needs special masters who will apply the County Code as written; and it needs special masters who will assure that all witnesses are properly sworn and identified on the record before giving testimony. She stated the County needs special masters who will not accept improper forms of delivery on legal notice to appear, improperly executed affidavits, or third-party or hearsay testimony on the actions of others; and it needs special masters who will not assess for average or estimated costs instead of actual costs. She advised she has an affidavit, which was submitted by the County and accepted by the special master; outlined the four reasons the affidavit is deficient; and stated one would hope the special master would have noted at least one of the defects, but he did not. She stated special masters are needed who, when they request written argument, read it and address the points raised in it when preparing the order; and special masters should not execute orders pre-written by County staff without giving the respondent an opportunity to read and challenge it beforehand. Ms. Walters stated special masters should assure due process as required by Chapter 162, who are fair and consistent in their hearing procedures, and who will not tolerate abuse of the process unless one party challenges the abuse. She stated special master hearings are quasi-judicial just like County Commission meetings; and in making appointments, the Board delegates a portion of its authority to the special master. She noted the Board does not just agree with everything staff puts before it; the job of the Board is to look out for the best interests of the taxpayers; and commented on the procedures of the Board. She stated the current special masters have demonstrated that they are not willing to put forth the necessary effort to do their part of the Board’s job with due diligence; unless and until the County can find candidates who will do the job properly, it may be better to return to a Code Enforcement Board; and the contracts with the current special masters should not be renewed.

Curt Lorenc stated the Board is being asked to reposition some of the special masters; some are being given two areas of interest; and that is dual office holding under the Constitution and not allowed. He stated the Board is obligated by Statute to appoint special masters as far as their knowledge of the particular area; it needs to be done solely by the elected Board and cannot be delegated to staff; and if the Board is repositioning, it should give everyone in the County who would be interested in applying for the job an opportunity. He stated for the past six or seven years, the County has been using the special master process; and it has operated without hearing rules, which has denied approximately 6,000 people due process. He stated staff has been writing the complaint against the citizen and writing the decision for the special master prior to the hearing; and this is not the way to have a fair and impartial hearing process. He submitted paperwork to the Board, but not the Clerk. He stated the first paper shows a law firm; one of the members of the law firm is one of the special masters; and he has minutes to show that some of the partners are representing private clients in front of the County. He stated he has a binder three inches thick of the number of times partners have represented clients; and this is a possible conflict of interest. He stated one of the attorneys is also the attorney for the Titusville Airport Authority; the Board regulates the millage of that particular board; and if the law firm is the attorney for that Authority and also acts as special master, that is not right. He presented documentation where a special master found someone guilty who had built a porch and had a building permit, a person who had built a pole barn as allowed under AU but was found guilty, and a man incapacitated by a stroke and unable to attend the hearing who was found guilty; and stated performance is poor when they are convicting a large number of people who are innocent. He stated the process is not working well; it was only supposed to be a temporary process; but it has been implemented permanently without people being able to speak to the issue. He recommended saving the taxpayers some money by going back to a Code Enforcement Board.

Bea Polk inquired how much money could be saved; and stated taxes keep going up. She inquired if the County Attorney’s office could represent this instead of having to pay for a special master; and stated the County keeps growing, but the people are getting poorer. She inquired again how much would it cost if special masters were not used, and can one of the County Attorneys serve as special master.

Chairperson Colon requested all the questions be asked of the Board because she will not have a debate.

Ms. Polk inquired how does the Board agree on how to appoint the special masters; and requested Chairperson Colon find out how many problems there are. She noted she has been invited to meetings in North Brevard about some of the stuff that has happened; and the Board should check on what is going on. She stated it is hard for taxpayers to get answers; they have to come to the Board; and if she cannot get the answers now, she would like them in writing.

Central Services Director Steve Stultz stated the special master cost is approximately $7,200 for the Code Enforcement section in the last fiscal year and approximately $3,600 for the unlicensed contractor special master services. County Attorney Scott Knox stated a County Attorney cannot serve as special master as it is a conflict of interest; his office represents the Board of County Commissioners and prosecutes cases; and they cannot serve in both capacities.

Commissioner Carlson stated if there was a Code Enforcement Board that reviewed the cases, the County Attorney could act as legal counsel; with Mr. Knox advising no, the Board would have to hire someone else because the County Attorney’s office would be prosecuting cases and he could not serve both masters.

Commissioner Higgs stated the motion was to have a special master for building code compliance; and inquired if there is something else Mr. Capps and Mr. Soileau are being used for that has not had a motion. Mr. Stultz advised the original agreements indicated there would be a special master for unlicensed contractor and a special master for the Code Enforcement area, and each of the special masters serve as alternates for each other should there be a conflict of interest. He stated prior to developing the Agenda item, they contacted both of the special masters to verify they would have an interest in continuing services should the Board approve an extension; and Mr. Soileau indicated a preference to act as an alternate for both areas. He stated in the amendments they have indicated that Mr. Capps would be special master of both areas and Mr. Soileau would act as alternate.

Commissioner Pritchard stated the Board spent approximately $10,800 on the services; and inquired what other option does it have. He stated it should not go back to a Code Enforcement Board; and Mr. Soileau and Mr. Capps are doing what the Board asked them to do. He stated he does not like surrogates; this is a move on another issue; and it is a back-door way of getting rid of John Soileau in particular. He stated the Board has already gone through that; they are doing a good job; it is a reasonable price; and they should continue.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Amendment to Agreement John L. Soileau to act as Alternate Special Master for one year; and Amendment to Agreement with Stewart B. Capps to act as Special Master for one year. Motion carried and ordered; Commissioners Higgs and Colon voted nay.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to provide a report on the issue of Code Enforcement Board versus special masters.

Commissioner Scarborough stated one of the problems with the Code Enforcement Board was that it was becoming created and making decisions based on what it wanted or thought it should be as opposed to what the Code is; and that led to some problems. He stated he supports the motion for discussion purposes, but will not be in favor of returning to a Code Enforcement Board.

Commissioner Higgs stated she remembers the problems they were trying to solve with the special master; but she would like to get the report from staff.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Pritchard stated he does not see a need for this; and it may be just trying to create a roadblock to doing this professionally, which is the way it is currently done.

Commissioner Carlson stated Mr. Lorenc handed the Board information; and questioned whether Mr. Lorenc meant to include one submittal; with Mr. Lorenc responding he did not.

ANNOUNCEMENT

Chairperson Colon stated the Board has an 11:30 a.m. executive session, although it is not shown on the Agenda; and requested in the future that be shown on the Agenda.

AGREEMENT WITH ECONOMIC DEVELOPMENT COMMISSION OF FLORIDA’S SPACE
COAST, RE: SERVICES FOR FY 2003-2004

Commissioner Scarborough stated he talked to Lynda Weatherman as part of the activities with MyRegion; Ms. Weatherman was at a meeting at which they had representatives of academia as well as industry; and there was extensive discussion on the tremendous value that knowledge plays in the role of economic development. He stated from that, the thought occurred that while there are different clusters of excellence beginning to occur in the academic institutions, such as laser optics at the University of Central Florida and certain unique things that are being spun off from Harris Corporation, the capacity to create a greater synergy is not being optimized; and it could be, with such things as collectively endowing chairs in research and attracting the top minds to lead the additional knowledge basis. He stated he talked to Ms. Weatherman about it; the EDC could act as a catalyst to facilitate a greater synergy between academic research at universities and private industry, and work on such endeavors as having private industry endow special chairs at the universities; and there were several hundred people who were most interested in that type of activity. He stated this is something that will not have meaningful results immediately; but if there were some major breakthroughs, it could slip the area into a higher level.

Commissioner Carlson inquired if this is something that should be included under scope of services; with Commissioner Scarborough responding yes. Commissioner Carlson inquired if Commissioner Scarborough has language he wants to include; with Commissioner Scarborough responding he just said it, and Ms. Weatherman understands. EDC Executive Director Lynda Weatherman advised she understands.

Motion by Commissioner Carlson, to execute Agreement with the Economic Development Commission of Florida’s Space Coast for services for FY 2003-04, modifying the scope of services to include having the EDC serve as a catalyst to enhance synergy between academic research and private industries to strengthen linkages through mechanisms such as endowments.

Commissioner Pritchard stated in a prior report, Ms. Weatherman advised of return on investment. Ms. Weatherman stated looking at the last three years, the return on investment was $31 to $1 invested. Commissioner Pritchard stated he wants to make sure that based on subjective criteria, the EDC is not taking credit for the sun coming up in the morning, but that it can really reflect what the EDC has done and derived a return on the investment. Ms. Weatherman stated those are jobs that have been created in which the EDC had a role; it developed the file, met with the clients, worked with existing companies, and everything like that; and she would be happy to sit down with Commissioner Pritchard and go through some examples. Commissioner Pritchard stated Ms. Weatherman has done that; and in the next quarterly report, he would like to focus on the return on investment.

