Minutes of the meeting of the Board of County Commissioners, Brevard County, Florida
March 12, 1998
(Includes the Sierra Club calling the Citizens for Constitutional Property Rights a "single special interest group." What better special interest could there be than protecting America's Constitution?)
The Board of County Commissioners of Brevard County, Florida, met in special/workshop session on March 12, 1998, at 10:07 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Helen Voltz, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Mark Cook, County Manager Tom Jenkins, and County Attorney Scott Knox.
DISCUSSION, RE: COMMISSIONERS' SALARIES
Commissioner Scarborough stated at the March 10, 1998 meeting the subject of the Commissioners' salaries came up; Barbara Jagrowksi wants to meet with the County Attorney; and that meeting will not take place before the next meeting. He suggested deferring the issue; and inquired when the meeting would take place.
Discussion ensued on meeting dates.
Commissioner O'Brien inquired why the subject should come back to the Board since it has been resolved. Commissioner Scarborough stated he is not sure it has been resolved. Chairman Voltz stated according to the County Attorney the issue is resolved. Commissioner Cook stated it is important for the County Attorney to meet with Ms. Jagrowski; and inquired if the meeting can take place before the March 17, 1998 meeting.
Commissioner Scarborough stated a memorandum was issued the day of the meeting concerning the unconstitutionality of an action taken by the people of the County in enacting the Charter; it is a matter of some substance; Ms. Jagrowski has other legal opinions she wants to share with the County Attorney; and cautioned if the Board moves too rapidly, it may come back in a form that will be less pleasant. He suggested the issue be deferred to April 14, 1998.
Discussion resumed on what date to defer the issue to. The Board reached consensus to decide on March 17, 1998 whether to defer the issue if Ms. Jagrowski has been unable to meet with the County Attorney by that time.
DISCUSSION, RE: SOLID WASTE HAULERS
Commissioner Higgs stated the Commissioners got a memorandum on USA Waste Management and the potential of it merging; and requested the County Attorney to look into that and see what position that puts the County in. She expressed concern about one hauler for the entire County.
DISCUSSION, RE: ELECTION PROCEDURES
Chairman Voltz stated in Miami absentee ballots were thrown out because the Judge said absentee ballots were a privilege not a right, and the prior Mayor was reinstated.
Commissioner Cook stated two months ago the Supervisor of Elections indicated he is no longer going to allow Sheriff's deputies to escort ballots to the voting precincts; the Board has asked for the Supervisor of Elections' security procedures, and who will escort what to where; and those are reasonable questions in a free society; however, he has received nothing from the Supervisor. He stated an election was thrown out in Miami over absentee ballots; now the Board is hearing Sheriff's deputies will not longer be used to escort ballots in Brevard County; and the Board needs to know specifically what the Supervisor means by that and what his security procedures are. He requested the County Manager request the Supervisor of Elections respond to the Board in writing on his security procedures and rationale for not using deputies. He commented on the problems with the Miami election.
Commissioner Higgs advised the problem in Miami had nothing to do with the counting of ballots, but rather the fraudulent procurement of ballots. Chairman Voltz explained what happened in Miami with absentee ballots, which resulted in all the absentee ballots being thrown out.
Chairman Voltz stated when the Supervisor of Elections came before the Board, he said there was a court ruling concerning Volusia County deputies handling the ballots; and requested the County Attorney look into and report on what that means for Brevard County.
Commissioner Cook stated it is reasonable to ask the Supervisor of Elections for the procedures, how they are implemented, and who will be escorting ballots. Chairman Voltz noted Mr. Galey attempted to answer the question at the meeting. Commissioner Cook stated he wants a written response.
PUBLIC COMMENT, RE: LANDSCAPE AND LAND CLEARING ISSUES
Carl Signorelli stated when a deed is given, the trees belong to the property owner, and the County has no legal claim or jurisdiction on the trees unless public safety or health is involved. He commented on the regulations which diminish the size and value of properties; and advised his land was downsized from 30 units per acre to 2 units per acre. He stated in order to develop, he would have to remove trees to comply with retention area requirements; and he has refused to develop because he does not want to destroy the trees. He stated there is extortion by mitigation as well as wetland and habitat requirements; and now more penalties including prison are being proposed. He stated it is necessary to have 15 feet in front and 20 feet in the rear of commercial properties for landscaping; and it is inverse condemnation. He stated if the County chooses to beautify roads for public benefit, it should buy the land and distribute the cost to all taxpayers, and cease discriminating against the individual property owner. He stated a proposed ordinance has been submitted which simplifies, retains property rights, and gives the homeowner an undue burden.
Community Development Administrator Peggy Busacca stated Mr. Signorelli's comments were largely based on the current Code, but a change was recommended by the County Attorney to make the language consistent with Florida Statutes. Commissioner O'Brien stated there is a penalty which can result in imprisonment; with Commissioner Higgs noting that is within the current Ordinance. Commissioner Cook inquired what is the County Attorney's recommendation. Ms. Busacca responded there was a question about whether $2,000 an acre was an appropriate penalty; the Florida Statute allows a maximum of $500 per penalty; and the County will have to be careful in how it defines penalty. She stated if it is defined as one acre, the penalty could be no more than $500 per acre; and if it is defined as a per day, it could be no more than $500 per day. Commissioner O'Brien read aloud from the penalty section of the Land Clearing Ordinance. Commissioner Higgs stated the County Attorney advises if the Board wants to keep the penalty at $2,000 per acre, it should go to $500 per quarter-acre; and that would change the language as it is today. Chairman Voltz stated Mr. Signorelli is saying the whole thing is ridiculous. Commissioner Higgs stated the penalty today is not what is proposed.
Commissioner Scarborough stated normally where something is covered by Florida Statute, the County does not restate it; and inquired why the mangrove provisions are restated. Ms. Busacca stated she does not know why it is included except that the original committee recommended it that way; however, there have been subsequent changes to the Statute dealing with mangroves which have taken away local jurisdiction. Commissioner Scarborough inquired if there is any reason to include provisions covered in Florida Statutes; with County Attorney Scott Knox responding the only reason to restate is to put people on notice. Commissioner Scarborough advised of the dangers of such inclusions; and stated if the Board is going to give notice, it should give full notice. Commissioner Higgs stated the Statutes were greatly expanded to allow other kinds of trimming and cutting of mangroves; and the County could choose to be more restrictive in its ordinance. Mr. Knox stated the County can be more restrictive. Commissioner Scarborough stated his concern is the incorporation of Florida Statutes as reference. Commissioner Cook noted the Statutes could change every year. Commissioner O'Brien recommended removing the remainder of the paragraph that begins with "penalties for violations or restrictions for the removal of mangroves." Commissioner Higgs recommending taking the remainder of public comment before taking action.
Deanna Reiter submitted written materials concerning deed restrictions; and outlined various deed restrictions concerning landscaping requirements. She recommended emphasis be placed on points, penalties and plantable area.
Albert Notary stated trees are overplanted by four times what the land can support; people are forced to improperly plant trees to meet the point requirements; and recommended Section 62-4331 be changed from "buildable area" to "plantable area." He recommended Section 62-4334 be deleted and replaced with the National Arbor Day Foundation Tree City USA Bulletin #4, which deletes the point system. He recommended maintaining that 14% of the site should be vegetated; and Section 62-4335 be deleted because buffers are controlled by the Zoning Ordinance, and should not be part of the Landscape Ordinance. He recommended deleting the Land Clearing Ordinance, and adding a new section to the Landscape Ordinance providing that the landscape permit is required when the vegetation is to be disturbed on a site of one acre or larger; and stated this would allow a person to clear his land as long as it is restored to the requirements of the Landscape Ordinance.
Ms. Busacca inquired if it would be on property one acre or larger, or larger than one acre; with Mr. Notary responding either way.
Commissioner Cook inquired if the current Ordinance exempts residential lots of one acre. Ms. Busacca responded there is an exemption on land clearing, but it is necessary to comply with the Landscape Ordinance; and Mr. Notary was referring to land clearing.
Richard Wallace declined opportunity to speak.
