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HomeMy WebLinkAbout10252006 SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, OCTOBER 25,2006 -7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Burkeen called the Regular Meeting to order at 7:15 p.m. 2. The Pledge of Allegiance was led by Council Member Paternoster. 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 Growth Management Director, Rebecca Grohall Growth Management Manager, Jan King Human Resources Director, Debra Krueger Police Lieutenant, Michelle Morris MIS Systems Analyst, Barbara Brooke Regular City Council Meeting October 25, 2006 Page Two 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) On MOTION by Mr. Neglia and SECOND by Ms. Coy, the agenda was accepted as presented on a voice vote of 5-0. 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. 1-17 A. Approval of Minutes - October 11, 2006 Regular Council 06.155 19-22 B. Authorize Road Closures and Logistics Associated with 2007 Pelican Island Wildlife Festival (Public Works Transmittal, Letter) -Close Indian River Drive From Harrison Street North to Jackson Street from 6:30 am to 8:00 am For 5K Run -Close Sebastian Blvd. From Just Past Hess Station East to Indian River Drive and Indian River Drive From Sebastian Blvd. South to Harrison Street From 6:30 am to 5:00 pm -Restrict North Half of Yacht Club Boat Ramp From 9:00 am to 4:00 pm to Load and Unload People for Pontoon Boat Tours Mr. Neglia removed item B. On MOTION by Mr. McCollum and SECOND by Mr. Paternoster, consent agenda item A was approved on a voice vote of 5-0. Item B Mr. Neglia asked if "no pets" signs would be posted and if an event sign planned for the intersection of Indian River Drive and US 1 would be placed by the County or the City. The City Manager said no pets signs will be posted and that the event sign would be posted by us at the intersection because it in reference to a City road. Mr. Paternoster asked him to make sure the event date is correct on sign. Ms. Coy requested that police officers be informed that they are to enforce the ban of dogs during the event. Mr. Neglia inquired about security, to which the City Manager stated standard operating procedures would apply. On MOTION by Mr. Neglia and SECOND by Ms. Coy, item B was approved on a voice vote of 5-0. 2 Regular City Council Meeting October 25, 2006 Page Three 8. COMMITTEE REPORTS/RECOMMENDATIONS - None. 9. OLD BUSINESS 06.150 A. Resolution No. R-06-23 - Collective Bargaining Agreement Between the City of Sebastian and the Communications Workers of America. Local 3180 (HR Transmittal. Tentative AQreement, R-06-23, AQreement) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE BARGAINING UNIT OF THE COMMUNICATION WORKERS OF AMERICA (CWA) AND THE CITY OF SEBASTIAN FOR THE PERIOD OCTOBER 1, 2006 THROUGH SEPTEMBER 30, 2009; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read the resolution by title and the City Manager briefly described the agreement, stating union members ratified the agreement 42-4 and noted corrections for the record (see Human Resources Director memo dated October 24, 2006 and revised agreement pages attached) On MOTION by Mr. McCollum and SECOND by Ms. Coy, Resolution No. R-06-23 ratifying the bargaining agreement with CWA was adopted with agreement revisions as submitted by staff in a Human Resources memo dated October 24, 2006 and as read in the motion by Mr. McCollum on a roll call vote of 5-0. 10. QUASI-JUDICIAL PUBLIC HEARING 06.142 69-109 A. Approval of Site Plan Application. Conditional Use Permit and Waivers from Riverfront Overlay District Requirements for Two Story Hotel Resort at 1034 & 1109 Indian River Drive (City Attornev Transmittal. Staff Report. Moia Letter, Advertisement, Architectural Plan Submitted to Staff, Architectural Plan Submitted to P & Z. Site Plan) Mayor Burkeen read the title of the item and opened the hearing at 7:23 p.m., all Council members disclosed ex-parte communications with Mr. Gilliams over the last year and a half and the City Clerk swore in all who intended to offer testimony in this hearing. Attorney Richard Torpy, 202 North Harbour City Boulevard, Melbourne, representing Mr. Gilliams, said the majority of factual testimony would be presented by Mr. Moia, MBV Engineering. He said he is here to state for the record his concern for the process of review and approval of this application. He cited his experience as an Attorney for several governing bodies and said it is the code interpretation that he believes is the problem with this case, that staff interpretation of the codes is different than the interpretation of the applicant, and he asked Council to listen closely to the evidence and if it finds codes are too ambiguous to note that. 3 Regular City Council Meeting October 25, 2006 Page Four Damien Gilliams, applicant, stated he had been a resident of the community since 1985, and would speak to Council from the heart, noting when the project came to mind it was an existing property and that he hoped the City would work with him and make needed hotel rooms available to the community. He cited a Chamber of Commerce letter that indicates a need for rooms in the community. Bruce Moia, MBV Engineers, reviewed his responses to each of staff concerns as set out in the Growth Management staff report dated 7-12-06 and the MBV letter to Planning and Zoning Commission dated 7-21-06 both being set out in the agenda packet, individually as