Commissioner Pritchard seconded the motion.

Commissioner Scarborough inquired if the motion includes his language; with Commissioner Pritchard responding yes.

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

AGREEMENT WITH CITY OF PALM BAY, RE: AUTOMATIC AID FOR I-95 CORRIDOR

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to execute Agreement with the City of Palm Bay for automatic aid for the I-95 corridor; and authorize the County Manager or his designee to execute renewal options as outlined in the Agreement. Motion carried and ordered unanimously.

The meeting recessed at 12:00 noon and reconvened at 1:16 p.m.

DISCUSSION, RE: EXECUTIVE SESSION ATTENDANCE

Chairperson Colon stated there was a request from a citizen who wanted to attend the executive session; she informed him that was not allowed; and she suggested he put the request in writing or come before the Board. She stated she brought this to Mr. Knox’s attention; and it is also in the executive session minutes.

County Attorney Scott Knox stated executive sessions are exempt from the Sunshine Law; and if the Board chooses not to have citizens attend, which is what is normally done, they are not allowed to come. Chairperson Colon inquired when was the executive session approved. Mr. Knox advised Mr. Pine has asked for a copy of the notices; and he will provide them to him. Chairperson Colon stated it should also include when the time certain was approved; with Mr. Knox responding he can find that out as well.

Commissioner Higgs inquired when will the record from the executive session be available for the public; with Mr. Knox responding at the conclusions of the cases.

APPROVAL OF INTERLOCAL AGREEMENT, RE: SALES TAX CITIZENS OVERSIGHT
COMMITTEE

Walter Pine stated he opposes the current plan for choosing members of the Sales Tax Citizens Oversight Committee; it is heavily weighted toward the municipalities; and suggested choosing another plan. He stated there are a number of options; the panel could be split with half chosen at random or all could be chosen at random, making sure that each District has equal representation; and the current method does not give each District equal representation because those Districts with more cities get more representation. He stated the best of all worlds would be to decide how many people the Board wants on the committee, divide it with fair representation of the Districts, and then choose them at random from the applicants, insuring no applicants have conflicts of interest. He stated there is no doubt when there is a group of people appointed by various political organizations that politics get involved; since this is an oversight committee, it is important to keep politics out of it; and a random selection process would do that. He requested the Board reconsider and not choose this particular distribution of membership, which is not representative of the general public. He stated there are many people who will not receive adequate representation; people in the County will have a few representatives from the County, a few from the School Board, and a couple of others; but the people in the cities will each have three representatives; and that is not a fair distribution. He recommended some form of random selection be used so this does not occur; stated when other people are choosing the representatives for oversight, it is not possible to insure there is no conflict of interest; and the Board has a duty with the oversight to insure there are no conflicts. He stated in some manner the Board should exercise control and preclude or prohibit conflict of interest; and one method would be to take half of the representation and allow agencies and entities to appoint them, and then choose half or all by random. He encouraged the Board to do something to provide equal representation for the various districts and preclude conflicts of interest.

Thelma Roper stated this item caught her eye; she has not been positive toward the sales tax referendum; but if it is going to go through, there is going to have to be an oversight committee. She stated there are people in the County who pay close attention to the facts and figures; and several of these should be placed on the oversight committee. She stated they let the Board know when money is not being spent right or when there are problems; and some of the people are not just on a single issue. She stated Ms. Polk is here regularly; and she would be good on this committee. She stated Mr. Pine is here regularly; there is another gentleman to whom she has not introduced herself that she sees here regularly; and some of the people who are at the meetings regularly should be the first ones considered for appointment to these committees because they are already making an effort to make sure the tax dollars are being spent appropriately. She stated the oversight committee is to make sure they are spending the dollars right according to the agreements; and she cannot think of anyone who would be better.

County Manager Tom Jenkins stated the Ordinance scheduling the November 4 referendum for the one-cent sales tax includes a provision for the County, cities, and school district to jointly develop a citizens oversight committee to insure the referendum dollars are spent as promised to the voters; and the proposed agreement between the cities, the school district, and the County Manager’s office attempts to address that requirement. He stated those terms have been negotiated and accepted by all of the parties involved; the agreement calls for public hearings on any proposed changes to the project catalog by a city council, School Board, or the County Commission; and then the changes must be considered by an oversight committee at a second public hearing; and if the oversight committee does not concur with the proposed change, it has to go back to the council or board or commission, which must hold a second hearing to consider the oversight committee’s findings prior to taking action. He stated it is important to point out that no city council, school board, or county commission would be willing to delegate its final authority on the decisions on expenditures of funds under their jurisdiction; but this creates a public process so if there are any proposed changes of significance, it would have to go through a public process; and the elected officials are held accountable for that. He stated the agreement also calls for the oversight committee to monitor, oversee, inspect, review, and comment on the adherence of various governmental entities to the implementation of the projects and the equipment as delineated in the projects catalog; it requires reports from the governing bodies receiving proceeds from the surtax regarding implementation of the projects; and it would be filed with the County Manager’s office. He stated it also requires the oversight committee to file an annual report and such other reports that it deems necessary; these reports can include any recommendations regarding the implementation of the projects or the purchase of the equipment delineated in the catalog; and those would be filed with the County Manager’s office, and would be available to the public in the public libraries and on the County’s internet portal page.

Commissioner Scarborough stated there is also the concept of whether the Board wants to set a quorum and whether it wants to have a means of replacing members in case of habitual nonparticipation. Mr. Jenkins stated that would be a good idea.

Commissioner Carlson inquired if the reference to the project catalog is not just County projects but all the projects; with Mr. Jenkins responding affirmatively. Commissioner Carlson stated the only questions that have come up are in regard to the number of members and the weighting; and inquired what numbers were applied in paragraph 2A. Mr. Jenkins responded that was part of the negotiation with the cities; there are a total of six Countywide appointments between the School Board and the County Commission and five municipal appointments; and they came up with a methodology for how those would be made.

Commissioner Pritchard stated this is putting the cart before the horse; the Board does not even know if the referendum is going to pass; and it is only a month out, so he does not see why the Board will not wait to see whether or not it passes before creating a committee to oversee the projects. He stated it is not as if the money is going to be available immediately; the projects will not start the day after the election; and it will take months, if not years before any of them see development. He recommended waiting to see what the voters have to say and then proceed with establishing the committee if the referendum is approved.

Commissioner Carlson stated she appreciates Commissioner Pritchard’s perspective; but on other referendums that have had any percent of success, the voters needed to know what the Board and the other entities involved were going to do in terms of oversight. She stated the voters need to be assured of the credibility of the list and how they are going to stick to the list, and if any changes to the list occur, that will be done in a public hearing setting. She stated whether the referendum is successful or not, the public needs to know that there will be some sort of oversight done by the citizens in the community; and it is important to do it ahead of time and not wait until afterwards.

Commissioner Pritchard stated he does not see the difference; there is a list of projects with an estimated cost; that is what is going to be initiated; and if one of the items on the list is creation of a committee, then it has the same validity as any other project on the list. He stated by creating a committee at this point, it creates an expectation that is unfounded; and the Board should wait until the voters have an opportunity to vote. He noted it will be months, if not years before any of the projects get underway or completed; and this is putting the cart before the horse. Commissioner Carlson stated she would not agree.

Commissioner Scarborough stated page 3 says, “the oversight committee may seek input from various advisory bodies of the various governmental entities regarding the proposed amendments”; the oversight committee would not immediately know the methodology of a particular road project or school; and suggested using the word “shall” rather than “may” and including that they would receive input from intended users of the proposed projects. He stated if there was a school, there may be a school construction committee internally; however, there may also be a PTO with people who want to be heard; and this would afford not only the technical reports but an open forum for discussion.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct that the language be changed from “may seek input from various advisory bodies” to “shall seek input from various advisory bodies.”

Commissioner Higgs inquired if the other changes would be part of the motion.

Commissioner Scarborough restated the motion to incorporate the technical changes of setting a quorum and providing for means of removal of nonparticipating members.

Mr. Jenkins stated Commissioner Scarborough raised valid concerns about the quorum and the habitual nonparticipation; and those need to be addressed; but the reason the word “may” was used is that any proposed changes are going to come from a city council, School Board, or the County Commission; and inquired if once those entities have made a decision, is it still appropriate to mandate asking an advisory board, which may be subservient to the elected board, to offer an opinion. He stated staff left it discretionary so that if the entity wanted to, it could do that; but if the elected board is making its recommendation, then it is already past the advisory board stage, although it may still want input.

Commissioner Scarborough stated if that is the case, then the oversight committee may obtain input from the intended users of the project because the people want an opportunity to be heard by an independent third body. Mr. Jenkins stated that could be done very easily; and the language could be “may seek input from the various advisory boards and/or intended users of the facility.”