John Jerard expressed concern with overcorrection of the Ordinances. He explained his client's situation; and commented on the cost and procedures necessary to comply with all regulations. He recommended the Board learn from the experience with the dusky sea sparrow, where a highway was moved to save one nest, which turned out to be the nest of a hybrid which could not reproduce. He recommended the Board use common sense, and stop wasting money.
Commissioner Cook inquired who requires $12,000 to $15,000; with Mr. Jerard responding his engineer. Commissioner Cook inquired if Mr. Jerard was told by someone in Natural Resources that 27 trees were required; with Mr. Jerard responding affirmatively.
Roland Verduyn, representing Sierra Club, stated a letter from the City of Melbourne advises of reasons why the proposed revisions could create problems, including concerns about repercussions on vegetation, and erosion and drainage problems. He stated the Florida Yards and Neighborhood Handbook suggests starting with landscaping to reduce the effects of harmful runoff; a 50% tree canopy can reduce runoff by 25%; and shade on the west side of a home can reduce air conditioning by 50%. He requested the Board not make significant changes to the existing Land Clearing and Landscaping Ordinances, and implement them with mandatory inspection requirements; and expressed support for collection of fines when Ordinances are violated, with the revenue to be used to offset the costs of inspections. He recommended not including administrative waiver; and spoke in favor of strong Ordinances.
Micah Savell submitted photos of oak trees of various sizes and groupings; and stated with the current Ordinances there are a lot of things which must be addressed to effectively utilize property. He stated to meet FEMA and other requirements in 90% of the cases in the County, it is necessary to take everything off the property, fill it, and bring it up; and that needs to be considered along with the Ordinances. He stated the County has implemented a number of policies which have been a failure; and submitted photos of oaks trees which have died. He stated the Land Clearing Ordinance should not be in existence as the issues can be taken care of with the Landscaping Ordinance.
Commissioner Cook inquired if the trees under the power lines were ever moved; and stated he thought Road and Bridge was going to move them; with Mr. Jenkins advising it is on the list of things to do. Commissioner Cook stated it has been two years; and requested the project be moved up. Mr. Jenkins noted the Public Works Department did not put the trees in.
Sandy Sanderson, representing FP&L, requested the Board look at the spirit and intent of FP&L's suggestions and incorporate them into the final version of the ordinances. He stated when a large tree is planted under power lines, it grows into the power lines and causes interruptions; and when storms come through, trees which usually have sufficient clearance are thrown against the lines and short out the circuits or knock down the lines. He stated in an attempt to minimize the problems, it is necessary to trim the trees, and aesthetics suffer; and it would be better to see a small tree in its natural state than a large tree that had to have significant trimming. Mr. Sanderson stated the intent of the FP&L suggestions is to have a limitation on the size and amount of trees; and displayed a booklet, "Right Tree, Right Place" which lists numerous trees.
Chairman Voltz inquired how far away from the power lines should an oak tree be planted; with Mr. Sanderson responding the brochure advises of the recommended distance for each type of tree from the power lines. He stated the intent is to have reasonable guidelines to require trees that will not conflict with power lines.
Commissioner Cook stated palm trees would be the most compatible. He inquired about the dead trees on Wickham Road; with Mr. Jenkins commenting on why they were planted there.
Lil Banks advised of development of the subdivision in which she lives; and stated the Landscape Ordinance is another intrusive layer of government. She recommended the Board give citizens credit for common sense; and stated most people want to have trees, flowers, etc. She stated it costs between $2,000 and $4,000 to abide by the Ordinances; and recommended the Board write an ordinance that is friendly and can be understood. She expressed objection to having such an ordinance; and stated the problem automatically takes care of itself. She suggested setting aside money to reward those who get everything done, and fine those who do not. She suggested accepting the ordinance submitted by Mr. Signorelli and his team.
Dick Thompson expressed concern about the existing Landscape Ordinance; and stated a group of citizens have worked to develop another ordinance. He stated the Landscape and Land Clearing Ordinances have been combined; thirty-five pages of text has been reduced to eleven pages; and explained how the revision was done. He stated they eliminated unnecessary verbiage, but the criteria is still there for developers and residents; and they reduced the penalties. He stated they eliminated the point system and substituted "plantable area" which is easier to understand and monitor. He stated they reduced or eliminated costs that taxpayers must pay to make application and implement the rules of the ordinance; and requested the Board take a good look at the group's version of the ordinance.
Graydon Corn stated he believes in property rights based on the U.S. Constitution, and disagrees with ordinances which take his rights. He stated ordinances are a necessity in some areas such as zoning, but they are not to relieve citizens of their responsibilities, and people who incur damage should be responsible for it. He stated the two ordinances being considered have good ideas and suggestions, but are unconstitutional as written. He stated if he wants to clear his property, he will get a permit, and if the County does not want him to clear, its obligation is to either buy his property or let him use it. He stated instead of trying to find ways around the Constitution, the Commissioners should try to implement it as they swore to do when they took office; and explained the difference between a republic and a democracy. He stated a regulated society is not a free society; and there is a mindset that there will be a land clearing ordinance. He stated the ordinance takes people's rights; it adds $3,000 to $6,000 to a 30-year mortgage; and he is against it. He stated the only one who made any sense was former Commissioner Scott Ellis who wanted to do away with the Ordinance.
The meeting recessed at 11:13 a.m. and reconvened at 11:32 a.m.
Norma Savell requested the Board eliminate the Land Clearing Ordinance; and distributed a letter from U.S. Fish and Wildlife. She stated U.S. Fish and Wildlife clearly states the County is held liable because of the permits it issues for land clearing; and it gives two options to eliminate the liability, but it neglects to say that if the County had no such ordinance, the liability would not be there. She stated protections can be put into the Landscaping Ordinance, and some protections are already there. She stated the Board has an opportunity to undo the damage done by previous Boards. She stated in the past too much land was cleared, but today it is market driven as clients are drawn to places with beautiful landscaping.
Dolores Kane stated she agrees with Ms. Savell and the principle of keeping the ordinance short and simple. She stated every time a permit is added, it adds to the cost of living and running a business; and suggested easier requirements, including use of "plantable area," list of trees not to be used, and use of sod and shrubs for aesthetics and erosion control. She suggested crediting the developer or owner on their taxes for trees they put in and trees they save, and deleting the point system. She recommended the County pay for the tree survey.
Dick Gregory requested the Board keep the ordinance simple; and stated he has no problem with the current Ordinance, but 30 pages is too much. He recommend everything be kept on a local basis rather than going to agencies out of the County.
Renei Montanaro stated she is the first recipient in Brevard County for the Florida Yards and Neighborhoods Program; and stated she is not for simplifying the Ordinance, especially in the way proposed. She stated the native plant communities and existing trees are important; and recommended keeping a close watch on what is cleared, what is planted, and what is kept in the natural systems. She stated it is important for the future, for water resources, and to diminish erosion and runoff.
Catherine Stanton, representing Sierra Club, stated the CCPR-recommended ordinance reflects that it was written for the purpose of forwarding the agenda of the single special interest group; and the health, safety and welfare of the general public appears to be of little concern to its authors. She stated the proposed revision would only increase bureaucracy, and cost, and eliminate incentives for voluntary beautification and preservation of native landscape; its provisions are inflexible and would allow indiscriminate land clearing without regard for even the most basic considerations to protect soil from erosion and from inflicting damage to neighboring properties; and it would be inconsistent with municipal Ordinances, the Comprehensive Plan, and Florida Statutes. She stated the only property right the proposed ordinance would protect is the right to seriously degrade property without consequence.
Charles Moehle, representing Modern, Inc., advised of his background; and stated the Ordinances are too complicated for the small person. He stated large developers and rich people can afford to hire professionals to guide them through; however, the Ordinances are discriminating against small investors, small developers, and individual lot owners. He stated the Ordinances need to be simplified; the Land Clearing Ordinance could be eliminated and provisions included in the Landscape Ordinance; and that would take care of some of the liabilities which face the County, placing them directly on the property owner. Mr. Moehle commented on the cumulative burdens of the Ordinances; and recommended the County Attorney advise the Board.
Michael Moehle stated government has eroded the rights of property owners; the Florida Legislature passed the Bert J. Harris, Jr., Private Property Rights Protection Act in 1995; and read aloud from the Act. He requested the Board consider that according to the Act, to the extent the new ordinance causes diminution of value where the old Ordinance did not, the County may be required to compensate property owners.
