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HomeMy WebLinkAbout09132006 U1Y OF SEBAST~ ~:f.~~ HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, SEPTEMBER 13, 2006 -7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Burkeen called the Regular Meeting to order at 7:00 p.m. 2. The Pledge of Allegiance was led by Mayor Burkeen. 3. There was a moment of silence. 4. ROLL CALL City Council Present: Mayor Brian Burkeen Council Member Andrea Coy Council Member Nathan McCollum Council Member Sal Neglia Council Member AI Paternoster Staff Present: City Manager, AI Minner City Attorney, Rich Stringer City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams MIS Systems Analyst, Barbara Brooke 5. AGENDA MODIFICATIONS (ADDITIONS AND/OR DELETIONS) Items not on the written agenda may be added only upon a unanimous vote of City Council members (R-05- 26) Mr. Neglia recommended deletion of Old Business item 11 C, the Sebastian Sharks agreement. On MOTION by Mr. McCollum, and SECOND by Mr. Neglia, the item was deleted from the agenda on a voice vote of 5-0. Regular City Council Meeting September 13, 2006 Page Two 6. PROCLAMATIONS. ANNOUNCEMENTS. PRESENTATIONS - None 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member of City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. 1-7 A. 9-22 B. 23-34 C. 06.140 D. 35-40 06.141 41-45 Approval of Minutes - 8/16/06 Budget Workshop Approval of Minutes - 8/21/06 Special Meeting - Airport Business Plan Approval of Minutes - 8/23/06 Regular Meeting Craft Club of Sebastian Annual Shows 2006-2007 in Riverview Park- Approve Dates and Rain Dates as Requested and Charge 50% of Applicable Fees and Agreement Cooperate with City Staff for Parade and Santa Visit on 12/2 (Parks Transmittal, Application, Enzor Maggard Letter 8/21/06) E. Approve Developers Agreement for Gables (City Attorney Transmittal, Agreement) Ms. Coy removed item E. On MOTION by Ms. Coy, and SECOND by Mr. Paternoster, consent agenda items A through D were approved on a roll call vote of 5-0. Item E The City Attorney explained the provisions of the agreement and the calculations for the cost for the road resulting in $15,000 which will come to the City. On MOTION by Ms. Coy, and SECOND by Mr. Neglia, item E was approved on a roll call vote of 5-0. 8. COMMITTEE REPORTS/RECOMMENDATIONS None. 2 Regular City Council Meeting September 13, 2006 Page Two 9. PUBLIC HEARING 06.009 47-51 A. Second Readino & Public Hearing Ordinance NO.0-06-08 Construction Drainaoe Blockage (City Attorney Transmittal, 0-06-08) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING CODE OF ORDINANCES SECTION 26-2, BLOCKAGE OR UNREASONABLE OBSTRUCTION OF NATURAL FLOW OF WATER PROHIBITED; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR EFFECTIVE DATE. (ADVERTISED PRESS JOURNAL 9/6/06) Mayor Burkeen opened the public hearing at 7:05 p.m. The City Attorney read Ordinance No. 0-06-08 by title only and explained the amendments recommended at the first reading. The City Clerk noted that the agenda item title should be corrected to read 0-06-08 rather than 0-06-09 as in the agenda. Steve Buttles said $300 is too low and 24 hours is too long. Being no further business, Mayor Burkeen closed the hearing. Mr. Neglia said he was still concerned as to why the landowner would be liable for the costs if the City remedied the obstruction. The City Attorney said the only way to ensure the City is reimbursed for the work it does to correct a violation is to lien the property and that it will ultimately come out of the contractors' pockets. He further said once the costs are collected it is done and could come from either the owner or contractor. Mr. Paternoster requested clarification of "may be" rather than "shall be" regarding being brought into compliance. The City Attorney said if it is not vital and there is a lot going on it would be an operational decision by the City Manager however work stoppages would occur and fines would continue. Mr. McCollum said he appreciates Mr. Paternoster bringing this forward, and asked the City Attorney if there would be an additional $300 fine each day that the violation is not corrected and the City Attorney said there would be. He also responded that there are other codes and methods available to the City if a contractor continues working after a work stoppage is imposed. Mr. McCollum also expressed concern that if the City goes in to do work such as repair a swale and expend a lot of money and time the contractor would have the ability to appeal and the city could be held-up recovering the money. The City Attorney said the appeal is for the fines only, they would have to challenge the validity of the lien in the circuit court. Mayor Burkeen said he believes 24 hours is far too long and that the fine should be higher. He suggested 12 hours and a $ 500 fine. Mr. McCollum, Mr. Paternoster and Ms. Coy agreed with the amendments. The City Attorney said all provisions except the silt barrier would take effect immediately upon adoption; and the silt fences would have to be installed within thirty days. 3 Regular City Council Meeting September 13, 2006 Page Four On MOTION by Mr. Paternoster and SECOND by Mr. McCollum, Ordinance No. 0-06- 08 was adopted with the changes to 12 hours and $500 fine on a roll call vote of 4-1 (Neglia - nay) 06.142 53 B. Hearino of Appeal - Plannino and Zoning Commission's July 25. 