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

RESOLUTION, RE: OPPOSITION TO AMENDING CHAPTER 373, F. S. AND ANY
AMENDMENT TO FLORIDA’S WATER RESOURCE POLICY

Thelma Roper stated she supports the Board doing this because this is not just something going on in the County, but something that has become a concern in many areas of the State. She stated the more counties that take a stand, the better the citizens will be; in its reorganization plans, the Fish and Wildlife Commission is trying to repeal a lot of Statutes and put things under its rules; and that should not be allowed. She reiterated she supports the Board’s opposition to the amendment of Chapter 373, F.S.

Commissioner Pritchard stated he brought this to the attention of the Board so it would have opportunity to review it; the Board does not need to take action today; and he would like to have Mr. Knox’s and Mr. Martens’ input and bring this back for the next meeting. He stated it is important for the Board to take a position.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution supporting the continued inclusion of a local sources first policy in Chapter 373, F.S. and opposing any amendment to Florida’s Water Resource policy that allows, encourages, or promotes water transfers. Motion carried and ordered unanimously.

Commissioner Scarborough stated when he came on the Board there was an attempt by South Brevard to get water from Osceola County; at that time everything was done to prevent that from happening; but today there is a reversal. He stated they want to come into Brevard County and push the County to do reverse osmosis, which will result in higher water costs for the County’s citizens so that Orange County can capture the facility that the City of Cocoa owns in Orange County. He stated it is amazing how the laws change and political dynamics change for and against things.

Commissioner Pritchard advised of a joint meeting to be held on October 10, 2003; stated it is being facilitated by St. Johns River Water Management District; it is important for the County to deal from a position of power and authority; and the Resolution intensifies the format that is best for the County. He stated he supports the concept of regionalization; but he also believes strongly in home rule; and anything the Board can do to make sure the County’s position dealing with home rule stays forceful and valid is always in the best interest of the County.

Commissioner Higgs stated on the front page of the Orlando Sentinel today was an article about OUC being in the process of getting a new consumptive use permit from St. Johns River Water Management District, and Orange and Lake Counties are going to challenge it, so the fight is on; and they are looking all around the State for water supplies. She stated it mentioned the desalinization possibilities in the St. Johns or Indian Rivers or the ocean; and the Board needs to be thinking about that because if that kind of plant is going to come to the County, the County wants to be a partner in that activity. She stated it should not be a case where one of the outside entities comes over to do it; if it is going to happen, the County should be a partner; and that was one of her underlying concerns in regard to the Water/Sewer Ordinance the Board enacted a few months ago. She stated it is not that the County does not want to be cooperative; however, it wants to be a player at the table and not have something slammed down its throat.

LEGISLATIVE INTENT, RE: ORDINANCE REGULATING TRAINS BLOCKING RAILROAD
CROSSINGS

Mike Cunningham stated when he first brought this to Commissioner Higgs, there had just been what could have been a total disaster at Micco Road and the FEC railroad track; and described a car versus train traffic accident that resulted in the train stopping and blocking the intersections at Micco Road, Barefoot Bay Boulevard, and Senne Road. He advised the rescue unit was in a station two blocks away, but had to travel seven miles around the train to get to the scene; and the first responding station was Valkaria. He stated there are times in the morning and late at night when trains will pass each other and it will take 15 minutes to get across at a crossing; and the community has been fortunate that there has not be a serious fire, plane wreck, or other incident other than what they had. He stated in 1971 he came in on a flight to Ft. Lauderdale, and when he turned off of Federal Highway onto Broward Boulevard, all he could see were red lights; it turned out that a train had stopped and blocked six crossings; and that was probably one of the most disastrous fires they ever had, and he is sure the ramifications are still being felt. He stated this is not to infringe on the rights of the Florida East Coast Railway, which provides a good service to the State; but recommended the times when the crossings are blocked be regulated and the railroad encouraged to use more common sense. He thanked the Board, on behalf of his community, for considering this; and stated he is sure if something could be drafted similar to the Broward County Ordinance, the community would come out ahead.

Commissioner Higgs stated the information from Broward County is fairly clear; and the Board has the opportunity to adopt an ordinance that would help the railroad in deciding not to block intersections any longer than absolutely necessary.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to develop a draft ordinance that would restrict trains or railroad engines and cars from blocking the intersections of railroad tracks and public streets.

Commissioner Carlson inquired if there is feedback from Broward County as to how it has enforced the Ordinance; with Commissioner Higgs responding she does not have that, but staff can get it.

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

APPROVAL, RE: TEMPORARY LOAN TO GENERAL FUND

Finance Director Steve Burdett stated the cash level in the General Fund will not sustain all the funding requirements before property taxes are received in November; previously the Board approved a $3.5 million loan based on the cash flow requirements; and he sent each of the Commissioners a schedule. He stated that amount will not be sufficient; and an additional loan amount of approximately $4.5 million to $6.5 million is necessary. He stated one of the proposals of County management is to fund all of the indirect costs by reimbursing them to the General Fund at this time as opposed to doing it evenly throughout the year; while that can be done, it is another example of some departments paying for the general services before they have been provided; and it would help cashwise, but is not an accurate reflection of the flow of money. He stated the Board’s General Fund needs cash so that it can fund the requests from officers of the Departments and make any necessary debt payments, if those come up; and that money will be needed before property taxes come in.

County Manager Tom Jenkins stated Mr. Whitten sent the Board a memo on October 2, 2003, in which he pointed out that the Property Appraiser and Sheriff’s offices have agreed to accept lower transfer amounts for the first two months of the fiscal year; this will reduce the loan amount by approximately $2 million; and Mr. Burdett has already taken that into consideration. He stated the County Finance Department has been asked to transfer some amount greater than the usual quarterly transfer of the indirect changes and payment in lieu of taxes; and that would also further reduce the loan. He stated they are limiting filling first quarter General Fund vacancies to those that are critical, and are delaying General Fund capital expenditures to the fullest extent possible; and all of those steps should help the situation to some degree. He stated he is already doing those things; no Board action is required; but he wanted to make the Board aware that they are taking steps to minimize whatever amount may have to be borrowed for the cash flow.

Commissioner Pritchard stated this has been a problem for the past three years; and it looks like the Board is setting up the scenario for next year. Mr. Burdett advised the Board has been running annual deficits, which means it is spending more out of General Fund than the revenue it is bringing in for the past three years; this year it has brought the cash level to an amount that cannot sustain the first month and a half before property taxes come in; and that is why it is showing up this year as opposed to the preceding year. He noted it is a product of the pattern the Board established in the last three years. Commissioner Pritchard inquired if the pattern that has been established is that the Board is spending more than it is bringing in; with Mr. Burdett responding yes. Commissioner Pritchard inquired if that created a cash flow problem for the first month and a half to two months; with Mr. Burdett responding affirmatively. Commissioner Pritchard inquired how does that balance out by the end of the year; with Mr. Burdett responding the issue he is addressing is cash flow; and it is not a budget issue. He stated at the end of September and early October of this year, there will be the same problem of running out of cash in the General Fund; the Board will need to borrow the funds from somewhere in order to sustain operations before the property taxes come in; and property taxes represent approximately 45% to 50% of the General Fund, so for a month and a half there will not be that money in the bank. Commissioner Pritchard inquired if there is a reserve account set up to handle this cash flow inequity; with Mr. Burdett responding the Board spending more than what it has been bringing in has depleted those reserves, which in the past have been used to sustain the cash requirements during the first month and a half of each fiscal year. Mr. Burdett advised as long as the Board continues to spend more out of the General Fund than what is being brought in, sooner or later the money is going to be gone; and the County could run into a similar situation to what happened in Ft. Lauderdale. He stated Ft. Lauderdale ended up running out of having a fund balance; the Moody rating agency has already told the City it is on credit watch; and the rating agency is waiting to hear some policies from the Ft. Lauderdale Commission as to what it is going to do to resolve the problem. Commissioner Pritchard stated he has a copy of Moody’s Investor’s Report regarding Ft. Lauderdale; it is on a watch list for possible downgrade; it had greater than anticipated reduction in carry forward funds; and some of the initial recommendations of a long-term strategic plan include restoration of financial stability. He noted the Ft. Lauderdale City Manager, Mr. Johnson, just resigned leaving the City with numerous unresolved financial problems; and Mr. Jenkins worked with Mr. Johnson as Assistant County Manager. He stated Moody’s Investor’s Service placed the City on its watch list signifying it will closely monitor the City’s financial activities for the next three months; and inquired is the County putting itself in the same position with Moody’s and is it on the type of spiral that Ft. Lauderdale has been. Mr. Burdett responded there are some situations that will be coming up in Fiscal Year 2004 as the Board has discussed to some degree; the court costs are supposed to be transferred over to the State and the Board will not be funding those any
more; and he has provided information approximating the level the Board funds right now. Mr. Burdett stated if the State does not tell County governments that it needs more money to fund judicial costs, that could help sustain the annual deficit the Board has been incurring each year; the Board needs to understand that it has been spending more than what it is receiving; and it will have to deal with that at some point because it cannot continuously operate at a deficit. Commissioner Pritchard stated the agenda item says an additional temporary loan of $10.5 million from Solid Waste or Utility Capital funds to the Board’s general operating funds for the months of October and November, and that the loan will be repaid with interest upon receipt of property taxes; and inquired how that works. Mr. Burdett responded it is as if the County borrowed from a bank; and in this case the General Fund would pay interest back to Solid Waste or Water/Sewer. Commissioner Pritchard inquired if the interest comes out of the County’s operating funds; with Mr. Burdett responding that would be part of the budget. Commissioner Pritchard inquired how much interest would there be on a $10.5 million loan; with Mr. Burdett responding he cannot imagine it being more than $20,000 for that period of time. Commissioner Pritchard inquired if it will cost $20,000 for the County to borrow from itself; with Mr. Burdett explaining the water/sewer operation is an independent funding source used to provide the water/sewer infrastructure; if the money remained in the water/sewer fund, it would be earning interest; but since the General Fund is having to borrow it, it seems prudent that the General Fund would pay for the interest the water/sewer fund does not get. Commissioner Pritchard inquired if the Board continues this trend that it has been doing for the last three-plus years, what is going to happen a couple of years down the road, and will there be a point where the Board has to continuously borrow $15 to $20 million for two months; with Mr. Burdett responding if this were to continue into perpetuity, the Board would be running out of having a fund balance; and technically it would be difficult to balance the budget because effectively there will be no more cash forward. He stated when the Board runs out of cash forward, then it is going to have to make sure that if there are general fund operations of $160 million for the year that there is that amount of revenue being brought in for that year, because there will not be any cash forward. Commissioner Pritchard inquired if the choice at that point will be to stop spending or create additional revenue sources; with Mr. Burdett responding yes.