Commissioner Scarborough stated the Board enacted its Ordinance approximately ten years ago; and inquired if the Board does nothing with it, does it have any concerns. Mr. Knox stated when the Board enacts a new regulation, the Burt Harris Act will pop up, and the question will be whether the new regulation liberalizes or restricts the old rules, and what impact that has.
Kim Zarillo, speaking on behalf of the Partnership, stated they submitted recommendations to the Board; there is a need to define building permit and survey permit; and instead of listing undesirable plant species, the ordinance should reference the Florida Exotic Plants List, Category 1. She stated the criteria for the landscape plan should be considered as well. She commented on requirements when there is a waiver, deed restricted communities, lack of uniformity throughout the County, and County enforcement of deed restrictions. She stated the ordinance proposed by CCPR is flawed; the Ordinances which are in place are well thought out; and taking out one piece of the Ordinance affects other parts of the Ordinance. She recommended keeping the Ordinances as is, and stated if they are left alone, the County will not have to worry about the Bert Harris Act.
Bill McCord, representing City of Melbourne, stated on August 13, 1997 a letter was sent to the Board outlining the concerns of the City. He expressed concern about whether proposed changes are consistent with the Comprehensive Plan; and recommended regulations be designed to be consistent over boundary lines. He stated the Committee was highly polarized, with representatives of special interests of each extreme; and he does not know if that has benefited the process. He encouraged the Board to get staff together to do an interlocal agreement which would ultimately result in adoption of a single ordinance, prepared by staff, and brought to the Board at public hearing. He stated there are issues regarding whether there should be landscape and land clearing codes; and one of the best indicators is what the private community is doing. He advised of the importance of establishing a standard; and stated the current Ordinance is complicated. He noted the City's Ordinance is 13 pages, and is effective in saving vegetation, preventing erosion, and preserving property rights as well as development rights. He stated the polarization of the Committee was unfortunate; and the comments today have not provided direction on how the community as a whole will benefit from the changes being considered; but things can be made more effective throughout the County. He recommended the Board encourage others to get involved in the process.
Jonnie Swann stated in the 1980's a developer did some extreme speculative clearing which created an uproar; and the proposal to do more speculative clearing is frightening. She stated the overplanting everyone is worried about is based on a proposal by Sylvester Rose on canopy; and she would hate to see the plantable area reduced. She stated the Tree City documents were excellent, but were not substantive enough; and the list of species given was not always appropriate for Brevard County, and included trees which are on the nuisance list. Ms. Swann stated Rockledge Gardens did a booklet on Brevard County trees which would survive well in the County, and it is available. She recommended the Board consider the ABC Guide; and stated the Ordinance should be a backup and guide.
Amy Tidd stated unless an area looks good, properties have less value. She stated the present Ordinance does a good job of preserving property values; and compared commercial development under the current Ordinances to that prior to the Ordinances. She stated she has a problem with a lot of the changes in the proposed ordinance. She stated on page 15 it talks about performance bonds; and she is not in favor of adding the phrase, "totaling more than $1,000." She stated on page 16, there is addition of an affidavit of completion, but the performance bond is more efficient and has been working well. She stated on page 14, she does not favor deleting section O.
James French suggested streamlining the process for the Landscaping Ordinance; and stated trusting people is one of the key features. He stated in a modern subdivision, people do not want to live where it looks like the surface of the moon, and will landscape in order to keep up with their neighbors. He advised of the history of Ft. Pierce. He stated landscaping costs add to the cost of a house; the Board takes pride in keeping ad valorem taxes down to reduce the tax burden on the average citizen; but the Landscape Ordinance becomes a heavy tax on a property owner. He stated because the County permits the land clearing, it is on the hook for a lot of laws that come from outside agencies; he questions the wisdom of the County putting itself in the middle of things such as the Endangered Species Act, when it could be avoided by not requiring a Land Clearing permit; and recommended the County let the outside agencies enforce their own laws. He recommended the Board treat the Land Clearing Ordinance like a weed, pulling it out by the roots rather than trimming it.
BOARD DISCUSSION, RE: LANDSCAPE AND LAND CLEARING ISSUES
Chairman Voltz summarized the subjects addressed during public comments, including conflicts between trees and retention areas, points, penalties and plantable areas, overplanting, expense of land clearing, Ordinance being too complicated, listing undesirable species, not planting due to allergies, deed restricted areas, and City of Melbourne's Ordinance. She stated the County should not have such a complicated Ordinance; and the County gives out a one-page document when someone wants to develop. She expressed support for positive reinforcement; and recommended the County provide incentives to people to not clearcut their land and to save as many trees as possible. She stated it is not government's responsibility to tell people how many trees they can put on their land, what kind of trees they can be, etc.; and she does not want to be told what she can put in her yard. She stated landscaping increases property values; and most people want that; but the County is not accomplishing what it wants with all the regulations. She stated none of the Commissioners is a developer; and inquired how the Board can say what is good or not good. She stated she is not saying the County should get rid of its regulations, but it needs to offer incentives and simplify the Ordinance.
Commissioner Scarborough inquired how that can be done.
Commissioner Higgs stated she has no problem making things easier; she helped build houses to the standards, and it is complicated; but she has not been able to find a simpler mechanism. She stated the Partnership's idea about the ABC Guide is good, and the Board should move on that. She stated in the 1950's and 1960's, things seemed to be simpler, but now the County is seeing the consequences of those times in terms of drainage systems, etc. She recommended doing the ABC Guide, and keeping the Ordinances intact. She stated what simplifies the Ordinance for one side, takes out the essence of the Ordinance for the rest of the people; and simplifying does not mean taking out everything under one and one-half acres.
Chairman Voltz stated she may not agree with the ABC Guide, but there is a lot of material available, such as the FP&L submittal and the Tree City USA material. She stated for the County to say someone has to put 20 trees on their lot is ridiculous. Commissioner Higgs stated that is not what the County is saying. Reba Floyd stated the goal is to preserve as much as possible; if there are a lot of trees on an acre and two or three are sixteen-inches or wider, no other trees are required; the size of the tree reduces the amount of trees which are required to be planted; and that is the incentive to save the trees. She explained what happens when an elevation must be changed by clearing and filling the lot.
Chairman Voltz stated the process is complicated. Commissioner Scarborough suggested discussing the requirements for residential property. Ms. Floyd stated under the current Ordinance, one acre can be reduced to one-half acre for landscaping; and the maximum with no trees preserved would be twelve trees six-feet tall. Chairman Voltz stated once the trees are 25 years old, there will not be room for twelve trees. Commissioner Cook stated he has a half-acre lot with four large trees, and he could not imagine having twelve trees. Ms. Floyd stated it depends on the species of tree being planted; but it may be as small as an East Palatka Holly; and if someone planted twelve oak trees, it would probably be too much. She noted the County does not have any requirement for species of the trees or plants.
Chairman Voltz stated if the requirement is for twelve trees and the person wants oak trees, his property may not be able to handle that number of oak trees. Ms. Floyd advised the permits state there will be twelve trees planted on the property, and the County does not consider species. Chairman Voltz inquired if the County does not consider how the trees will look in 25 years or how big they will be; with Ms. Floyd responding if it meets the native, non-native count, staff does not consider maturity or the species. Ms. Busacca stated there was discussion concerning waiver; the intent of one of the waiver provisions was to address what is being discussed; and it says it can be based on increasing the viability of the preserved trees or vegetation as a direct result of not planting additional landscaping on the site. She stated the waiver provision does not currently exist, but there has been consideration of including it.
Commissioner Cook stated he does not know if the Board can craft an ordinance that is better; and expressed concern with the point system in terms of palm trees versus oak trees.