2006 Denial of a Site Plan for Paradise Marina and Resort Located at 1109 and 1034 Indian River Drive (City Attorney Transmittal. See Separate Packet for Rest of Backup )(ADVERTISED PRESS JOURNAL 8/30106) The City Attorney reiterated his procedural advice as set out in the agenda packet for this appeal hearing which is a hearing to decide whether or not the decision of the Planning and Zoning Commission was supported by the evidence presented to it; and for which there is to be no public input because Council is not to consider new facts. He said if there are questions as to procedures employed that would have to come up under separate matters. (see transmittal attached to the minutes - all other exhibits provided to City Council from Growth Management Staff for this hearing were submitted under separate cover and are scanned as a permanent record as an attachment to the September 13, 2006 City Council agenda packet in Laserfiche) Bruce Moia, representing the applicant, addressed City Council and read from and gave further details on his responses to staff concerns from a letter to City Council dated August 2, 2006 (which is identical in language to a letter dated July 12, 2006 which went to Planning and Zoning) which are attached to his appeal request letter to Growth Management Department also dated August 2, 2006, which is already in the record as stated above. He specifically commented on items ge, 9h, 9i (actually 9j), 91, 9m, 9n. The City Attorney asked Mr. Moia if he appealed the staff determination when staff said that a 25 foot radius was required and Mr. Moia said he did not. Mr. Moia continued to expound on his comments on 9n, 90, 9p, 9t, 9z, 12a, b, and c, 13 a and b, 14, 15d, e, j, I, m and p, 22, 23, 24, 25 and 27. He asked that Council accept the appeal. Attorney Richard Torpy, Mr. Gilliams' legal counsel, stated he knows that staff will rebut comments presented by the engineer and requested the ability to address issues relative to legal arguments on the process of the Planning and Zoning site plan hearing. Mayor Burkeen directed that what took place at P & Z is behind us. is being appealed tonight and that Council will render a decision tonight and does not need to hear his comments. Attorney Torpy said actually Council does need to hear them because what is before us tonight is the process of the quasi-judicial hearing before P & Z and whether it was held legally. 4 Regular City Council Meeting September 13, 2006 Page Five The City Attorney stated that the request is noted for the record and if Attorney Torpy wanted to appeal from this proceeding it is preserved. Attorney Torpy said if he is being denied the right to make a presentation on behalf of his client on issues he believed are legal and relevant to the proceeding, he would need to hear the basis in law for that decision, stating that an appeal allows not only the facts but also the process required by quasi-judicial procedures. In response to Mayor Burkeen, the City Attorney said that these claims would be the basis of a cert action in the circuit court; and that by ordinance this is purely an appeal on the record and it by no means limits his claims on procedural review and they are available for certiorari review on the common law cert. Attorney Torpy said he understands this but stated this is still part of your appellate process and he must exhaust his administrative remedies prior to bringing any issue for cert and if not raised here tonight he will hear about them later in the court. He said he had never attended a Council meeting at which he was not allowed to raise all issues he believes are relevant to the appeal. He further stated this is information relative to the record of the P & Z meeting, and that Mr. Stringer is aware of the issue he intends to discuss. City Council allowed Attorney Torpy's input. Attorney Torpy, Melbourne, Florida, introduced himself, explained his background, which included representation of many land development clients throughout Brevard County and several within the State of Florida, has served as Attorney and Assistant City Attorney for many local governments and served as the Assistant City Attorney for the City of Sebastian. Attorney Torpy then went on to cite the procedures that were used and questioned whether Planning and Zoning was given a fair opportunity to review the application based on his allegation that City staff were so biased that they advised at least one member of Planning and Zoning to vote the matter down without comment. He said while he agrees that it is permissible for staff to make recommendations to boards, in a quasi-judicial proceeding the board is acting as a court, that the staff report must be available to all for review, and quasi-judicial proceedings imply that the board listening will be open-minded and objective in their deliberation. He said staff got so engrossed in the decision he believed they crossed the line and made it impossible for P & Z to give a fair and impartial determination. He then read a notarized affidavit from James Morrison of the Planning and Zoning Board dated July 28, 2006 and placed it into the record (see exhibit attached to these minutes). Mr. Torpy said he had not uncovered any evidence that Mr. Oakes and Mr. Morrison have violated the sunshine law. He said Mr. Morrison was so upset by this that he came to Mr. Gilliams' office to fill out the affidavit, said the appearance of impropriety negates quasi- judicial procedures, and it undermines belief in the system. 