Chairperson Colon stated stopping spending has to be done throughout the year; the Board cannot vote on things and talk out of both sides of its mouth; and it is not just staff doing this, but the Board by being able to say no. She stated it is hard to say no when folks are in front of the Board; but there is a time when the Board has to say no. She stated she mentioned that last year in regard to a lot of things that were being discussed; it is not about just asking people to go back and cut; but there has to be a combination, with the Board being careful in how it is spending. She inquired if Budget Director Dennis Rogero concurs. Mr. Jenkins responded the Ft. Lauderdale scenario was brought up; that situation was unique in that at the same time it was going through its financial situation, it was proposing major cuts in services, which the City Council found unacceptable; and it was also going through a 12% tax increase. He stated the Board in recent months has established a direction which said it was going to discontinue considering any major new expenditures at mid-year; and by doing that, it enhances the prospects of increasing the cash forward at the end of the year. He stated if the Board sticks to that policy, then funds that in the past had been allocated to additional Sheriff’s deputies or other programs would be coming forward at the end of the year; in 2001 the Board revised its budget and financial policy to establish a goal of a 10% fund balance; and for 2003-04 the Board has revised its budget and financial policy to establish a goal of a minimum of a 5% reserve of General Fund operating revenues. Mr. Jenkins stated in making its analysis, the Finance Department, under Mr. Burdett, does not necessarily consider fund balance forward as a source of revenue; but the Board has used fund balances at least since 1986 when he arrived; and it has been a tradition and history in Brevard County to include funding balances in forecasting revenues for the next year. He stated apparently Mr. Burdett has changed his position on that issue in recent years; in FY 2002-03 the budget projected a beginning fund balance of approximately $16 million, an ending fund balance of approximately $5.6 million, and a reserve of approximately $7.6 million; and in FY 2003-04 the budget projects a fund balance of approximately $12.8 million and a reserve of approximately $8.4 million. He stated staff annually submits a budget that complies with the Board’s policies; and in order to meet the goals, it has been necessary to budget new revenues into reserves as opposed to spending them on new programs or needs or reducing taxes. He stated in other words, they take some of the new dollars they receive in the coming year and reinstate them in the budget in the reserve so it does not fall below the 10% and 5% goals that the Board has established; and the Board has a balanced budget each year.

Commissioner Scarborough stated cash forward is like someone’s saving account; what one earns, one spends; and if one spends less than one earns, then savings increase; but if one spends more than one earns, one’s savings account decreases. He stated the Board is talking about cash flow, which does not occur with individuals; many businesses are not earning enough at any given time to pay salaries or the electric bill; and it is only the Christmas month that makes it work. He stated there is a similar event in the County; it happens to different levels and at different times; this time they are talking about the taxes coming in at one time after the tax bills go out in November and the cash shortfall that occurs; and when the taxes come in, the cash shortfall is taken care of. He stated on page 31, under paragraph 74, it says operating expenditures; and inquired if Mr. Burdett provided that information to all Commissioners; with Mr. Burdett responding no, he only provided it to Commissioner Scarborough. Commissioner Scarborough stated it says operating expenses that arise from exchange transactions generally should be recognized when the transaction results and claims against financial resources should take place regardless of when cash is paid; and advised an example would be expenditures for salaries should be recognized in the period the employees perform the work, and expenditures for utilities should be recognized in the period the utility services are used; and inquired if that page came from general accounting procedures. Mr. Burdett responded it came from an accounting standard dealing with the measurement focus basis of accounting. Commissioner Scarborough stated he understands they are charging the salaries in general services providing services to the enterprise funds all at once at the beginning of the year, which would not necessarily be in line with this policy; and he would like the Board to proceed in the process it started by authorizing the loan to take place. He stated the Board will have to pay interest on the loan; but he wants to follow the accounting practices as closely as possible; they have borrowed $3.5 million; and inquired how much more would they have to borrow so as not to proceed with this particular policy. Mr. Whitten stated Mr. Burdett is talking about not doing something greater than a quarterly transfer from indirect; and built into the numbers Mr. Burdett gave the Board, is the $4.5 to $6 million. Mr. Burdett responded if the policy was followed, $6.5 million would be needed in addition to the $3.5 million that has already been approved. Commissioner Scarborough stated it would be appropriate accounting procedure for the Board to borrow money from the Enterprise fund as opposed to having the Enterprise fund pay for its services in advance.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize an additional temporary loan of up to $6.5 million, as required, from Solid Waste or Utility Capital Funds to the Board General Operating Fund for the months of October and November, with the loan to be repaid with interest upon receipt of property taxes; and direct that general accounting procedures outlined on page 31, paragraph 74 be followed, such that operating expenditures arising from exchange transactions are recognized then the transaction results and claims against financial resources take place regardless of when cash is paid.

Commissioner Higgs inquired how much is the Board going to need; with Mr. Whitten responding $4.5 to $6 million; and Mr. Burdett has not considered in that figure doing something greater than a quarterly transfer from indirect or PILT. Commissioner Higgs inquired why the Board would borrow money before it is needed; stated if it borrows money, it has to pay interest; and inquired why would the Board take action until it knows what it is going to need. Mr. Jenkins stated the motion is to borrow up to that amount, as required, not in advance. Commissioner Higgs inquired if a loan is not being initiated at this point, but will be done when cash is needed; with Mr. Jenkins responding yes, he is just getting authorization and the amount could end up being $2 million. Commissioner Higgs stated she is concerned about the process; in the past Mr. Jenkins has always initiated the request for these kinds of items; and inquired why is Mr. Jenkins not initiating it today. Mr. Jenkins responded Mr. Burdett placed the item on the Agenda without consulting with him. Commissioner Higgs stated in the past when the Board needed to do this, staff figured the cash flow and asked the Board to do this; with Mr. Jenkins responding typically it was done jointly with County Finance in the past. Commissioner Higgs stated it is appropriate since staff is the one managing that part of it; and she does not understand what Mr. Burdett brought this up. She inquired if Mr. Jenkins has the ability to manage how and when the Board gets the money; with Mr. Jenkins responding yes, and it would be appropriate for Mr. Burdett to consult with Mr. Whitten as necessary to draw down on the loan. Commissioner Higgs stated the Board will have an assurance that the money will not be borrowed until such time as County staff says it is needed; with Mr. Jenkins responding he will ask Mr. Burdett to document that he needs the money. Mr. Burdett assured he would not borrow money until it was needed. Commissioner Higgs stated Mr. Burdett is not going to initiate the borrowing and the County Manager is; with Mr. Jenkins advising that can be the Board’s action.

Commissioner Higgs inquired if Commissioner Scarborough agrees to that as part of the action; with Commissioner Scarborough agreeing it was his intent not to borrow any massive amount now, but to authorize the procedure. Commissioner Scarborough stated there are proper ways; one way the Board pays interest and the other, it does not; and he would prefer to pay the $20,000 interest and be in line with proper procedures. Commissioner Higgs inquired if staff would initiate any borrowing; with Commissioner Scarborough responding yes, only when needed.