item ge - building coverage, 9f - floor area ratio, stating staff's interpretation of the code is incorrect and the applicant is way below the requirement, 9h - should now show compliance, 9j - the material has not yet been provided but would be stucco with metal roof, 91 - there is no code requirement for them to put it where planned, 9m - he does not know of any code that that sets out a parking stall radius standard of 25', 9n - this is a private secured resort only for use by its patrons and not open to the general public and not mixed use so there should be no additional parking required; 90 - a variance has been requested for backup parking because the existing use already has backup parking, 9p and 9u - both are variance requests, 9z drainage - they would pursue SJRWMD permits, 12a - material would be stucco with metal roof, 12b -mechanical equipment would be screened, 12c - also a parking issue, 13b - has applied for a variance, 14 - traffic impacts are stated on the plan, ,15d - location of proposed utility service was provided, 15e - location of proposed structures have been fully dimensioned on the plan, 15j - landscaping calculations have been included in the variances, 151 - they have made efforts to save oak trees on the west side, 12m - they could adjust the size of palms, 12p - this can be shown and they are not affecting anything off site of their property, 22 - drainage concerns would be addressed and a variance has been requested for parking deemed hazardous by the Engineering Department, 23 - this is a secured private resort and the uses are accessory for. use by the patrons. He said he believes they have met the intent of the code and that he would respond to questions from City Council. The Growth Management Director said the items before Council tonight are consideration of three separate actions which are conditional use approval, approval of three waivers from the riverfront overlay district requirements and site plan approval, and in addition the Board of Adjustment would have to consider nine variances from the' Land Development Code at another time. She said staff has reviewed the site plan numerous times since first submitted in 2003, and spent hundreds of hours in review. She said staff is ready to rebut each statement with specific code citations, believes the code is very clear and not open to interpretation. She used as an example, "Floor Area Ratio is a measure determined by dividing the gross floor area of all buildings on a lot by the areas on that lof' and goes on to define "gross floor area" as "the areas of all floors of a building including finished basements and all covered areas including porches, sheds, carports, and garages." 4 Regular City Council Meeting October 25, 2006 Page Five Mr. Neglia asked about the nine variances and was told they are set out on circle page 84 of the agenda packet but the City Attorney advised the variances are not set for discussion tonight. Mr. Neglia asked if item 9m relative to typical engineering standard of 25' radius was the City's standard, and the Growth Management Director cited LDC Section 54-3-10 #5e4 which states, "minimum radius on all commercial driveways shall be 25 feet': In response to Mr. Neglia, the Growth Management Director said the applicant has shown the location of the dumpster but not how it would be screened and they been asked to determine if there is not a better location for the dumpster that doesn't block the waterfront view. In response to Mr. Neglia, Mr. Moia said a four-foot decorative security fence around the pool is planned which would not be accessible without going into the resort. In response to Mr. Neglia's concern about preservation of trees, Mr. Moia said the best quality trees preserved would be in front of the building. Ms. Coy expressed concern for the four-foot fence and asked how it would keep people out and Mr. Moia responded that resort staff would participate in keeping people out who are not patrons, and that the breezeway would have a gate. Ms. Coy said this plan needs some tightening up and would want to see more information about security, because the applicant has stated that the tiki bar and the marina would no longer be open to the public and only invited guests of residents of the motel would be able to enter. Ms. Coy then cited several sections of the code that are very specific and not ambiguous including floor area ratio, noting that Mr. Moia had forgotten LDC requirements of gross floor area set out in Article 12 Section 54-5-22.2 which would include all surface in the tiki bar; that Article 10 Section 54-3-10.2 covers screening of waste containers; that Article 10 Section 54-3-10.2 states that minimum radius on all parking shall be 25 feet; noting requirements for mixed uses as "the requirement for parking spaces shall be equal to the sum of all uses computed separately" and here we have to decide if this is a resort or a separate motel, marina, bar, etc. She said we don't want a fence that would obscure the view of the river and rely on bartenders and other resort personnel to police the area; that if we believe it is a resort then the applicant may be close on the parking problems; that she finds it hard to believe the 15 boat slips anticipated would only be used by resort residents in 39 rooms; that backing up into a public street is set out in Article 10 Section 54-3-10.6 'general design standards' which states no backing into a public