5 Regular City Council Meeting September 13, 2006 Page Six Attorney Torpy said this is not about whether your attorney can give you a well articulated legal case for upholding the staffs statements of your case, but whether your staff, before the applicant has the ability to present his case, has stepped into the arena of the judges and says don't listen just vote him down. He requested that Council grant the appeal, overturn the decision of the Planning and Zoning Commission, and approve the project or at least instruct the City Attorney and City Manager to formulate a process where it can be a fair and impartial hearing. He commended Mr. Morrison for coming forward with this. The City Attorney asked if there was any legal support for automatic granting an application as a remedy for violations of quasi-judicial procedures. Attorney Torpy asked the City Attorney if there is anything in the City code that allows such procedure, and said he thought if they granted the appeal the appropriate act would be to remand this back for an appropriate hearing, but the question is how do they do that with the nature of these allegations. The City Attorney asked if staff has made administrative determinations as to how a code is interpreted, isn't there a procedure to appeal that determination and Attorney Torpy responded that there are several different procedures under the City code. He said he has not seen any notice from staff relative to specific determinations in the file. Attorney Torpy provided the Affidavit from Mr. Morrison to the City Clerk, and then asked the City Attorney if he can cite any law where in a quasi-judicial proceeding staff is supposed to, out of the public, tell a board member how to vote. The City Attorney quoted a portion of the Affidavit as follows: "this is coming up for a special meeting, and please listen to the presentation, and not comment, but make sure you vote against it", and Attorney Torpy continued, "to make sure I vote it down to make sure Mr. Gilliam's project doesn't get site plan approval for Paradise Marina". The City Attorney then asked if Attorney Torpy believed this was "directing" Morrison on how to vote and was answered in the affirmative. The City Attorney then commented that this so cowered Mr. Morrison that he didn't bring it up at P & Z and then he voted against the site plan. Attorney Torpy said since the City Attorney's name is in the affidavit he did not intend to debate him and thanked Council for the opportunity to speak. The Growth Management Director gave staff presentation and cited the three separate actions denied by P & Z on July 26, 2006; 1) site plan approval; 2) conditional use approval; and 3) three waivers from the Riverfront Overlay District requirements; and additionally the applicant has requested nine variances from the Board of Adjustment. She said staff has reviewed this application several times since January 2003 and even before that with conceptual meetings. She said the issues where there are deficiencies can be divided into two groups minor and major, that minor issues are usually resolved and corrected but after 6 Regular City Council Meeting September 13, 2006 Page Seven numerous meetings, many have not been resolved. She noted that all of the issues are set out in the staff report (included under separate cover and scanned as a permanent record as an attachment to the September 13, 2006 City Council agenda packet in Laserfiche), but summarized some of them as follows: incorrect calculations of building coverages, floor area calculations on architectural plans that do not reflect the calculations on the site plan, dumpster locations being on a primary waterfront vista, bull noses of the parking islands encroach into right-of-way, and exfiltration system concerns from engineering have not been addressed. She said a site plan this deficient should not be approved. She then summarized the major issues; calculation of floor area ratio overage, parking deficiencies in the amount of 46 spaces, 22 spaces back out over the sidewalk, no maneuvering area for cars backing up except for backup over the sidewalk, that a bar is not defined as an ancillary use for a hotel in the LDC, that parking spaces should be computed equal to the sum of the uses separately, substandard turning radius, traffic statement incorrect or incomplete, perimeter landscaping not provided, and design does not mitigate the removal of several specimen trees. She said in conclusion that staff believes development can be produced on this site that meets the Land Development Code and benefits the community, described