Commissioner Scarborough stated his concern is not looking at the mature size of the trees going in; small trees with no canopy could ultimately be extremely dense; and if the Board is going to a canopy concept, it can look at the size of the trees remaining, the size of the trees planted, and the canopy that would be expected within a certain time frame. He stated nurseries can advise what size a tree will grow to be; and he would be more comfortable with that concept than overplanting twelve trees which will not live because they are too dense. He stated Orlando has historically encouraged the planting of oak trees; and today Orlando does not look like it did originally. He stated if the County goes with the canopy concept, it will get to the concept that a palm tree is different than an oak tree; and the canopy concept may sound complex to begin with, but it results in uniformity. He stated he was the only Commissioner who voted against this when it first came up; Sylvester Rose explained how things could be simpler by using something similar to a canopy concept; and outlined how it would work. He inquired if someone can bring in larger plant material that will achieve a certain canopy sooner, should he be allowed to bring in less trees because he is obtaining canopy density sooner.
Margaret Hames stated when the point system was designed, the original Committee wrestled with the idea, but finally found that the point system was the logical way to go to achieve canopy. She stated based on the point system, the individual who is landscaping is given personal choice; and it was an incentive to preserve native species on site and large exotic species. She stated canopy is the thing to go for, not number of trees; there are counties that mandate 50% canopy; and advised of the appearance of Winter Park and Deland.
Commissioner Cook stated when the original Landscape Ordinance was adopted, there was a lot of discussion; and inquired if fourteen trees on one acre is excessive. Ms. Hames stated each mature tree has a canopy spread which is characteristic of its species; and people look at that characteristic in terms of the square footage of the landscaped area. She stated if someone wants to achieve 25% reduction in erosion, cooling, etc., he or she would look for maximum coverage; and it does not mean the trees have to be evergreen trees. She stated developers hire consultants to do the landscaping; and advised of resources which can be used by private land owners. Commissioner Cook stated he can see oak trees in combination with palm trees. Ms. Hames stated the reason it was 50% palm trees was because of the desire for canopy; and compared the canopy spread of an oak tree as opposed to a palm tree. She stated she hopes a diversity of trees will be planted.
Commissioner Cook inquired why the canopy concept will not work. Micah Savell responded an acre requires twenty-four trees; with Ms. Floyd advising in accordance with the point system, if the trees were small with no trees preserved, the requirement would be twenty-four trees per acre. Mr. Savell stated the Board needs to have clear understanding because the Board is not being given all of the information; Ms. Hames' view of how things should look should not be imposed on him; and the canopy should be left to the individual homeowner. He advised one picture he submitted shows how one tree, in a short amount of time, has taken up the front yard of a home; people want to have big lush trees; preserved trees die in spite of people's best efforts, and it would make more sense to put in new vegetation. Mr. Savell stated it is someone else's idea of how he needs to live his life; and while Melbourne Village is a beautiful place, he would not want to live there.
Commissioner Higgs stated there is a difference of opinion; and inquired what the majority of the Board wants to do, and how does it want to proceed.
Chairman Voltz stated the Board should not go with one side or the other, but should look at the information and decide what is best.
Motion by Commissioner Higgs, to leave the existing Landscaping Ordinance as is. Motion died for lack of a second.
Commissioner Scarborough stated that is not fair to everything that has been said and done. Chairman Voltz stated the Commissioners have stacks of paperwork regarding the issues; she does not know what is in the old Ordinance; the Board has heard a lot of information; and each Commissioner needs to go through the old Ordinance. Commissioner Higgs stated she has done that. Chairman Voltz inquired what changes the Board wants to make. Commissioner Cook stated a motion is not needed to keep the old Ordinance in place; and if the Board does nothing, the old Ordinance controls.
Motion by Commissioner O'Brien, to make a change in the Land Clearing Ordinance, Section 62-4362, Violations, Penalty to remove "Penalties for violations of the restrictions on removal of mangroves shall be pursuant to F.S. Chapter 162, or such violations shall be punishable by imprisonment in the County jail for a period not to exceed 60 days or a fine of $500.00 per violation up to $10,000 per acre. Each 100 square feet of mangroves removed shall constitute a separate violation. Any combination of fine and imprisonment may be applied. In addition, mangrove revegetation shall be required at a ratio of two plants having a minimum height of ten inches per square foot." Motion died for lack of a second.
Chairman Voltz stated it will not change the fact that there is still a violation of Florida Statute. Mr. Knox advised of the provisions of the Code Enforcement Board Ordinance and its impact on the Land Clearing Ordinance. Chairman Voltz stated if there is a Landscape Ordinance, she does not know why a Land Clearing Ordinance is needed. Mr. Knox read aloud from Chapter 162, Florida Statutes, concerning fines.
Discussion ensued on penalties for mangrove removal, redundancy, effect of removing the mangrove verbiage, separate Statute describing mangroves, incorporating Chapter 162 in the Ordinance, and penalty under State law.
Commissioner O'Brien stated his second change is on page 9 of the Land Clearing Ordinance concerning protected trees; and inquired if the Board wants to have protected trees. He read aloud the protected tree provision; and stated the County has overstepped itself in this area. He stated a company in Cape Canaveral, fearing the next laws would seriously impede its ability to develop, cleared every tree, bush and shrub from the six acres; and it stayed that way for three more years. *County Attorney Scott Knox's absence and Assistant County Attorney Eden Bentley's presence were noted at this time.
Commissioner Cook stated what instigated the Land Clearing Ordinance was an incident in Titusville where a huge amount of trees was cleared. Commissioner Scarborough stated it was speculative clearing. Chairman Voltz suggested regulating speculative clearing. Commissioner Higgs stated that is what the Ordinance does; with Chairman Voltz advising that regulates everybody not just people doing speculative clearing. Commissioner Cook stated if someone has a development order, they can clear their land because they are going to develop it; but the idea behind the Ordinance was to disallow what happened in Titusville where property was clear cut and left for years. Chairman Voltz stated the Board should not make rules and regulations when just one thing happens. Commissioner Scarborough stated even though Titusville has an Ordinance, property was cleared on Garden Street; and so it still happens even if there are Ordinances, but it is a political hot potato. Commissioner Cook stated once the land is cleared, there is impact to neighbors; at least if there is a development order, there is assurance that something will go on the property within a reasonable period of time; and his concern is if the Ordinance is eliminated, property will be clear cut, sit there for years, and there could be wind storms which blow the sand around. Chairman Voltz stated the County could regulate that if it required land to be developed within a certain amount of time after being cleared. Commissioner Cook stated there could still be problems with absentee owners, for instance. Commissioner Higgs stated the next page specifies the conditions under which protected trees can be removed and how to replace them; so there are provisions for people to do something.
*Assistant County Attorney Eden Bentley's absence and County Attorney Scott Knox's presence were noted at this time.
Commissioner O'Brien stated the Board wants to simplify the Ordinance. He stated if he wanted to develop a one-acre parcel on North Merritt Island which had thirty ten-inch diameter trees on it, he might want to save ten of the trees but cut the others down, and he would not want to have to jockey his house around to save a protected tree. He suggested a reward for saving trees, bringing the number of required trees down. He stated the section he is addressing may be unnecessary; there are complaints that the Ordinance is too long; and removing the section does not hurt the Ordinance. Commissioner Cook stated owners of one acre of land would be exempt. Ms. Floyd stated one acre or less is exempt from the criteria. Commissioner Cook commented on encouraging preservation of trees. Commissioner Higgs noted there are incentives to encourage preservation on the next page of the Ordinance.
Discussion ensued on incentives, criteria to remove protected trees, incentives to save protected trees, and option to pay.
Commissioner Cook stated the emphasis should be on preservation; and suggested if someone maintains 25% of the property in a natural state, then they will be exempt from the rest of the Landscape Ordinance. Commissioner Higgs inquired if the Ordinance already does that under the understory provisions; with Ms. Floyd responding there is no mandatory preservation, but if someone preserves 25%, they would get credit for it. Commissioner Cook stated they would not necessarily be exempt from the rest of the Ordinance; with Commissioner Higgs conceding 25% preservation may not give the points to be exempt. Chairman Voltz stated it is not possible to know what 25% preservation would do.
Discussion resumed on incentives, preserving 25%, existing incentives, existing criteria, protected tree removal criteria, and removing protected trees to allow development.
Chairman Voltz stated the Ordinance tells individual homeowners they do not have a say in what is to be planted in their yards; and the developer puts in all the trees. Commissioner Cook stated the homeowner chooses the trees; and he knows people who have just built new homes who were told by the developer to pick out the plants. Chairman Voltz stated if someone does not want trees or plants in their yard, they have to put them. Commissioner Scarborough stated if the property is over an acre in size, the provisions kick in.