Commissioner Pritchard inquired what is Mr. Burdett’s position in the County; with Mr. Burdett responding he is County Finance Director. Commissioner Pritchard inquired what does the County Finance Director have to do with the management of County finance or the Budget Office or Mr. Whitten’s involvement. Mr. Burdett responded Finance records all the money that comes in; it records the expenditures that go out; and it keeps track of the cash requirements for meeting all the obligations. He stated he works with the Board and administration when they finance major capital projects; they work with legal counsel; and anything that has to do with money, they have a major involvement with it. Commissioner Pritchard inquired who signs the checks; with Mr. Burdett responding the Clerk and the Chair. Commissioner Pritchard inquired how can the Board avoid borrowing money in the future. Mr. Burdett advised to avoid having to borrow money, the Board would need to seriously look at how much of a fund balance it wishes to maintain; if the Board does not want to borrow, the general rule it followed in the past was the 10% policy; and if the Board maintained the 10% policy, it would have a little more than a month of funding requirements for the General Fund, which could come close to the equipment of cash requirements for a month to six-weeks. He continued if the Board maintained the 10% or close to it, it would not run into any of these cash requirements at the end of the fiscal year before the property taxes come in for the succeeding year. Commissioner Pritchard inquired in order to maintain a 10% funding balance without creating additional revenue sources, would the Board need to reduce spending; with Mr. Burdett responding yes. Commissioner Pritchard stated what he does not like about the shell game is it is creative financing; and he does not like the idea of the Board having to borrow from itself because of things it is doing. He stated Ft. Lauderdale increased property taxes almost 13% as well as increased sanitation fees, fire special assessment fee, stormwater fees, and water/sewer fees; and that was just to keep them at critical service levels; he does not want Brevard County to face that; and that is why he proposes readdressing the budget process and next year taking a healthy look at what the Board is doing, how it is doing it, and what it needs to do to change it without creating all the additional revenue flows, many of which are wrong. He stated the Board is in a position where it needs to take appropriate action in order to keep itself solvent, and then readdress the entire policy next year. He stated one of the things the Board needs to consider is going back to the 10% in reserve of General Fund operating revenues; it can at least provide a little more buffer; and if it has to do that by limiting the amount of money that it is spending or some of the programs it is involved with, that should be the consideration of the Board.

Chairperson Colon stated she is grateful to Mr. Burdett, and appreciates his bringing this before the Board; and if there is anything in the future that Mr. Burdett thinks the Board might benefit from, she would encourage him to do that. She stated it is a good practice to be able to be a team; that is what they are supposed to be doing in watching out for the taxpayers money; and there is nothing wrong with making sure the Board gets some feedback. She stated when the Board has meetings next year regarding the budget, Mr. Burdett should provide some feedback as the Board cannot claim to have all the answers and know everything; and it would be beneficial to get additional information.

Commissioner Carlson inquired is there a problem because Mr. Jenkins said there is approximately $7 million in cash reserves. Mr. Jenkins stated the 2002-03 budget projected a beginning fund balance of $16 million and an ending fund balance of $5.6 million with reserve of approximately $7.6 million; and the 2003-04 budget projects a funding balance of approximately $12.8 million and a reserve of approximately $8.4 million. Commissioner Carlson inquired if the Board can borrow from the reserve account; with Mr. Jenkins responding no, it will need to borrow from the Enterprise funds. Commissioner Carlson inquired what policy is there specifically that the Board cannot borrow from reserves. Mr. Burdett advised the $12 million number that Mr. Jenkins gave is basically the same as the $8 million number; and those cannot be added together to come up with $20 million. He stated the cash forward he estimated at $12 million; the $8 million is on the appropriation side; and the difference is $4 million, which is what the Board is spending more than what it is bringing forward; or in other words, there is $4 million the Board is spending that it is not getting in the form of real operating revenue.

Commissioner Carlson stated she is uneasy about stalling transfers and things of that nature; the Board should borrow what it needs now; but she would also like it to be part of the motion that there be full disclosures of any transfers as they occur. Commissioner Scarborough stated he likes that; and the Board can just get a memo from Mr. Whitten that it borrowed so much.

Commissioner Carlson stated she knows they are going to be doing this up to a certain point as needed; at that point when they become solvent, the Board should have a summary saying this is when things occurred and when things were paid back; and she would like to have full disclosure. She stated the other issue that has not been brought up yet is the potential shortages for 2004-2005; Mr. Burdett told her the current budget has to be loaded into the control module so that there can be a real discussion about shortages that are going to be projected; and that information needs to come to the Board before the first budget review meeting. She stated the Board cannot overlook the fact that there have been shortages; it is a concern to her that the Board has tried to sustain a status quo budget with tax increases; and it is surprising that the Board finds itself in this position if it is supposed to be having a status quo budget, which means it is not improving or adding more services, so this needs to be addressed.

Commissioner Higgs stated the Board is spending a larger percentage of each year’s annual budget; ten years ago a large percentage of the budget became cash forward in the next year; and the Board is still budgeting a balanced budget that it balances with cash forward each year. She stated she does not want citizens to misunderstand that the Board is spending more than it has; it is spending more than it gets in taxes each year; but the cash forward each year balances the budget. She stated she does not want people to think the Board is spending in deficit; as it spends more of each annual budget, it will have difficulty going into the subsequent year if it is spending at a higher level; but it is not spending more than it has in the budget.

Commissioner Pritchard inquired how is the Board doing with cash forward; with Mr. Burdett responding the County just closed out its fiscal year September 30; and they are still bringing in some bills and will be accruing some more revenue that may be due from the State. He stated when staff has those numbers, it will provide the information to the administration so it can compare it to what it anticipates to be carried forward this year and report to the Board so it can make decisions. Mr. Burdett stated if it ends up with more, it can add it to the reserves; but if it does not end up with the same amount, then decisions will have to be made. Commissioner Pritchard inquired if cash forward is being used to balance the budget; with Mr. Burdett responding yes, part of it is being used to fund some operations and part is being used to put into the reserve Mr. Jenkins referred to. Commissioner Pritchard inquired when does the cash forward arrive in its entirety; with Mr. Burdett responding cash forward represents nothing more than the Board’s savings account; when there is money that has been built up over the years, it is available to be used as needed; but as everyone knows, when there are no funds in savings, it is more difficult to go out and buy the pleasurable items one wants; so at some point one can run out of cash forward, which is another term for fund balance. Commissioner Pritchard stated sooner or later the Board is going to run out of money in the pocket. Mr. Burdett stated that is true until it starts bringing in more than it is spending. Commissioner Pritchard stated Floyd Johnson, former City Manager of Ft. Lauderdale and former County Manager of Broward County said, “development and implementation of city policy is the focal point of allocating public resources in the budget process, but it doesn’t stop at the end of the fiscal year. It’s a continuing process that is more than just an arithmetic exercise. As I recommended last year, I urge you to develop a long-range financial plan especially for the general fund. I’ve begun a dialogue for the budget advisory board to outline such a task. I believe that such strategic planning is essential for the long-term fiscal stability of the city. With the adoption of this budget and the approval of a long-range plan before next year’s budget process, we can proceed toward a stronger financial position and a more optimistic outlook for the future.”

Chairperson Colon inquired if that is the new guy or the old guy; with Commissioner Pritchard responding the old guy. Chairperson Colon inquired why would she care what he said; with Commissioner Pritchard responding because he is saying they need a plan, need to follow that plan, and need to do it in a responsible manner. He stated Chairperson Colon needs to understand the politics behind the Commission, which has been wanting a strong mayor, and so takes issue with its city managers; but Mr. Johnson is saying a reasonable plan is needed; and the Board should adhere to the plan and not outspend its resources.

Mr. Jenkins stated in the last few years, the Board has been presented with grant applications for additional deputies; the Board has added ten to fifteen deputies because it was able to get a dollar-to-dollar match from the federal government; a year ago, the Board had to increase the jail medical contract during the middle of the year by $700,000; that is $2 million; and he cannot emphasize enough the importance of trying to hold mid-year expenditures or new expenditures to a minimum. He stated if the Board took the $2 million and added it to the reserves, it would see a significant effect; they start the year with a budget that meets the Commissioners’ goals; but if there are major new unbudgeted expenditures during the year, that primarily comes from cash forward; so in addition to the higher spending rate, the Board is also seeing new expenditures during the course of the year, which has a dramatic effect on cash forward. He stated if the Board lives by its new philosophy of limiting new expenses during the year, that should go a long way toward helping with the cash forward.

Commissioner Scarborough stated the issue of cash forward is a major issue; the cash reserves indicate a healthy county because it has monies in reserve; many states in the country are suffering from extreme financial crisis; the federal government has gone from surpluses to deficits; and after 9-11 the Board had conversations about whether there would be massive bankruptcies of hotels in the area and concern about the viability of the tourist industry. He stated many things turned around; the construction industry is as strong as it has been in decades; but the weak point in the economy that nobody talks about is the retirees. Commissioner Scarborough stated the retirees did not have their money in high-tech stocks; they had it in fixed accounts; but those CD’s and bonds matured; and those people in addition to social security are getting less and getting pinched. He stated young people can buy homes; people who want to work in construction are earning good salaries; but retirees are getting hurt. He stated life is never perfect; one time the Board had to freeze all the salaries and hiring; and those were tough times. He stated there were times when reserves were down and they have been brought back up; and what the people need to understand is that the Board being willing to talk about the amount of reserve is not a bad sign, but a sign that the County is in a healthy condition because if things were bad, the Board would not be talking about reserves, but would be talking about keeping its head above water.