the plan metaphorically as ten pounds of potatoes in a five pound sack. She then recommended that Council uphold the Planning and Zoning decision, which was denial of the site plan, conditional use and three waivers from the Riverfront Overlay District regulations. Mr. McCollum said there is a plan dated September 7,2006 and wanted to know if it should be considered. Mr. Moia said it is merely a reproduction of the site plan with the new date of the reproduction and the City Attorney said he would not question Mr. Moia's integrity on this. Mayor Burkeen closed the public hearing. In response to Mr. Paternoster as to whether it would be appropriate for Council to continue, the City Attorney expressed his willingness to provide legal advice on that question unless he has been tainted by merely having lunch in a public place, since there is nothing in the affidavit that says he took part in the conversation, though he heard snatches of the conservation, and that there were more than these people listed in the affidavit at the table, noting it was a twelve foot table. He said the affidavit alleges staff saying please listen to the evidence presented, don't comment, vote it down so the site plan is not approved. He then advised that the basis of a quasi-judicial hearing is that it is judged fairly based upon the evidence that is presented to the board and there are no facts given to the board member under the claims of the affidavit. He said in a quasi-judicial action the board looks at the facts presented to them, applies them to the Code and make a determination, and there is nothing in the affidavit that gave him any facts. He said he personally did not hear the affiant being told not to comment, but merely asked that the application be voted down, noting staff has been asking them to vote it down in print for two or three years on the basis that staff did not feel it met the code. He advised if Council thought there was a process problem, he did not know if there 7 Regular City Council Meeting September 13, 2006 Page Eight was anything in the Code to provide for curing it. He said you are almost looking at some legal proceeding like appointing a new board or having a hearing yourself on it, however, if Council looks at the evidence and clearly determines it does not meet code provisions it could uphold the determination of Planning and Zoning. Mr. Paternoster asked if Council would compromise itself if it proceeded tonight based on these allegations. The City Attorney responded he did not know of any court where, if there were some procedural problem the applicant automatically gets approval, but rather the appeal body would still look at the evidence to see if it meets the standards of the law. Mr. Paternoster asked if there has been some compliance on the part of Mr. Gilliams and Ms. Grohall said there have been some but the major items outlined and some minor issues still need to be addressed. The City Attorney said there are items where they say they comply and staff says they don't, floor area ratio, backout parking and turning radius. He went on to describe the technical specifications for certain regulations for the benefit of Council as set out in the LDC. Attorney Torpy objected stating we are not supposed to be testifying, and it appears that the City Attorney is providing technical rather than legal advice. The City Attorney responded that part of his job description is to advise Council on interpretation of the Code. Mr. Paternoster said what you are saying is that there are ambiguities in the code and the City Attorney said there are ambiguities but may not be involving these exact provisions. Mr. Paternoster further asked if a regulation is left up to interpretation of an individual, then there is more than one avenue that can be used. The City Attorney said it states point blank that parking calculations are based upon the sum of all uses. Attorney Torpy again objected by saying that Mr. Moia states that this is a new issue not presented to the Planning and Zoning Commission. The City Attorney asked if he was arguing that quoting provisions of the code is introducing new evidence and said this issue is in fact in the Planning and Zoning transcript. Ms. Coy questioned whether there are other venues to address any improprieties that may or may not have occurred at Beef O'Brady's. The City Attorney responded that in his legal opinion, with a record on the appeal, if there are procedural arguments as to due process, those can still be raised during common certiorari action to the court, so the answer is yes. 8 Regular City Council Meeting September 13, 2006 Page Nine Ms. Coy said she feels that we are now looking to make the final determination and can look at the submittals and staffs recommendations which were presented to Planning and Zoning and, whether Beef O'Brady's did or did not occur, Planning and Zoning's decision was based on this information. She said if she had never seen this before and looked at what was given to her, she would say it was proper for P & Z to deny the site plan and she would not approve of this plan either. She said Mr. Gilliams has known of her concerns