Micah Savell stated the Board has spent a lot of time talking about spending $90 million to buy scrub; but if scrub is salvaged, and canopy is put over it, it will not be long before the scrub is not effective; so there needs to be a clear focus on what the goal is.
Commissioner Cook stated if someone preserves 25% of their property in a natural state, they should be released from all other aspects of the Landscape Ordinance; and inquired if that is a viable option. Jonnie Swann stated it is too ambiguous because each 25% is different; as Mr. Savell stated you do not want oak trees over scrub; and the reason for the point system was to address that. She stated the point system gives more points for saving larger trees and more points for saving native landscaping. Commissioner Cook stated that is not working; hundreds of acres in Viera were clear cut, and little twigs were put in and called landscaping; but that is not preserving property. He stated the point system is not working; and it is not encouraging people to preserve property. Ms. Swann stated it is encouraging because it is easier and cheaper to just go in and clear cut; even if property is filled, it is not necessary to remove all the trees; and there are several ways to do it. Commissioner Cook stated they do it; with Ms. Swann agreeing it is done because it is cheaper. Ms. Swann advised Brevard County does not have the same values as Orlando or Winter Park. Commissioner Cook stated his idea may not be the best one; with Ms. Swann responding it is a good idea, but it was addressed. Commissioner Cook stated everywhere he goes he sees land being clear cut when new subdivisions are being put in, and it is because it is cheaper. Ms. Swann stated if developers can clear cut 75%, that will not make it much better. Ms. Busacca stated staff can put together scenarios showing what can be done with a two-acre property and what the points would be. Chairman Voltz stated the Board needs to see that; she has people advising they have to put in a certain number of trees, and do not have room to put in all of the other things which the County requires; and the Board needs to see how it works.
Commissioner Higgs stated the question today is whether the Board wants to put this off to wait for the scenarios or look at specific recommendations to put it in perspective. Commissioner Scarborough stated it has to come back to the Board in ordinance form anyway; and suggested identifying things where there is consensus to have staff work on them and come back, and then the Board can decide if it wants to include those things in the ordinance.
Commissioner Cook inquired if there is consensus to look at the 25% issue. The Board indicated consensus to look at the issue.
Chairman Voltz stated the Board needs to look at what incentives there are; and there must be a way to simplify this. Ms. Busacca inquired if the Board wants staff to bring back a simplified explanation of what currently exists in the Ordinance. Chairman Voltz stated she wants to know how to preserve. Ms. Busacca inquired if the Board wants to know how things are preserved right now. Chairman Voltz stated she wants to know how to give incentives to preserve what is existing without giving points for certain trees, which is confusing. Commissioner Cook stated he wants to know what impact the 25% would have. Chairman Voltz stated she would like to know how realistic it is. Micah Savell stated some people say these things work, and others say they do not; and suggested the Board tour with both sides to see what is working and what is not.
Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve looking at removal of the Section on page 9 of the Land Clearing Ordinance concerning protected trees. Motion did not carry. Commissioners O'Brien and Voltz voted aye; Commissioners Scarborough, Higgs, and Cook voted nay.
Commissioner O'Brien stated his next change is on page 13 of the Landscape Ordinance; it says for each ten parking spaces there shall be one tree, minimum ten points, and 100 square feet of landscaping within the interior of a vehicular use area; and suggested 50 square feet would be more appropriate.
Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve looking at reducing the requirement on page 13 of the Landscape Ordinance from 100 square feet to 50 square feet for landscaping within the interior of a vehicular use area.
Commissioner Scarborough inquired if there are any photos showing that; with Ms. Floyd responding staff can provide that; and advised the space depends on the species of tree. She noted 100 square feet is sometimes not enough for the trunk and root development of a tree. Commissioner O'Brien stated the City of Orlando has trees with 20 square feet with a metal grate; if a tree needs 100 square feet, it will take it; and he cannot see planning for 100 square feet. Ms. Floyd stated it applies to canopy trees in a parking area. Chairman Voltz suggested the Board wait to do this until it has pictures.
Commissioner O'Brien withdrew the motion.
Commissioner O'Brien stated there are lists of acceptable trees; and suggested a list be provided of trees that are not acceptable, with everything else being acceptable. Commissioner Cook stated the trees listed are suggestions not requirements. Ms. Swann advised the Committee was asked to put the lists in. Commissioner Cook inquired if they are mandatory; with Ms. Floyd responding they are recommended, not required. Commissioner O'Brien recommended including what is not acceptable; with Commissioner Scarborough inquiring if that would cause a problem. Ms. Floyd stated the general public asks what is recommended by the County; and it is a convenience to have a handout. Commissioner Scarborough inquired if the Agriculture Extension Services has information.
Discussion ensued on available written materials.
Commissioner Higgs inquired if the proposal is to omit the Appendix; with Commissioner O'Brien responding yes, and include a list of forbidden trees.
Commissioner Scarborough expressed desire to fine tune the Ordinance; and stated the Board has only heard from environmental or development interests rather than from landscapers. He stated in addition to the nurserymen there is a lot of information from the University of Florida through the Agriculture Extension Office; and that information should not have to be incorporated in the ordinance. Ms. Floyd stated staff recommends people access that information.
Commissioner O'Brien stated on page 15 of the Landscape Ordinance, it says people who are landscaping on one acre or more may be required to put up a $1000 bond; and that could be a hardship on a residential lot owner. He suggested the County have another mechanism whereby an individual could sign an agreement and if they do not perform up to the standards of the ordinance, the Board could put a lien against their home. Chairman Voltz stated that is only if someone wants to get their certificate of occupancy before planting trees. Commissioner Cook stated it liberalizes it a little.
Ms. Floyd stated in the last year there were sixteen commercial performance bonds out of 200 site plans; out of 2,500 residential plans that were fourteen; and out of the twenty-eight performance bonds the County took last year, only fourteen were $4,000 or more. She explained the process and cost for performance bonds; and stated the landscaping requirements for sod to cover all septic and drainfields only requires one bond rather than two; and it is working well.
Commissioner O'Brien stated it is working well for the County; and inquired what does it do for the citizen who is constructing a $150,000 home on a one-acre lot and wants to move into his house, but do the landscaping 90 days after moving in. Ms. Floyd explained the process at this time; and stated there have been fourteen that the proposed process would affect. Commissioner O'Brien stated when a bond is $1,000 or less, an affidavit could be required with inspection after a reasonable period; and if the landscaping is not done within that period, the County could put a lien against the home. Commissioner Scarborough stated he does not like liens, and the Board has had problems with liens. Commissioner OBrien inquired if there is another mechanism which could be used; with Commissioner Scarborough responding he does not know.
Commissioner OBrien stated on page 11 of the Land Clearing Ordinance, it says on a heavily wooded lot, the developer may pay a fee equal to $50.00 per inch of diameter up to a maximum of $2,000 per acre in lieu of replacement. He stated the intention is good; but inquired if the Board is simply taking money from people. Commissioner Scarborough stated he agrees because taking the money does not increase the property value; and commented on the lack of direct benefit.
Chairman Voltz stated the Board talked about preserving what is already there; but the ordinance is saying if someone cuts down what is there, the County is going to fine the individual; and she does not like the fines going into an environmental trust fund because she does not know what will be done with it. Ms. Floyd stated since 1989 there has not been a developer who has used that option. Commissioner Higgs stated it is one of three options which someone may take if they choose to; and in some cases it may be more expedient and cost effective to pay and move on. Commissioner Scarborough stated the Sylvester Rose concept is if someone goes to a certain point, they meet the requirements; some lots are so heavily wooded, that the person is allowed to remove trees and not have to plant more; but the issue is if someone removes those trees, he must come and pay additional money. Commissioner Higgs reiterated the individual may choose to do that as one of the three options, but the person is not forced to do so. She stated she has no problem taking the provision out; but the language provides flexibility. Commissioner Scarborough stated if minimal criteria is met after clearing, there should be no landscape/land clearing concepts that come into play; and beyond that, the provision is not needed. He stated the concern is the atrocity of clear cutting and letting it sit there. Commissioner Cook inquired if Commissioner Scarborough does not want to regulate every tree on a property. Commissioner Scarborough advised if a person chooses to develop in a wooded area, and has more than what the Ordinances require, the County should leave him alone. Ms. Busacca stated as written there is no direction to staff whether the protected tree replacement is included within the landscape point required. She stated the current interpretation is that it is greater than the current landscape points; and it would be helpful to staff to get Board direction. She advised the protected tree provisions were included after the general point system; and the Board at that time advised this was an additional step; but the Board's discussion at this time does not tend to be that.