street and that there should be an aisle or driveway; that it is known that if this project kept the exact footprint as it has today it would be grandfathered but that is not the case, but the applicant has totally changed the footprint, and that entries and exits are required by Section 54-3-10.7. She said she was not interpreting data but reciting the code. She then cited internal circulation 5 Regular City Council Meeting October 25, 2006 Page Six system requirements, which were not hypothetical but code; then went on to the tree and landscape code Section 54-3-14.7 subsection b.i. which sets out criteria for removal of specimen or historic trees and requires an alternate site plan to protect the trees, stating if the applicant turned the building around he could save those oaks, that this was not opinion but code. Mr. Paternoster discussed the variances that would need to be granted stating that when someone makes a request for a variance they are asking for a deviation from the code, and stating there is a hardship to the property and not the individual. He said in this case he did not really see a hardship on the land. Mr. Moia responded the depth of the land on the river is the hardship. Mr. Paternoster suggested the pool could be removed. Attorney Torpy said a variance requirement usually occurs when there is a unique problem with the land that is enjoyed by other property owners and that there are several resorts and businesses up and down Indian River Drive which have special circumstances. He cited backing out onto Indian River Drive at Captain Hirams. He was corrected by several people that there is no backout parking at Captain Hirams. Mr. McCollum asked the City Attorney what Council would be voting on tonight. The City Attorney said City Council would vote on whether this hotel meets the conditional use criteria, then Council would want to consider whether to grant a waiver of from riverfront overlay district requirements based on whether enforcing those provisions would create an inordinate burden on the applicant that as a matter of fairness should be borne by the public in general rather than the applicant, and then whether to approve the site plan which would be subject to obtaining variances. The Growth Management Director read conditional use criteria for CWR zoning as set out in the agenda packet page 81 paragraph 24 subparagraphs 1 and 2. The City Attorney also cited general conditional use criteria in Article VI paragraphs 1 through 6 on page 81 of the packet, which also must be met. He said to grant a use of a hotel in the CWR district you have to decide on all of these criteria affirmatively. In response to Mayor Burkeen, the City Attorney said during a review of a prior site plan for this project by Planning and Zoning, the west side of the project was approved subject to approval of the east side and then the east side was denied so that vacated the approval of the west. He said there are no provisions to approve a site plan unless it is phased and he had advised Planning and Zoning of this. Mayor Burkeen said going back to accessory use issues he is confident the applicant can meet the requirement for security, and based on that, wanted to know if the City is using the same standards for others such as Best Western, Riverboat Tours and Captain Hirams Key West Inn and Sandbar. 6 Regular City Council Meeting October 25, 2006 Page Seven The Growth Management Director said she is confident the developments cited have met the parking requirements of the code and again reiterated the code states that in the case of mixed uses, parking spaces shall be equal to the sum of several uses computed separately, and in the hotellmotel section it says one space for each 100 square feet of accessory and meeting rooms, and does not say accessory bars, pools or accessory restaurants. The City Attorney said nowhere in the Code does it state that you don't count parking for accessory uses. He said after he arrived the next time Hirams came in they sat down and determined exactly what parking was required for each individual activity and the number of parking there now is the sum of all the uses. In response to Mayor Burkeen, the Growth Management Director said Riverboat Tours only has one driveway in and out and this was allowed by the Code if you cannot have two way, but you still have to provide an area to turn around and not back out into traffic. The Growth Management Manager explained the applicant received a benefit by considering the breakfast room an accessory meeting room but to call a bar an accessory meeting room is a stretch. Mayor Burkeen called for input in favor of the application. Bruce Hayes said we deserve another resort, that sometimes that this Council pulls the wool, that Mr. Gilliams wants to generate jobs and do something for the city and Council needs to stand up to the issue and say do this, said he understands codes, that half the town doesn't have water, the street lights last three minutes, and said give the man a chance. Tammy said she wants a place for her children to work, and that she cannot jump over a four-foot fence. Tiki Crumenacker, said he was new in Sebastian and had served on the Wellington P & Z and supported the resort, stating it would bring business to the area and improve the waterfront. Barbara R. Cheatam, said she had worked at Disney and they only had one security guard at the gate and employees knew who was supposed