for a long time, and now looking at it fresh, she would not approve the plan that she is looking at tonight. Mr. McCollum suggested that because of controversy brought tonight if the vote does not go in favor of the applicant, we might be tied up in court, that this item be tabled until Council can schedule its own quasi-judicial hearing for another date, we take the testimony and we make the decision. He said he did not want to see staff tied up with court as to whether this was a tainted vote. The City Attorney said the code provisions would allow the Council to hold a new hearing on this. Mr. McCollum said he has no doubt that this will go to court if turned down, and again recommended a new quasi hearing by Council, which will no longer be an appeal but will be a new quasi-judicial hearing by Council. Attorney Torpy said for the record Mr. Gilliams supports the decision for a new quasi- judicial hearing before Council, and they will waive any appellate issues they may have been able to raise with the Planning and Zoning quasi-judicial process issue. The City Attorney said the code says on these appeals you can approve, deny or consider modifications and, since it would not be proper to approve modifications without a quasi- judicial determination, he believes this allows Council to conduct a quasi-judicial hearing. Mayor Burkeen said he would have no problem with conducting a quasi-judicial hearing and disregard P & Z's determination. He said what he had a problem with is the allegations and whether they are true or not, and it warrants an investigation. Mr. Neglia said this has been going on for three years, he doesn't know if there have been any improprieties, and was inclined to agree with Mr. McCollum to bring it back to Council. He advised that some of the P & Z meetings are a joke and they make statements like "I don't even take Mr. Gilliams' phone calls anymore," and advised that this is not how people should be treated and no committee in the City should do it. He said he is not happy with this letter and improprieties which he hopes is not happening. MOTION by Mr. McCollum to discontinue the appeal tonight and advertise our own quasi- judicial hearing with the Council and the applicant for October 11. McCollum withdrew his motion for comments by Mr. Paternoster. 9 Regular City Council Meeting September 13, 2006 Page Ten Mr. Paternoster said he was in full support of this. The City Attorney said the comments about phone calls from Mr. Gilliams referred to solicitations that they were receiving from the applicant. He asked that part of the motion be that staff won't talk to you about this and they won't talk to you about this. The City Manager said that under the allegations presented tonight, they say it is a denial of due process procedure if you now talk to staff or applicant, now conversely you would be tainted, so it would only be fair that the only time we talk about this is at a public hearing and that means you can't come to our office and Mr. Gilliams can't come to you. Mayor Burkeen said this is duly noted. Mr. McCollum said he is not going to put a gag order on staff and we have our normal quasi-judicial rules that we follow, Council is an elected body. MOTION by Mr. McCollum to do a quasi-judicial hearing between the City Council and the applicant on our October 11 meeting and disregard the Planning and Zoning altogether and the data considered on October 11 will be what's been presented tonight. Mr. McCollum said the public will now be allowed to give input. Mayor Burkeen asked how full the October 11 th agenda was and the City Clerk responded that there the ten charter amendment ordinances set for public hearing so he suggested we might want to set this for a stand alone meeting. Mr. McCollum changed his motion to October 25th and Mr. Paternoster SECONDED it when it was determined there was nothing scheduled for that meeting so far. Voice Vote on the motion carried 5-0. Mayor Burkeen called recess at 8:35 pm and reconvened the meeting at 8:45 pm. All members were present. 10. INTRODUCTION OF NEW BUSINESS FROM THE PUBLIC Item that has occurred or was discovered within the previous six months which is not otherwise on the agenda Jayme Dyke, Sebastian, invited Council members to participate in "A Walk to Remember" to benefit Alzheimer-Parkinson Association of Indian River County on the "A Moment's Notice Health Care" Team on November 4,2006 from 8:30 am to noon. Ms. Coy said if Council should choose to form a team she will assist or she would volunteer to help Ms. Dyke do something for her team. Regular City Council Meeting 10 September 13, 2006 Page Eleven Joe Scozzari, Sebastian, 1301 US 1, said he had a discussion with the City Manager whose concern was how did the City know Mr. Scozzari would leave at the end of one year. The City Manager responded that if Mr. Scozzari did all of the things required he could stay there as long as he wants. Mr. Scozzari said he received the run around for nine months regarding landscaping and the change of use to retail business. He submitted a list of requirements provided to him by Jan King. (See attached) Mr. Scozzari stated the City