Chairperson Colon inquired if Commissioner Scarborough made a motion earlier; with Commissioner Scarborough restating the motion and advising it includes Commissioner Carlson’s suggestion of continuing reports from Mr. Whitten on the amount borrowed.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Pritchard stated he is not comfortable with the idea of having to borrow money; and he is against the philosophy of running in a position where it is necessary to borrow money. Chairperson Colon stated this is something that was brought to the Board’s attention by Mr. Burdett; the Board had a healthy discussion about the issue; and she is comfortable with it.

Mr. Jenkins inquired what interest rate will the Board be paying; with Mr. Burdett responding 1.92%. Mr. Jenkins stated the Board will be paying less than 2%, which is very positive; the Board had to do this in 1992 and again in 1997, so there are cycles; and if the Board is frugal it can get the reserves back up.

Chairperson Colon stated this was brought to the Board’s attention by the Clerk of Courts; and the Board is taking action.

ACKNOWLEDGE RECEIPT, RE: ANNUAL FINANCIAL AUDIT OF INDIVIDUAL COUNTY
AGENCIES FOR FISCAL YEAR ENDED SEPTEMBER 30, 2002

County Manager Tom Jenkins stated this is the annual audit report; there is a response to most of the findings in the audit report; and the only issue Mr. Burdett did not bring to the Board’s attention is that for the fourth year the outside independent financial auditor has not been able to render a professional opinion on the Clerk’s financial records due to the failure of the Clerk’s system to work correctly. He stated he does not know if there are any ramifications of that.

Finance Director Steve Burdett stated it is actually the third year; and they expect for the year just ended the auditors will be able to render an opinion on the balance sheet although they may not be able to render an opinion on the income statement. He stated the plan of the Clerk is not to go back to 2000 through 2002 to get all that information audited because it is not feasible; it would be an extensively costly issue for the auditors; and the options that the independent auditors provided were to get the financial information completed for the year just ended and make it auditable by the CPA firm. He stated at that point the auditors will be coming in to closely look at the information since is has not been auditable for the last three to four years; and they expect to be able to render a partial opinion, and do not expect that it will have any ramifications on the County’s overall financial report or affect the Countywide audit.

Commissioner Carlson stated she would like to get a letter with the Chairperson’s signature requesting the Clerk’s strategic plan, not what software has been tweaked up to this point, but some sort of strategic level thinking on the status of the system and whether the Clerk foresees that it may be necessary to buy a new system at some point; that will allow the Board to understand what the fiscal impact might be, whether to the County or the State; and she just wants to see the impact and if there is some strategy out there that the Clerk is using to define some of the problems and help him get through to some sort of goal. She stated she has received some updates; the last update she had was in October 2002; she has been asking for ongoing updates; but she is more interested in the strategy and not a blow-by-blow description of what has happened.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to instruct the Chairperson to send a letter asking the Clerk of the Courts for his strategic plan, status of the current system, and whether he foresees having to buy a new system. Motion carried and ordered unanimously.

Chairperson Colon requested Mr. Jenkins help put the letter together.

Commissioner Pritchard stated he understands the problem the Clerk has is the system that he inherited and he has been trying to work the bugs out of it for the past three years; it would be nice to have an analysis of where it is and how it is going to be tweaked over the course of the next year; and if the system is not going to be working properly, it may be time to address getting another system. He stated on the agenda report it says, “financial condition assessment procedures were applied and the procedures applied to the Board noted several financial ratios reflecting declining trends”; and requested explanation. Mr. Burdett advised that is the same issue that was discussed about the reduction in the fund balance.

Commissioner Higgs stated the independent auditors’ report on the Clerk of Court says, “We were unable to satisfy ourselves as to whether all transactions were properly recorded in the accompanying fund financial statements. Because of the significance of the matter discussed in the preceding paragraph, the scope of our work was not sufficient to enable us to express, and we do not express, an opinion on these funding financial statements.” She requested an explanation. Assistant County Manager Stockton Whitten stated they were not able to audit the books and are not issuing an opinion on the accuracy of the financial information represented in the reports. Commissioner Higgs stated every other Charter officer and agency is being audited; the Board is getting statements that say the financial statements fairly represent what the auditors have found; and inquired what does it mean to the Board if this office cannot be audited. She inquired who is going to be accountable and how will this issue we resolved. Mr. Whitten stated ultimately the Clerk is accountable for the flows of incomes and expenditures; and the auditors are simply advising that based on the financial records, they are not able to tell if the accounting of those revenues and expenditures is accurate.

Chairperson Colon inquired if the auditors could come before the Board so the Board can ask more questions.

Commissioner Higgs inquired how many dollars are in question in this department and what is the total cash flow going through there; with Mr. Whitten responding millions of dollars flow through there; and the Clerk is collecting dollars not only for the Board, but for the cities and all the court fines and fees, so it is a substantial amount of money. Commissioner Higgs stated the Board does not have an audited statement that tells what the Clerk is reporting is what the auditors can find; with Mr. Whitten advising that is correct.

Commissioner Carlson inquired what implication is that as far as the County as a whole. She stated on the bottom of page 1 of the Clerk’s audit it says the report is intended solely for the information and use of management and the Florida Auditor General; and inquired if there is something the Board needs to ask the Auditor General in terms of the County’s standing to make sure it stays good even though there are problems with this Charter office. Mr. Jenkins inquired if the question would be to the Auditor General or Moody’s Investor Services. Mr. Whitten responded they are required to submit an action plan to the Auditor General; and it affects the County in terms of its effect on the County’s Comprehensive Annual Financial Report; but Mr. Burdett would be in a better position to answer why it is not reflected in that report. Mr. Burdett stated they have reported to the Auditor General’s office for the last three years; and in 2000 when the Clerk was facing this for the first year, he called the Auditor General’s office and explained the circumstances and that the Clerk would not be able to be audited. He advised the CPA firm has also spoken to the Auditor General, so the Auditor General is very familiar with what is going on; and the main issue the Clerk has faced, which is getting closer to resolution, is getting the information to where they receive all the fines that are due to the State, cities, and other governments and accurately get information out of their somewhat independent system that the preceding Clerk bought so that it can be reflected in the financial information. He stated that is where they are now; the reason the Board’s overall County report, which includes the Board and all the officers, has not stopped getting a clean opinion is because they have been able to make some estimates as to the Clerk’s operations; and the significance of the Clerk in comparison to the overall County has not been material enough to sway the auditors’ feelings as to the accuracy of the financial information. He stated the auditors recently advised the Clerk’s office that it cannot keep going year-after-year without getting accurate financial information and having it auditable; that has been explained to him and to the Clerk; and that drew major concern. He stated they tried to work with Clerk’s Finance because Clerk’s Finance has reached a point where the information could be processed a little more efficiently by its separate system; it just needed to be updated for all the years the information was not put into the financial records; and County Finance is working with Clerk’s Finance to start getting all the transactions recorded. He stated they are getting pretty close to where the records should be easily reconcilable with the bank, which is what is needed to make sure that everything that is being spent is going through the bank and is being properly recorded. He stated they are hoping that part of the financial report for the year just ended will be auditable; and in the succeeding year, they expect both sides will be auditable and they will continue to get clean opinions. Commissioner Carlson inquired if the Clerk submits an action plan to the Auditor General each year. Mr. Burdett responded all they submit to the Auditor General is the financial report; in that report is the disclaimed opinion that Commissioner Higgs referred to; the Auditor General can see that for the multitudes of reasons explained in the Clerk’s management letter, the Clerk’s reports could not be completely audited and no one could independently say they are accurate, and that has not been able to be done in the Clerk’s office for the last three years.

Chairperson Colon requested this issue come back at a regular meeting with the auditors present so the Board will be able to have a better understanding of what is going on in this department. She stated she has no reason not to believe Mr. Burdett; but she would be more comfortable having the auditors present. She inquired if that can be arranged; with Mr. Jenkins responding yes. Commissioner Carlson stated it could be a representative of the Audit Committee; with Chairperson Colon responding she wants the real auditors. Mr. Jenkins stated it is the external auditor.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to accept the receipt of the annual Financial Audit of individual County Agencies for the fiscal year ended September 30, 2002. Motion carried and ordered unanimously.