Discussion ensued about going beyond the minimum requirement, not meeting the minimum requirement by one tree, overwhelming the point system, and the LPA clarification. Ms. Floyd provided an example of a large commercial property. Commissioner Cook requested staff get back to the Board on that; and suggested after staff comes back, if any Commissioner has a specific change to the Ordinance, he or she would be allowed to present that. Discussion resumed on the procedure. Commissioner O'Brien suggested holding a second workshop on April 9, 1998.
Commissioner Cook suggested any Commissioner with specific proposals bring them back to the second workshop, and the Board will vote on whether to move them forward.
The meeting recessed at 1:35 p.m. and reconvened at 2:20 p.m.
County Attorney Scott Knox advised in 1996 there was an amendment to the Statute adopted in 1995 which came after the Ordinance on mangroves; it says the local governments can enforce the mangrove laws if DEP delegates that authority to them; but the County has not asked for that authority. He stated the County can only adopt an ordinance setting a penalty for violation of mangrove laws if it has the delegated authority, but the County cannot set that penalty.
Motion by Commissioner OBrien, seconded by Commissioner Scarborough, to remove a portion of Section 62-4362 of the Land Clearing Ordinance, Violations and Penalty, as follows: "Penalties for violations of the restrictions on removal of mangroves shall be pursuant to F.S. Chapter 162, or such violations shall be punishable by imprisonment in the County jail for a period not to exceed 60 days or a fine of $500.00 per violation up to $10,000 per acre. Each 100 square feet of mangroves removed shall constitute a separate violation. Any combination of fine and imprisonment may be applied. In addition, mangrove revegetation shall be required at a ratio of two plants having a minimum height of ten inches per square foot. Such fines as are collected will be put into an environmental trust fund to be utilized for revegetation of public lands or for the purchase of environmentally sensitive lands, and all acquisitions made through this program shall be voluntary acquisitions." Motion carried and ordered. Commissioners Scarborough, O'Brien, and Voltz voted aye; Commissioners Higgs and Cook voted nay.
Ms. Busacca stated the last sentence talks about what the County does with the fines; there are other fines which will be assessed; and inquired if the Board wishes to leave that sentence in.
Discussion ensued on State penalties for mangrove removal, and Ordinance pre-dating the EEL Program.
Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to reinsert the following sentence into Section 62-4362 of the Land Clearing Ordinance, "Such fines as are collected will be put into an environmental trust fund to be utilized for revegetation of public lands or for the purchase of environmentally sensitive lands, and all acquisitions made through this program shall be voluntary acquisitions."
Chairman Voltz expressed concern about the sentence. Commissioner Cook expressed concern about the cost of setting up and administering a new fund. Commissioner Scarborough suggested including programs such as EELs. Commissioner Higgs suggested calling it an environmental fund so a trust fund does not have to be set up. Commissioner O'Brien suggested putting the funds into Parks and Recreation. Ms. Floyd advised the amount taken in since 1989 is $12,470; and stated it has not been used for mangroves, but has been used for land clearing. Commissioner Cook inquired what the money has been used for; with Ms. Floyd advising it has never been touched.
Motion restated by Commissioner Scarborough, seconded by Commissioner O'Brien, to insert the following sentence into Section 62-4362 of the Land Clearing Ordinance, "Such fines as are collected will be put into a fund to be utilized for revegetation of public lands or for the purchase of environmentally sensitive lands, and all acquisitions made through this program shall be voluntary acquisitions." Motion carried and ordered. Commissioner Voltz voted nay.
Mr. Knox advised of the State fines for altering mangroves.
Commissioner OBrien stated his next change is on page 4 of the Land Clearing Ordinance concerning fines for illegal land clearing; and stated it is a low fine.
Chairman Voltz stated she does not think there should be fines at all; and inquired who will say what is illegal. Ms. Floyd advised how "illegal" is defined. Commissioner Higgs stated any violation of the Ordinance is illegal. Commissioner Cook noted the fines can mount up quickly; with Commissioner Higgs noting the fines since 1989 have only totaled $12,470. Commissioner Cook stated he does not object to the fines, and the language is adequate. Commissioner Higgs inquired how much can the fine go to; with Mr. Knox responding $500 per violation. Commissioner Cook stated that would add up fast, especially if protected trees are removed; and the LPA recommendation is, "protected trees shall be a fine of $500 per tree, in addition to the $500 per acre penalty or imprisonment in the County Jail." Commissioner Scarborough stated the problem is if penalties ever fall below the threshold, it could become a business decision to pay the penalty. Commissioner Cook inquired how that would be because they get a land clearing permit. Ms. Busacca stated usually it would happen if they do not have a development order; the $12,470 was collected at the rate of $5,000 per acre and $500 per protected tree; and the LPA recommendation was $500 an acre. Commissioner Cook stated someone could actually go to jail; with Commissioner Scarborough advising the Ordinance does not say that. Chairman Voltz stated the Board removed that provision. Mr. Knox stated Chapter 129.69, F.S. is referenced in the first sentence, and that is the $500 or 60 days. Chairman Voltz inquired if it is not absurd to put someone in jail for cutting down a tree; with Mr. Knox responding the judges would make that decision, and it would usually be someone who is totally ignoring the regulations. Commissioner Higgs stated it should be left as is because it has not been actively used in ten years. Ms. Busacca noted it is $5,000 an acre now; with Chairman Voltz advising the LPA recommendation is $500. Commissioner Cook stated the County has to follow the State law. Mr. Knox stated the Board could go to $5,000, but it would have to adopt the Chapter 162 language to do it. Commissioner Scarborough suggested using $500 per quarter acre; with Commissioner Higgs agreeing.
Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to change the fine on page 4 of the Land Clearing Ordinance to $500 per quarter acre. Motion carried and ordered. Commissioner Voltz voted nay.
Commissioner Scarborough stated when the Board approves the items, it is only approving them as part of the dialogue.
Commissioner O'Brien stated the next change is on page 6 of the Land Clearing Ordinance concerning prerequisites for issuance; and the issue is controversial. Commissioner Cook inquired what is the objection; with Commissioner O'Brien responding it would allow land clearing without a permit and then present a landscape plan. Ms. Swann stated it is speculative clearing; and requested the language be left as is.
Chairman Voltz inquired what was the purpose; with Ms. Busacca responding it was brought up at the LPA by Mr. Signorelli who suggested a land clearing permit was not necessary if there was going to be revegetation, and the LPA put the verbiage in. Ms. Busacca stated typically when there is landscaping, irrigation is required; this would be problematic for a person to clear property, and then put irrigation onto the property when they do not know how the property will be developed; irrigation would require a pump which they could not get without a CO; and they could not get a CO unless there was building, so if the Board chooses to do this, it will have to address how irrigation would be provided.
Commissioner Cook stated the County would not have to require them to irrigate. He stated it does not look as though someone could do speculative clearing and leave it clear; however, below that it says, "no land clearing shall take place prior to the issuance of required survey or land clearing permit"; and inquired what that means. Commissioner Higgs stated it means someone could get a land clearing permit even though they do not have a development order if they have a landscape or revegetation plan. Dick Thompson stated the concern was that a person may want to take a portion of his property or all of it for something like a ballfield, there may not be a need for a building, and there will not be the approvals Ms. Busacca was talking about; but a person should have the right to clear his property. Commissioner Higgs stated a development order can be issued for a ballfield. Ms. Busacca stated to issue a development order, it would be necessary to get the criteria and know what it would look like when it is done. Commissioner Higgs inquired if there has been a ballfield come forward; with Ms. Floyd responding not by itself, but attached to green space for a subdivision or something.
Discussion ensued on why the Board is going through the LPA recommended version.