will not let him know what he needs to do next. Mr. Burkeen asked the City Manager the status, and the City Manager said staff has submitted comments to his engineer and once he meets the code requirements he is free to open his business. Mr. Scozzari asked where the change of use was. In response to the Mayor, the City Attorney stated a staff member who allowed the former leasee to operate illegally is no longer with the City and the lessee moved in improperly. Mr. Burkeen recommended Mr. Scozzari meet with his engineer. Willard Siebert asked when Council would hear input on the charter amendment ordinances and he was advised that they would hear input tonight and again at the public hearing. Robin Graves said she had presented a request for a dog park in 2003 and was happy that Council is now considering a dog park. She offered her assistance as a citizen and read some of her ideas for the park. 11. OLD BUSINESS 06.091 55-71 A. Indian River County Municipal Leaoue of Cities (IR Leaoue Memo 8/24/06, 9/18/06 Agenda, 6/21/06 COPO Minutes, Draft IRLC Charter and By-Laws) Mr. McCollum said he put this on the agenda to change his recommendation based on several issues that have come up and may be coming up in the future, and requested Council support for Mr. Neglia's request to join the Indian River League of Cities. Ms. Coy also expressed concern about the possibility of charter counties, but noted that there is also a proposal for a Treasure Coast League of Cities. Mr. McCollum said he would support an Indian River League rather than a Treasure Coast League at this time. MOTION by Mr. McCollum and SECOND by Ms. Coy to approve membership on the Indian River League of Cities with Mr. Neglia as the member. Mr. Neglia said everyone is invited to their meeting on September 18, 2006 including the City Manager. He also said if Council feels it does not want to join the Treasure Coast League he will let them know on the 18th. 11 06.008 73 06.085 75-81 06.062 83-87 Regular City Council Meeting September 13, 2006 Page Twelve Ms. Coy said she would support Indian River League at this time but not Treasure Coast. Mr. Paternoster agreed with Ms. Coy and said he was concerned about charter counties; and Mr. Burkeen agreed. Voice vote on the motion carried 5-0. Ms. Coy said all the Florida League of Cities classes they attended at the Jacksonville conference have been ordered on CD and are available to Council members. B. Quarter Round Swale Proiect Update (City Manager Transmittal, Drawing Under Separate Cover) The City Manager presented the quarter round map and read off the areas proposed for installation. He said there is an RFP and conceptual schemes drawn up and ready to go when the City Attorney approves the package. He invited the public to contact the City Manager if they have any questions about the proposed plan. Mr. Paternoster said he would like a list of areas that get the most complaints but could get it tomorrow. Ms.Coy said she supports the project. The City Manager said the contract will come back to Council for approval. C. Sebastian Football Lease (City Attorney Transmittal. Agreement) Tabled. 12. NEW BUSINESS A. First Reading Ordinance No. 0-06-09 Proposed Charter Amendment - Referendum #1 Re: Land Purchases Needino Appraisals - Schedule Public Hearino for October 11, 2006 (City Clerk Transmittal for All Charter Ordinances, 0-06-09) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND ARTICLE I, SECTION 1.02(1) OF THE CITY CHARTER; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. 12 Regular City Council Meeting September 13, 2006 Page Thirteen The City Attorney read Ordinance No. 0-06-08 by title only. On MOTION by Mr. McCollum, and SECOND by Mr. Paternoster, Ordinance No. 0-06- 09 was passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 89-91 B. First Reading Ordinance No. 0-06-10 Proposed Charter Amendment Referendum #2 Re: Fillino Vacancy for Vice Mayor - Schedule Public Hearino for October 11, 2006 (0-06-10) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND ARTICLE 2.06 OF THE CITY CHARTER TO PROVIDE FOR FILLING VACANCIES IN THE OFFICES OF VICE-MAYOR; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-10 by title only. Willard Siebert asked if this provided for the filling a vacant mayor and vice-mayor seat and the City Attorney explained the vice-mayor would move up into the mayor's seat. On MOTION by McCollum, and SECOND by Ms. Coy, Ordinance No. 0-06-10 passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 93-96 C. First Reading Ordinance No. 0-06-11 Proposed Charter Amendment Referendum #3 Re: November Elections - Schedule Public Hearino for October 11. 2006 (0-06-11) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTIONS 2.03 AND 2.06 (a) and (c) OF THE CITY CHARTER TO CHANGE ELECTIONS TO NOVEMBER; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-11 by title only. The City Attorney offered an author's amendment explaining when this will begin to take place. The following will be added to the ordinance: Willard Siebert offered the City's issues may get lost on a state and federal ballot. 