PERMISSION TO CANCEL, RE: OCTOBER 16, 2003 WORKSHOP

County Manager Tom Jenkins stated there is no subject for the October 16, 2003 workshop; and requested the Board cancel the workshop. He stated Chairperson Colon brought to his attention that there is a meeting scheduled for November 4, 2003, which is the date of the referendum; one of the Commissioners will be serving on the Canvassing Committee; and inquired if the Board would like to cancel the meeting on November 4, 2003, take the meeting on October 28, which is currently an evening meeting, and make it a day meeting so there is a full Commission.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to cancel the October 16, 2003 workshop and November 4, 2003 regular meeting; and reschedule the October 28, 2003 regular meeting, originally scheduled for 5:30 p.m. to 9:00 a.m. Motion carried and ordered unanimously.

TASK ORDER 00-16 WITH S2Li, RE: PREPARATION OF RFP FOR TRANSFER OF
CLASS I WASTE FROM SOUTHERN BREVARD COUNTY TO AN OUT-OF-COUNTY
FACILITY

Dick Rabon, representing Omni Waste, stated he was at the workshop meeting in August; at that time the Board took a number of actions to ask staff to look at several issues regarding the solid waste system; some of them were issues of expansion around current facilities; and others were new projects entirely. He stated at the time he introduced himself and Omni Waste as a potential option in some of the areas; Omni Waste is developing a new regional class 1 landfill in eastern Osceola County, just south of Holopaw, called the Oak Hammock landfill; that facility would be available for Class I disposal from all of Central Florida; and he would like to offer that as a part of the planning process. He commented on advantages of the landfill; and stated there may be significant potential for the County to use that as part of its system as the Board looks at its overall solid waste plan for the future.

Steve Peffer stated this was originally on the Consent Agenda and was pulled for discussion; and this is a response to the Board’s request made at the Solid Waste workshop. He stated Mr. Rabon brought forward the concept of looking again, as the Board did in the mid-90’s, to other facilities in the State to see if they would be more economical than using the County’s facilities; subsequent to the last Statewide look, the Board decided to expand its facilities, which it has done; so now there is additional capacity available, which the Board did not have in the last decade. He stated as part of the study and evaluation, they would be trying to isolate those costs specifically identified with the garbage of South Brevard; it is a rather complicated model that would have to be developed; and that is one reason for the expenses of the item. He stated they will be trying to isolate the specific cost of dealing with garbage to have a number to compare with any offers they would get; and advised the last time they found it to be more economical to stay within the County. He advised they are looking at spending considerable funds without any guarantee that it is going to result in going out-of-County to do anything; after expending the funds, they might find they are better off with the status quo; so it is important to keep that in mind in moving forward to consider this item.

Commissioner Higgs stated Subtask 170 seems to be an analysis of the cost; various other parts look at the process of going out to RFP and what the Board looks for in a vendor; and inquired if they could pull out Subtask 170 and do the analysis of the costs before going forward with the entire task of going to RFP. She stated they could do an analysis to allow the Board to look at the comparative costs before actually making the subsequent decision to go out to RFP. Mr. Rodriguez stated that could be done. Commissioner Higgs stated that would be the smart thing to do before going through all the steps of going out for RFP; and recommended analyzing it and then deciding if the Board wants to spend the extra money.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to prepare Subtask 170 with an analysis of the costs of Class I wastes from South Brevard to an out-of-County facility, and report back to the Board prior to going out for request for proposals. Motion carried and ordered unanimously.

Mr. Rodriguez stated it would be coming back depending on the cost; but if it is less than $15,000, staff could take care of it inside the department and then report back to the Board with the results.

Commissioner Pritchard stated if the Board opted to go for the full analysis, this part would have already been paid for, and it would not be a redundant procedure; with Mr. Peffer advising that is correct.

INFRASTRUCTURE COST SHARING AGREEMENT WITH TOWNE DEVELOPMENT OF
ISLAND POINTE, INC., RE: WASTEWATER INFRASTRUCTURE

Commissioner Higgs stated she wanted to be sure the Board had the specifics of this on the table; as she understands it, the Board is going to spend approximately $20,000; while the Board thinks it will recover the cost, there is no guarantee; and requested an explanation of how it will be done.

Water Resources Director Dick Martens stated the mechanism that has been used for capital recovery charges on this type of system is that the utility would provide, in this case, a cost share to build some infrastructure that will be needed in the future; and instead of trying to assess it over property owner’s in the area now, who may or may not have current needs for the service, they are proposing to hold off on collecting the fee and will collect their pro rata share of the expense at the time they connect to the system, much as they do with impact fees for the treatment plant. He stated there is no guarantee that all the properties would connect; but most if not all in the neighborhood will, based on the redevelopment potentials, the frontage on SR 520, and the fact that sewer service is an important component of development in an urban area like this.

Commissioner Higgs inquired if their systems failed, would they have to hook up; with Mr. Martens responding the requirement to connect has to do with the Septic Tank Code and how close the lines are; this property does not put any pipes into the ground, but provides access to a pumping station that is needed to provide sewer service; so what they are doing is actually facilitating the ability for future lines to be installed. Mr. Martens stated once lines are installed, then connection would be mandatory if lines are adjacent to the properties regardless of failure.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Towne Development of Island Pointe, Inc. for wastewater infrastructure cost sharing; waive requirement for appraisals of the 900 square-foot lift station site; and authorize the Chairperson to execute all necessary documents for the lift station site acquisition. Motion carried and ordered unanimously.

County Manager Tom Jenkins stated if the Board is going to do a brochure, it must approve it now or it will be too late to do any good.

Commissioner Scarborough stated he has looked at the brochure; he has no idea what the School Board is doing in his District; and people have inquired about all the projects. He stated it would be great if each Commissioner had the information in his particular jurisdiction for each of the three entities because the people in his District are not asking about the projects in District 4, but want to know what is happening with the schools and libraries in District 1. Mr. Jenkins noted the School Board has a brochure that he can get for the Board.

Barbara Jagrowski stated she was at Palm Bay High School last week; they had what is proposed at that school and the feeder schools; and she assumes that was being done with all high schools. Mr. Jenkins reiterated he has some School Board brochures; and people can print the lists from the cities on the computer.

Commissioner Scarborough stated he will ask his office if they can extract the projects because he is having difficulty in answering what is happening in North Brevard. He stated he will take what Mr. Jenkins provides and cut and paste.

Commissioner Carlson stated there are some people that are passing out a brochure for the School Board, but it is not set up District-by-District. She stated she went over the list but does not see the trails issue; with Mr. Jenkins advising it is at the top of the right-hand page.

Commissioner Pritchard stated the list says surtax contribution but not what the annual operation and maintenance costs are; and for instance, the South Brevard Senior Center is listed as $1.6 million. Mr. Jenkins stated the organizations pay for their own operation and maintenance costs; the County pays for the major building repairs like a roof or air conditioning; but in this case, the sales tax will be used for those issues so there is no operating budget impact to the County because it does not pay to operate the senior centers. He stated that is the case with those that do not show any number; and it means somebody is paying the operating expenses other than the County. Discussion ensued on various projects.

Commissioner Carlson advised of the need for public clarification; and stated if the Board members have questions, then they are probably going to get questions. She stated under roads, some have costs associated for maintenance and some do not; with Mr. Jenkins advising the numbers were provided by Roadways and Landscaping; some were existing roads that will not have any impact; but others are new roads or major changes to the roadway; and some is landscaping as well. Commissioner Carlson stated whenever there is zero impact, it should be there. Mr. Jenkins stated it was supposed to be there.

Commissioner Scarborough stated the Port St. John Sheriff’s station is a replacement; there is a price and $52,000 is shown as the operating expense; and inquired if that took into consideration that there is already a station. Mr. Jenkins advised that is supposed to be the additional expense for the larger building.

Commissioner Pritchard stated in adding up the total cost of the annual operating and maintenance, it is $11.7 million; and inquired where will that money come from. Commissioner Carlson stated that goes back to the idea that Mr. Jenkins has been working on for a timeline because this is over 20 years. Mr. Jenkins stated he has not started that, but will; $5 million of the $11 million is the jail; and regardless of what kind of tax is used, the Board will have to pay for the jail construction. He stated the day of reckoning is coming on the jail; and the Board will have to do something. He advised the other $6 million is spread out through a wide range of things; a lot of it is in roads and landscape maintenance, which will come from the MSTU’s primarily; the green space acquisition maintenance cost is intended to come from the EEL Program; and the new courthouse in South Brevard will have an operating impact of several hundred thousand dollars, which would have to come from the General Fund now, but legally can be taken out of sales tax. He stated that is not part of the package; but it is an option. He stated some of the things are fixed, but some can be paid for from other sources. Commissioner Pritchard stated the $11.7 million is going to have to be paid in some fashion; most likely that means it is going to trickle down to the taxpayers unless the Board creates some other revenue stream; and a tax increase will be necessary to pay for it. He stated the increase last year in taxes was based on higher appraisal values even though the millage was just about the same. Mr. Jenkins stated there is some equipment for the Sheriff’s office that is actually cost avoidance because vehicles and other equipment that the Sheriff’s Department would otherwise receive would be coming from property taxes; and property taxes will not be used under this scenario so that provides some cost avoidance. He stated the roadways and landscaping costs can generally be absorbed by the MSTU if they are in the unincorporated area just through growth in the tax rate; but he is not going to say there will not be some General Fund impacts because there will be, particularly with the jail. He stated some of the projects will be phased over a period of years, so the impact will not be all at one time. Commissioner Pritchard stated the bottom line is there is going to be an impact; and he wants the people to recognize that when there is a project developed there is cost associated with it. He recommended everyone read everything to be sure they are making a responsible decision on November 4 when they vote because they are going to have to pay the annual freight in order to maintain the projects.