to be there and who was not. Flo Ursulean said he spent several thousands of dollars to get variances and it keeps getting canned and said staff is dictating. Ruth Sullivan, Indian River Drive, said the hearing notice she received mentioned conditional use permits and waivers from the riverfront overlay district requirements which is in place to prevent overdevelopment in the riverfront; that we have had hotels built recently and business is slow right now; that this proposed development is planned 7 ,----- Regular City Council Meeting October 25, 2006 Page Eight to go on less than 1.5 acres with 39 hotel units, a breakfast room, office, tiki bar, outside seating area, pool, and 15 boat slips which would not doubt be rented, and in her opinion this was 20 pounds of potatoes in a five pound bag. She said this is a serious case of overdevelopment and violates many regulations and requirements; the site is 50 parking spaces short; existing businesses are grandfathered and have been there for years and that cars do not back out from Captain Hirams; that the sidewalk on Indian River Drive is very popular and many use it and it is a wonderful City asset and this would create a personal injury accident just waiting to happen; that there are environmental concerns in this district to consider; she would like to see the area developed but within the code, that this plan had been rejected a number of times and asked that it be rejected again until it meets the code. She also expressed concern about Council bringing back Ordinance 0-00-08 regarding the twenty-five foot building height restriction. Joseph Palladin, Chairman of the Growth Awareness Committee for Indian River County and President of Atlantic Coast Construction and Development Corporation of Sebastian, stated that there are many variances and code infractions which could be overcome if Mr. Gilliams had a desire to do so; that there are use and safety issues; and finally that this is Sebastian, this is your riverfront and you only have so many chances to make it right and something to be proud of and it is important that Council represent itself well and serve the people well. Donna Keyes, 725 Layport Drive, Sebastian said Damian is her neighbor, she knows his family and has no personal problems with him but does have problems with this plan; said the only hardship here was that there is not enough room for this size project laid out the way it is and stated that variances have to be for conditions not created by the applicant and these conditions are created by the applicant. She said she knows Mr. Gilliams could create something very nice on this property but not this plan because there are too many things that the City has to give where the City should be getting. She said the project is too big for this lot and respectfully requested that Council deny the application. Trish Adams, 47 River Oak Drive, Sebastian said it is totally inappropriate to shoehorn this project into a property this size; that it would remove specimen trees and would have improper storm management; said the project should be reduced and sets a bad precedent for our waterfront. She said she would personally not frequent a resort only one acre in size; that it should be reduced, redesigned and have it fit the property. She recommended the application be denied as proposed. Lisanne Monier, 725 US Highway One, said the project is far too intense for the amount of land on which it is to be built, that Mr. Gilliams has utilized enough time from City staff and boards and he and his engineer have been directed to make appropriate changes time and time again and each time have refused to do so; that there is no excuse anymore, that his properties are the blight of this community, and that she is sick of her tax dollars being spent on staff time spent on this project, noting that fees have 8 I- I Regular City Council Meeting October 25, 2006 Page Nine been waived and he is not even paying now. She said it was time to stop the mockery of the governmental process, the laws and the codes, and suggested perhaps Mr. Gilliams should buy the old Bealls property and build his resort there because there would be plenty of property. The City Clerk read a letter of objection from Willard and Kathryn Siebert e-mailed to City Council members on Sunday, October 22,2006 (see attached to the minutes). The City Attorney advised City Council members said while the Siebert letter does not appear to contain any factual statements in it to this case, to the degree that it does, Council is allowed to consider that they were not under oath in those statements read into the record. Mayor Burkeen called recess at 8:45 p.m. The City Attorney advised Council not to speak to anyone during the recess relative to this case. Mayor Burkeen reconvened the meeting at 8:57 p.m. All members were present. There were no additional ex-parte communications by City Council to disclose when the meeting reconvened. Mr. Moia admitted he was in error on the gross floor area and said his client would be willing to reduce the size of building by 162 square feet, and would provide adequate screening such as a block wall for the dumpster. He noted that every driveway in the plan already has a 25 foot radius, that there is adequate parking because this is not a mixed use but is a secured resort which is a single use and parking should be based on a single use, said the fence can go to five feet and that it