13 Regular City Council Meeting September 13, 2006 Page Fourteen The City Clerk, as the City's Supervisor of Elections, advised Council that the City would bear all of the election's costs every other year because it would be the only agency conducting an election in November in odd numbered years. On MOTION by Mr. McCollum, and SECOND by Mr. Neglia, Ordinance No. 0-06-11 passed on first reading and a public hearing was set for October 11, 2006with a roll call vote of 5-0. 97-99 D. First Reading Ordinance No. 0-06-12 Proposed Charter Amendment Referendum #4 Re: Increasing Council Salaries - Schedule Public Hearino for October 11, 2006 (0-06-12) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 2.05 OF THE CITY CHARTER TO INCREASE COUNCIL SALARIES; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-12 by title only. The City Attorney pointed out that because a cost of living adjustment is included, it will be the last time Council will have to increase their salary. Maureen Cummings read a letter she has sent to the Press Journal supporting and justifying a Council increase based on the time Council's puts in. Willard Siebert recommended approval of the salary increase. MOTION by Ms. Coy, and SECOND by Mr. Paternoster, Ordinance No. 0-06-12 passed on the first reading. Mr. McCollum said he thinks this is a bad time to give Council an increase based on what is being offered to staff, but said his position is that we should keep everybody in the City consistent with expenses such as travel reimbursements, etc. He recommended that Council be given a car allowance. Mr. Neglia said he would like to see the amounts dropped to $600, $700 and $800. Ms. Coy said the only way she could agree with Mr. McCollum's recommendation to keep things consistent is if the Council salaries had kept consistent with other staff but it has been unchanged since the last charter. Mr. McCollum said he would support amounts that the Council would currently be making if the salary kept up with the cost of living. 14 Regular City Council Meeting September 13, 2006 Page Fifteen The Ordinance passed on first reading with a roll call vote of 3-2 and a public hearing was set for October 11, 2006 (Mr. McCollum, Mr. Neglia - nay) 101-103 E. First Readino Ordinance No. 0-06-13 Proposed Charter Amendment Referendum #5 Re: Notice and Time for Special Council Meetinos - Schedule Public Hearino for October 11, 2006 (0-06-13) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 2.12(a) OF THE CITY CHARTER CONCERNING TIME AND NOTICE REQUIREMENTS FOR SPECIAL MEETINGS; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Manager read Ordinance No. 0-06-13 by title only. Mr. McCollum expressed concern about emergency situations and the City Attorney read the exemption for emergency issues. Mr. McCollum said he was concerned as to the definition of emergency issues and the City Attorney said we could add "or the Mayor" or "if a public emergency exists". On MOTION by Mr. McCollum, and SECOND by Ms. Coy, Ordinance No. 0-06-13 passed on first reading as amended to strike "as defined under Florida law" and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 105-107 F. First Reading Ordinance No. 0-06-14 Proposed Charter Amendment Referendum #6 Re: 3.01 Amendino Charter Officer Provisions to Comply with Council-Manager Form of Government - Schedule Public Hearing for October 11, 2006 (0-06-14) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 3.01 OF THE CITY CHARTER TO REMOVE CONFLICTS WITH THE COUNCIL/MANAGER FORM OF GOVERNMENT; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-14 by title only. On MOTION by Mr. McCollum, and SECOND by Mr. Neglia, Ordinance No. 0-06-14 passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 15 Regular City Council Meeting September 13, 2006 Page Sixteen 109-112 G. First Reading Ordinance No. 0-06-15 Proposed Charter Amendment Referendum #7 Re: 3.06, 3.07 and 3.08 Amending Police Department References to Comply with Council-Manaoer Form of Government - Schedule Public Hearino for October 11, 2006 (0-06-15) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 3.06 AND DELETE SECTION 3.07 AND 3.08 OF THE CITY CHARTER TO PROVIDE FOR A LAW ENFORCEMENT AGENCY BUT RESOLVING CONFLICTS WITH COUNCIL/MANAGER FORM OF GOVERNMENT; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-15 by title only. On MOTION by Mr. Paternoster and SECOND by Ms. Coy, Ordinance No. 0-06-15 was amended from Law Enforcement to Police Department and passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 113-115 H. First Readino Ordinance No. 0-06-16 Proposed Charter Amendment Referendum #8 Re: 3.09 Amending City Attorney Provisions to Comply with Council-Manaoer Form of Government - Schedule Public Hearing for October 11,2006 (0-06-16) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 3.09 OF THE CITY CHARTER TO REMOVE PROVISIONS IN CONFLICT WITH CHARTER OFFICER AUTHORITY OF CITY ATTORNEY; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-16 by title only. On MOTION by Mr. McCollum, and SECOND by Mr. Neglia, Ordinance No. 0-06-16 passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 16 Regular City Council Meeting September 13, 2006 Page Seventeen 117-120 I. First Readino Ordinance No. 0-06-17 Proposed Charter Amendment Referendum #9 Re: Callino Elections - Schedule Public Hearing for October 11, 2006 (0-06-17) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA; SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO DELETE SECTIONS 4.05, 4.10 AND 4.11 AND AMEND SECTIONS 4.02 AND 4.07 OF ARTICLE IV OF THE CITY CHARTER TO COMPLY WITH STATE ELECTIONS LAW; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-17 by title only. On MOTION by Mr. McCollum, and SECOND by Mr. Neglia, Ordinance No. 0-06-17 passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. 