Commissioner Carlson stated she agrees in that regard; and it is going to take a thoughtful process of applying capital improvements program as the Board inserts the dollars it is using over the next five years, if the referendum passes; and that is what will be used as part of the timeline in stretching out whatever dollars are needed for operations and maintenance. She stated in the past the Board has passed the CIP, but if the referendum passes, it will have to look at that again along with the budgetary process.

Commissioner Scarborough stated he never met a person who wanted a tax; but people in North Brevard historically drive to Orlando to shop where the sales tax is a half-cent higher. He stated the big question is what are they voting for and what is the tax going to be spent on. He stated not getting the information out would be one of the most tragic things that could happen; and in one month’s time it is going to be extremely difficult for people to understand the scope and complexities. He stated one lady came by his office and spent an hour and a half reading through the book, but that is only one-third of the projects; and he guesses she spent more time reading through the School Board and city projects. He stated this is extremely complex; and they need to get the information out.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to proceed with the Sales Tax Referendum brochure. Motion carried and ordered unanimously.

PUBLIC COMMENT, RE: BOARD PROCEDURES

Walter Pine stated his primary concern is there is no independent complaint process within the County; and the Board needs to establish one. He stated there is no tracking process for complaints; the Board claims there are not too many problems with this; but he has watched people complain and it is never recorded, so how does anyone know. He stated today the Board added something to the Agenda; the Board does not pay attention to the law; and inquired why the Board has an agenda if it can add anything it wants. He stated if the public brings something to the Board, the law states it can be added or discussed at that time; but for staff or the Commissioners to add things at the meeting does not provide notice, which is wrong. He stated the Board is talking about spending money before the referendum goes ahead; the list of projects is like a carrot hanging out there; if a cop comes to his car and offers him any incentive to do something wrong, it violates his civil rights; but in a much more sacred process called voting, the Board is offering that carrot. He stated the projects listed will influence people; and that is interfering with voting rights, which is illegal and unconstitutional. He commented on seeing the file with all the different County contracts and interlocal agreements; and stated the Board spent hundreds of hours negotiating contracts before there was even any money and before the taxpayers authorized the Board to do a single thing on the one-cent tax. He commented on the Board spending money before it has it; and stated no wonder there is a problem with accounting. He stated he is the individual who asked to attend the executive session; he asked Chairperson Colon for the documents; and she asked him to go somewhere else. He stated Chairperson Colon is the Chairperson of the Board; public record laws require the Chairperson, as custodian of the documents, to provide the documents; and if Chairperson Colon is not the custodian of the documents, she should direct him to the custodian. He stated for policies and procedures of the Board, the Chairperson is the custodian of the documents; and Chairperson Colon cannot avoid, deny, or disagree with that unless she just does not want to do her job.

Chairperson Colon advised Mr. Pine’s speaking time has expired; and presented him with documents. Mr. Pine stated that is not what he requested. Chairperson Colon stated Mr. Pine can ask Mr. Knox for whatever paperwork he needs.

PUBLIC COMMENT, RE: MARINA PARK PROJECT

Joan Wheeler stated she read the list of projects; and there are things on it that she would not like to pay for. She advised of going to the City of Titusville to look at its list; stated the City had a list of $25 million worth of items, but not a list for the other $25 million; and she would have thought the City would know what it was going to spend the money for. She stated she does not know if the City needs the money if it does not have a list. She stated information that was given to the Board was incorrect; people were saying the park plan was not the City’s plan; and there was comment about pasting stuff on the map. She stated she does not understand why the City got a computer assisted disk system to make the City’s plan, and then said Mr. Honeycutt was going to have to draw up a plan for the City. She advised of surveying done at Marina Park; stated nobody signed off on the survey so it is not a certified survey; and she does not know who did the survey. She stated in the City of Titusville, they do not need any citizen committees for the parks; they are a waste of time; and the County should just hand things over to the City to see what they want to do with it. She stated if the County has to do what the City wants, there is no point in bothering with committees. She stated it seems like they are looking for the County to protect the property from being surplused or turned over to someone else in future years; and if the County cannot do the project unless the City approves, it is up on some kind of tree it cannot get out of. She stated there has to be some way, particularly since this is referendum money; the City should not be approving it; the City was not interested until after the money came in; and now the City wants to say what to do with the money. She stated the City of Titusville has been unreasonable and demanding; it has to be done the City’s way or it cannot be done; and they have been hung up for over two years.

Thelma Roper stated she signed up to speak because of a lot of concerns and the information she heard this morning concerning Marina Park. She stated she heard there were attorneys at the committee meetings when they were needed; Mr. Beck said he asked for the attorney to be there at one meeting; and the attorney was present for only one meeting. She stated she was floored by the rudeness and venom expressed by committee members in trying to keep someone off a committee; time and time again the Referendum Committee asked Mr. Nelson to get a legal opinion because of the problem with the dedication; but they never got a legal opinion. She stated the committee members were flying blind; they did not get the legal opinions they asked for; and advised of reading the documents Ms. Canada got from archives. She stated in 1969 a lot of the filling that was done at Marina Park was done and permitted by North Brevard Parks and Recreation; and inquired who is going to the State for the permit for the building and modifications they are doing now. She stated if the County is going to do it, the City should agree; but since everyone knows the dedication is there and the State has the final say, everyone should let the State have the final say. She stated if the County has to apply for the permit from the State, it should make the decision; and she was disappointed and upset over the way the committees were handled.

PUBLIC COMMENT, RE: SALES TAX CITIZEN OVERSIGHT COMMITTEE

Bea Polk stated she would like to be appointed to the Sales Tax Citizen Oversight Committee.

PUBLIC COMMENT, RE: MARINA PARK (CONTINUED)

Susan Canada stated Commissioner Higgs inquired who has the final say about the Marina Park project. She stated the County has the final say about the expenditure of funds; but the City can come up with any design it wants to. She stated just because the City wants to build something, the County does not have to spend its money that way. She stated the park was dedicated by the State for public and recreational purposes with a reverter clause; the Florida Trustees have the final say along with DEP; and she has been in touch with DEP several times to confirm this. She read from the dedication, “Upon motion duly adopted, the Trustees approved dedication for public recreation and other public purposes under the supervision and control of the City of Titusville with restriction against grants of private concessions and subject to revocation at option of the Trustees in event of non-use for three consecutive years or use for other than public recreation or other public purpose.” She stated the County has final say over the money; the State has final say over what can and cannot go in there; and the Board is not powerless.

DISCUSSION, RE: EXECUTIVE SESSION PROCEDURES

Chairperson Colon stated Mr. Pine came up to her right after the microphones were turned off; he wanted to be part of the executive session meeting that was going on upstairs; and she informed him that he could not. She stated Mr. Pine was disappointed with that answer; she asked him to speak to Mr. Knox; Mr. Pine was disappointed that he had to speak to Mr. Knox; and she told Mr. Pine that he was welcome to put his request in writing or come before the Board to speak. She stated Mr. Pine then mentioned that his rights were being denied; and she asked him once again to speak to Mr. Knox.

Commissioner Scarborough stated a lot of times people know what the law is but not the reason behind it; and requested Mr. Knox explain why the Florida Legislature felt it was important for communities to have executive sessions where the Sunshine Law does not apply and why the community could be harmed if such meetings were held in the public.

County Attorney Scott Knox stated the reason underlying the policy of having executive session, which is provided for by law, is that when the Board discusses strategy in a lawsuit, which is what is done in executive session, it would be unfair to the public entities who are defendants or plaintiffs in lawsuits, if they had to disclose their strategy as a matter of public record. He stated if that was the case, any lawsuit against the County would keenly attract the interest of opposing counsel in any discussion of their case; they would be trying to find out what it is that the County was planning to do and what strategies it might employ; and that would certainly not help the County in terms of representing the people whose tax dollars are at stake every time the County is sued.

Chairperson Colon stated once the lawsuits are finished, it becomes public record; and anyone is welcome to get copies of those records as soon as the cases are finished.

County Attorney Scott Knox advised permission to hold the executive session was given on September 30, 2003. Chairperson Colon stated that documentation was given to Mr. Pine.

WARRANT LIST

Upon motion and vote, the meeting was adjourned at 3:14 p.m.

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

_____________________
SCOTT ELLIS, CLERK

(S E A L)