Commissioner O'Brien stated there is consensus to leave the prerequisites for issuance language as is. Commissioner O'Brien stated the next change is on page 7 of the Land Clearing Ordinance concerning the land clearing permit; read the section aloud; and stated the change is to delete "or where a landscape plan has been approved for the revegetation of the subject parcel."
Commissioner Higgs stated it is the same issue as the previous motion. Commissioner Cook inquired if Commissioner OBrien supports the LPA changes.
Chairman Voltz inquired if she has a vacant lot next to her house and wants to clear it off to make a picnic area, would she be allowed to do that without a land clearing permit. Ms. Floyd responded if it is a separate lot not attached to the first lot with the dwelling, up to 50% of that lot or one acre, whichever is less, could be cleared with no trees larger than four inches coming out until such time as a building permit would be pulled. Ms. Busacca noted if it was part of a parcel on which there was a house with a certificate of occupancy, it would be exempt, with no size limitation.
Commissioner O'Brien stated on page 7 of the Land Clearing Ordinance, 1(a), it says, "If one or more trees four inches in diameter or greater, excluding undesirable species, are to be removed from the property" the people have to get a permit. Ms. Floyd noted a permit has never been issued under those circumstances. Commissioner O'Brien stated it is absurd to require a permit for one tree. Chairman Voltz inquired about dead trees; with Ms. Floyd responding there is no permit required for dead trees. Commissioner OBrien stated if someone had one viable tree, they would have to go to Viera to get a $33 permit. Chairman Voltz inquired about commercial property; with Ms. Floyd responding $386 for the permit. Chairman Voltz inquired what if they want to expand and have trees they need to cut down; with Ms. Floyd stating if they are going to expand a commercial site, and there is 50% expansion of the existing building, they come back into the land development process for site planning. Ms. Floyd stated the Land Clearing Ordinance says if 25% of the existing structure is expanded, it comes back into the process from Land Development to Engineering to Landscaping/Land Clearing; but if it is less than that, nothing would be required. Ms. Busacca stated there is an inconsistency which staff would like made consistent. Commissioner Cook inquired if the fine is per tree; with Ms. Floyd responding it is for the permit.
Discussion ensued on the process under different scenarios, the fees, the criteria, difference in review time for residential and commercial, inspection procedures; and one stop permitting. *County Attorney Scott Knox's absence and Assistant County Attorney Shannon Wilson's presence were noted at this time.
Commissioner O'Brien stated he has no support for the change. He stated the next change is on page 8 of the Land Clearing Ordinance concerning seeding and mulching; it says 60% shall be covered within 30 days after final grade; and one of the suggestions was to keep the required 80% after clearing for construction. He stated it seems to be saying the same thing. Chairman Voltz stated it is not; someone could clear everything, put a pile of dirt there, say they do not have the final grade yet, and not do anything; so this would never kick in. Ms. Floyd stated the County Engineer normally goes out and approves final grade before construction. Chairman Voltz stated if someone leaves a pile of dirt on the property, they could clear everything, and the provision would never kick in. Ms. Busacca stated it was intended to address the problem that was happening in District 4 where one neighborhood was impacted because it was cleared and there was windblown erosion. Commissioner Cook explained the severity of the problem; and the provision in question is important. Commissioner O'Brien inquired if there is support for 80% after clearing. Ms. Busacca stated that could be a problem because someone may be clearing and also doing site work; and the desire was to come to an area where the site work had been completed and it was reasonable to stabilize. Commissioner Scarborough inquired what if someone thinks three years is reasonable; with Ms. Busacca responding that is why it originally said final grade. Commissioner Higgs inquired about having a time frame from when someone starts clearing; with Ms. Busacca responding that is there now.
Discussion ensued on final grade.
Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to direct staff to work on the wording on seeding and mulching retaining the 80% requirement within 30 days. Motion carried and ordered unanimously.
Commissioner O'Brien stated on page 8 of the Land Clearing Ordinance under paragraph (g), there is a need to keep the Office of Natural Resources Management in the loop. Ms. Busacca stated what has been done in all the Ordinances is to put the County Manager instead of specific staff because if the title of the Department changes, the Ordinance would need to be amended.
Commissioner O'Brien stated on page 9 of the Land Clearing Ordinance, paragraph (I) allows widespread clearing based on a promise, but it would be easy to circumvent the intent of the Ordinance using the current wording. Commissioner Cook stated that is the LPA recommendation. Ms. Busacca stated it is a continuation of the same issue of whether a land clearing permit would be issued without a development order. Commissioner Cook stated the Board made a decision. Ms. Busacca stated that language would be deleted based on the Board's previous motion.
Commissioner O'Brien stated on page 11, under Replacement Criteria, the request is to leave pine trees included as protected trees, as there is no rationale to exclude them. He suggested deleting the protected tree concept. Commissioner Higgs stated the majority agreed to leave the protected trees; and the question is whether the Board wants to back off on pine trees. Commissioner Cook stated he is inclined to do that. Commissioner Scarborough stated pine trees add to the biodiversity; pine trees and palm trees have a different canopy than oaks, magnolias, etc; and he would like to discuss the differences between palms, pines, and broadleafed trees and how they are treated. Commissioner Higgs inquired if Commissioner Scarborough wants pine trees to not be a protected tree. Commissioner Cook inquired why protect pine trees. Commissioner Scarborough stated he is willing to discuss it as part of biodiversity. Commissioner Cook inquired why pine trees were protected, and was it because it is a native tree. Margaret Hames responded the most common natural community in Brevard County outside of the wetlands is the pine flatwoods; and if the Board wants Brevard County to remain looking like Brevard County, it needs to preserve the native pine trees. She stated they also provide wildlife habitat; and if the Board does not give any protection to pine trees, it is saying they do not matter. She stated pine trees can have a 200 to 300 year lifespan, and they self prune. Commissioner Cook inquired if palm trees are included in the protected species; with Ms. Hames responding no. Commissioner Cook stated palm trees are Brevard County; with Ms. Busacca responding palms are protected if they are ten inches. Ms. Hames advised palm trees are measured by a different standard.
Commissioner Scarborough recommended people from Forestry be present at the workshop. Chairman Voltz stated she would also like to have some landscape architects. Commissioner Cook questioned whether they would have their own agenda. Commissioner Scarborough stated he just wants them to be present to answer questions.
Commissioner Scarborough stated his problem is how several different types of plants are defined. Commissioner Higgs stated the motion would be not to exclude pine trees, but to leave it as it is; with Commissioner Scarborough agreeing.
Discussion ensued on what to move forward for discussion. The Board reached consensus to leave the wording as is for discussion at the next workshop.
Commissioner O'Brien stated the next issue is on page 11 of the Land Clearing Ordinance concerning relocation of trees; and recommended substituting Division of Forestry evaluation of trees other than timber for the underlined bold language. Ms. Busacca advised the suggestion is to delete the additional language. Kim Zarillo stated the idea is to not relocate a tree on another property; and explained the difficulty of moving a tree ten inches or greater. Ms. Busacca read aloud the existing paragraph 2.
Discussion ensued on the paragraph. The Board reached consensus to leave the language as is. Commissioner O'Brien stated his next change is on page 10 of the Landscaping Ordinance, concerning the point schedule. He suggested discussing the point schedule at the next workshop. He stated page 12, paragraph 5 addresses mangroves; and inquired if this should remain since language has been removed from the Land Clearing Ordinance. Commissioner Higgs inquired why mangroves as a tree should be treated differently from something else, and can mangroves be planted for credit. Commissioner O'Brien stated the problem is the height of the mangrove to start with would be twelve inches, but there is nothing saying how far apart they should be. Commissioner Scarborough noted it also does not say what area they should cover. Commissioner O'Brien suggested adding language that says "the minimum size of newly planted mangroves shall be twelve inches in height, on one-foot centers, per 100 square feet." Commissioner Scarborough inquired if seven points are being given for every twelve-inch mangrove that is planted; with Ms. Busacca responding if someone is willing to plant mangroves where they do not currently exist. Commissioner Scarborough stated that is a lot of points; with Commissioner Cook advising it is very important.