121-123 J. First Reading Ordinance No. 0-06-18 Proposed Charter Amendment Referendum #10 Re: Charter Review Committee (0-06-18) AN ORDINANCE OF THE CITY OF SEBASTIAN, SCHEDULING AN ELECTION TO SUBMIT A REFERENDUM ISSUE TO THE ELECTORATE IN ORDER TO AMEND SECTION 5.03 OF THE CITY CHARTER TO SHORTEN THE CHARTER REVIEW CYCLE FROM SEVEN TO FIVE YEARS; PROVIDING FOR SUCH MANNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED; PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION; ESTABLISHING THE FORM OF THE BALLOT FOR SUCH ELECTION; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read Ordinance No. 0-06-18 by title only. On MOTION by Mr. Paternoster, and SECOND by Mr. Neglia, Ordinance No. 0-06-18 passed on first reading and a public hearing was set for October 11, 2006 with a roll call vote of 5-0. Ms. Coy asked if this was new and what other municipalities do and the Clerk replied she did not know about other cities but this was in response to the Charter Committee. 06.120 125-128 K. Bellsouth Easement (City Attorney Transmittal, Revised Agreement) On MOTION by Ms. Coy and SECOND by Mr. Paternoster, the Bellsouth Easement was approved on a roll call vote of 5-0. 17 Regular City Council Meeting September 13, 2006 Page Eighteen 13. CITY ATTORNEY MATTERS The City Attorney stated to get public business done, one is sometimes accused of not telling the whole story or the truth, he hoped the public realized the truth. 14. CITY MANAGER MATTERS 06.143 129-130 A. Airport Facility Leasino (City Manager Transmittal) The City Manager introduced Joe Griffin, the new Airport Director. He then went on to discuss his recommendation on the new airport administration facility and the idea of relocating the Engineering Department to the main City Hall building and leasing out the additional office space in the new airport building. Mayor Burkeen said he had discussions with the City Manager about this and asked for Council's input. though he said it is the City Manager's authority to house his departments as he deems appropriate. Ms.Coy agreed with the idea. Mr. Paternoster agreed, but asked since we received grant funding, would leases have to be for the betterment of aviation. The City Attorney said this is a joint fund between the airport and the general fund and as long as there is a reasonable diwying of the funds FAA should be alright with it. The City Manager said the general fund would take entire ownership of the building and pay the airport fund back for the land lease, and the monies would come back to the general fund. He said there has been some interest already and we can do an RFP. Mayor Burkeen advised that a motion is needed to extend the meeting. On a MOTION by Mr. Neglia and a SECOND by Mayor Burkeen, the meeting was extended until 11 :00 p.m. with a roll call vote of 4-1. (McCollum - nay) On MOTION by Mr. McCollum and SECOND by Ms. Coy, the City Manager was directed to prepare a RFP to lease out Engineering Dept. space in the new building on a roll call of 5-0. 15. CITY CLERK MATTERS None. 18 Regular City Council Meeting September 13, 2006 Page Nineteen 16. CITY COUNCIL MATTERS A. Mayor Burkeen None. B. Ms. COY Offered kudos for the new splash pad and suggested we need a bike rack there. C. Mr. Paternoster Mr. Paternoster described how Kathleen Quanick and family tried save a 50 lb. sea turtle with officer Poore's assistance. Chris Vann, Sea Turtle Rescue from Indian River Shores was able to take it to Juno Beach but the turtle did not make it through the night. He read a note from Ms. Quanick. He asked for a certificate of appreciation for the family. D. Mr. Neglia Mr. Neglia asked if there could be a gate installed on the splash pad; commended Shai Francis for her award for budget preparation which will be forthcoming in about eight weeks; and reported that someone e-mailed us to call us hypocrites for not giving City employees a raise which he says is not a true statement and says this City has one of the best employee packages citing examples. E. Mr. McCollum None. 17. Being no further business, Mayor Burkeen adjourned the Regular Meeting at 10:40 p.m. Approved at the September 27, 2006 Regular City Council Meeting. ("'.J __. . ~<<-/(. /Brian Burkeen, Mayor tl~J1 19 Submitted to Council by City Attorney at the September 13th, 2006 meeting. ORDINANCE NO. 0-06-11 Section 5. EFFECTIVE DATE. This Ordinance shall become effective immediately upon its adoption by the City Council. However, if the Question is approved, no further regular elections shall be held in March, and the first November election shall be in 2008.