Motion by Commissioner OBrien, seconded by Commissioner Scarborough, to add language on page 12, paragraph 5, "the minimum size of newly planted mangroves shall be twelve inches in height, on one-foot centers, per 100 square feet."
Commissioner Higgs stated "removal of mangroves is regulated by Division 3 of this article" needs to be amended consistent with the prior action.
Commissioner O'Brien stated he will include that revision in his motion. He restated the motion to add language that says, "the minimum size of newly planted mangroves shall be twelve inches in height, on one-foot centers, per 100 square feet" and removing the sentence, "removal of mangroves is regulated by Division 3 of this Article" consistent with the Land Clearing Ordinance.
Chairman Voltz inquired if the Board wants to address this under the point system. Commissioner O'Brien stated this is not points; this is just talking about mangroves and how they should be planted; and it is a glaring error in methodology. Chairman Voltz inquired if there is language somewhere else that says what it should be; with Commissioner O'Brien responding he is certain there is, and Ms. Swann will be happy to fax a copy of a page that does that.
Chairman Voltz called for a vote on the motion. Motion carried and ordered unanimously.
Commissioner OBrien stated on page 13 under paragraph (j), additions to existing structures, it says, "25% expansion as threshold for land clearing and landscaping regulations." Commissioner Higgs inquired if Commissioner O'Brien wants to leave it 50% as is. Ms. Busacca stated Commissioner O"Brien is saying he wants to leave it as is and not use the 50%. Commissioner Cook stated there would be two different standards. Ms. Floyd advised there will be sites that the County will not catch if it goes to the consistency of the 50%, and a lot of older parcels will not come to corridor standards. Commissioner Scarborough suggested keeping the 25%. Commissioner Cook inquired if someone expands by 25% will they have to redo all of their landscaping; with Ms. Floyd responding no. Ms. Floyd explained what happens when areas are cleared for expansions. Ms. Busacca stated it is not said that way in the Ordinance; there is new language in paragraph (j) that says where the expansion shall increase the applicable floor area of the project at least 50% or 25%, shall comply with all landscaping requirements specified in this Division; and the interpretation of the staff has been new developable area, rather than retroactive. Commissioner Cook stated going with 25% and retaining the new developable area is reasonable.
Motion by Commissioner OBrien, seconded by Commissioner Cook, to approve under paragraph (j), "... where the expansion or addition shall increase the applicable floor area of the project at least 25%, shall comply with all landscaping requirements specified in this Division for the new developable area under review." Motion carried and ordered unanimously.
Commissioner Higgs inquired if it is just bringing this forward to the next discussion; with Commissioner OBrien responding that is all that is being done.
Commissioner O'Brien stated the next change is on page 14, l(1)(c), minimum size of trees; and suggested palms be included measured by clear trunk as defined by industry standards. He inquired what are the industry standards; with Ms. Swann explaining how palms are measured. Commissioner Cook stated he likes palm trees. Commissioner Higgs stated the Ordinance is being left as is with addition of palms measured by clear trunk. Ms. Floyd advised how trunk size indicates chances of survival. Commissioner O'Brien inquired why palms were removed in the first place. Ms. Busacca stated currently palms have a different point value; and the recommendation of the Committee was to just call a tree a tree. She noted if the palms were measured by dbh, that would result in a smaller number of total trees on the site. Commissioner Cook stated palms currently only get half the points of other plants, but he thinks palms are fine and enhance the look of the County. Commissioner O'Brien stated the same change should be made in paragraph (2)(c) on page 14, eight-foot palms measured by clear trunk.
Commissioner O'Brien stated the next change is on page 15 of the Land Clearing Ordinance; read aloud paragraph (p)(1); and inquired about the change to County Manager. Ms. Busacca stated it says County Manager but also includes his designee who in this case would be the person most appropriate to make the designation, and this is being done in all Ordinances.
Commissioner O'Brien stated the next change is under paragraph (r), betterment plan; and requested staff review the wording.
Commissioner O'Brien stated the next change is on page 16, paragraph (f); and suggested adding a sentence at the end, "and work must be completed."
Commissioner Cook suggested keeping the current Ordinance.
Motion by Commissioner Higgs, seconded by Commissioner Cook, to stay with the current Ordinance. Motion did not carry. Commissioners Higgs and Cook voted aye; Commissioners Scarborough, O'Brien and Voltz voted nay.
Commissioner Scarborough stated he prefers to continue going through the Ordinance. He stated Assistant County Attorney Shannon Wilson recommends including a time for the completion.
Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to add "and the work must be completed within 30 days" at the end of paragraph (f) on page 16. Motion carried and ordered unanimously.
Commissioner OBrien stated the next change is on page 21 of the Land Clearing Ordinance as recommended by the LPA, under maintenance and inspections. Ms. Swann recommended retaining the crossed out language, and not going with the LPA language. Ms. Busacca stated the current Ordinance requires that the landscape materials be viable one year after issuance; the County would do a courtesy inspection to see that the landscaping meets the requirements; and the recommendation is that the landscaping materials would have to be onsite in the future. She stated if someone is required to have a certain amount of landscaping by the Landscape Ordinance, and five years from now that landscaping is no longer viable, they could be in violation, as opposed to the current Ordinance which says only has a one year requirement for the landscaping; and this was brought up by the Committee. She stated the Committee's rationale was that if landscaping is important, it should be maintained. Ms. Floyd explained the current maintenance bond requirements; advised it is only for commercial; and stated 90% of the commercial sites are in compliance after one year.
Commissioner Scarborough stated on pages 10 and 12 of the Landscaping Ordinance, there are inconsistencies in how the County gives credit; on page 10, for preserved trees, the points go up with the size of tree; on page 12, there are no incremental points for planted trees. He stated the County may be proliferating a forest of twigs as opposed to larger, more viable trees; and he would like to integrate some of the concepts from page 10 into page 12.
Commissioner Cook stated he is happy to look at the changes; but the current Ordinance has worked for ten years; and he is not sure that tinkering with it will improve it. He noted it could make it worse.
Commissioner Higgs inquired if the Board agreed on an ABC guide; and stated it is a useful tool for the general public. The Board indicated consensus to discuss the issue at the next workshop.
Discussion ensued on when to hold the second workshop. Consensus was reached to have the County Manager's Office coordinate with the District offices and establish a date.
Norma Savell stated Commissioner Cook mentioned the Viera land was clear cut by developers; but the Duda land has been pasture and crop land, so there are more trees now than there ever were before, put there by developers to go with the homes.
Commissioner Cook stated that was not the property he was looking at; the property he was looking at had pine trees all over it; the developers did not do anything wrong or outside the Ordinance; but he was looking for a way to encourage preservation of those trees. Commissioner O'Brien stated Pulte Homes on Merritt Island bulldozed everything down to the bare ground in Phase 1 and Phase 2. Commissioner Cook stated the reason is it is more economical.
Ms. Savell stated part of the problem is the Ordinance, and the Board needs to have some developers present as it goes through the Ordinance.
DISCUSSION, RE: WORKSHOP
Mr. Busacca inquired if at the workshop the Board would like to see a draft ordinance with the changes that have been discussed today and no other changes; with Chairman Voltz responding no. Chairman Voltz stated there are other suggested changes. Ms. Busacca inquired if the Board does not need staff to provide any more information other than specific information requested such as examples of point systems, etc. Commissioner Scarborough stated he threw out the idea of palms and pines; he does not want to discuss language in an ordinance; he wants to discuss philosophically biodiversity, canopy, and issues of theory; and when the Board gets over to the sizes, the practicality, etc., the Board needs information from nurserymen about costs to move certain size trees, availability of certain trees and information of that type.
Discussion ensued on things to be discussed at the workshop, whether to take public comment, presence of individuals from all sides to answer questions, whether a new ordinance is needed, and fine tuning the current Ordinance.
Mr. Signorelli stated a lot of the answers to the Board's questions were in his submittal. Chairman Voltz advised the Commissioners already read that. Mr. Signorelli reminded the Board it is talking about people's property, not County property; and stated he was unable to hear portions of todays discussion. Commissioner Cook suggested Mr. Signorelli meet with him prior to the next workshop.
Upon motion and vote the meeting adjourned at 3:45 p.m.
HELEN VOLTZ, CHAIRMAN