would be an aluminum decorative picket fence which would not block the view of the river; that the docks, if rebuilt are planned to be used only by patrons of the resort; that backup parking should be encouraged in this type of area and was not a safety concern, stating no one has ever brought him an incident of anything happening because of it; and as to clearing of the trees some trees cannot be relocated but they are preserving those that can be preserved; and that drainage would be improved from what exists there now because there is currently no retention. Attorney Richard Torpy, said you have two lawyers in the room, the City Attorney who represents City staff and can't give Council a neutral opinion and then asked that his own input be given the same weight as Mr. Stringer's input. He noted that Mr. Palladin said Council is here to serve the people and then Mr. Torpy asked people in the audience who support the project to stand up. Many people stood up and were holding "Save Our Resort". He said when you are looking at conditional use approval, the basic question you have to ask is do you want this project, and that most of the nine variances deal with parking. He said you also must ask does this improve what you have there now, noting this is currently not a clean site which already backs out onto the road, it is a bar and there is no drainage plan on the current site. He said it is going to be better than what you have now, and that backup parking was currently being done but could be better by using signage. He discussed cost benefit analysis, stating that this project was not being done out of benevolence, the applicant was not a not-for-profit 9 Regular City Council Meeting October 25, 2006 Page Ten organization and that the applicant intends to make money. He further stated the amenities within the structure would be for the use and benefit of the occupants of the structure only and there would be security measures to ensure this. He reminded Council that parking would have to be handled at another meeting, but that doesn't mean you say no to the project, if they believe this would bring a benefit to the community as a whole, he asked that Council approve it. The Growth Management Director commented that development could occur that complies with the Land Development Code, improves the waterfront, benefits the community, provides living wages; that there are businesses up and down the riverfront that have complied with the codes, and respectfully requested that Council deny the conditional use, the waivers and site plan before them. Mr. Neglia said as we have discussed over and over, he was glad trees won't be moved, that there are other buildings which have gone up recently that are blocking the riverfront, noted that as the City Attorney had said earlier we can't partially approve a site plan, said cars are not backing out on Indian River Drive in the new projects, that the hardship is to the property not the individual. He said he thought a total of 39 units with 15 boat slips is kind of questionable, that the applicant has agreed to include the tiki bar in the floor plan and that waste containers would now be taken care of, that he questions whether or not the tiki bar would be open to the public, would like to see more information on security, and suggested that perhaps Mr. Gilliams can lessen the amount of rooms or remove the pool. He concluded by stating he would like to see the project possibly scaled down, would like to see a resort here but can't see this fitting in there because there is not enough room. Mayor Burkeen noted Mr. Moia said they would reduce the square footage by 162 feet, agreed that this was a single use resort, and asked if Mr. Gilliams expanded his tiki bar as it was now he would he still be able to back out onto Indian River Drive. The City Attorney said the current use is non-conforming and under the code he could not expand or change a non-conforming use and until he changes one of those two things he can continue to backout. Mayor Burkeen asked if Com cast vehicles were still backing out across the street and the City Attorney confirmed they were. Mayor Burkeen said Council talks about economic development, that Mr. Gilliams could scale down his project that would meet the requirements but it would not be economically feasible, that he would like to see specimen trees saved, that Council makes considerations to others on the riverfront relative to boundary lines and landscaping and noted that Mr. Gilliams would create tax money for us and there would be some jobs. He said it probably is ten pounds of potatoes in a five pound sack but he would like to see something done in this area, that Mr. Gilliams could put in 39 boat slips if he wanted to, and did not think the project was terrible but there was room for improvement but hoped Council could see past that and look for conditional use on it. 10 Regular City Council Meeting October 25, 2006 Page Eleven Ms. Coy said the code states that alternative site plans shall be considered regarding saving specimen trees and no alternative site plans were ever submitted as required, and yes trees cannot be moved as the building was planned but the building could be relocated. She said she had no problem with a hotel here but she believed it was ten pounds in a five pound sack, that this plan violates nine different sections of the code, that backing out over a sidewalk was never considered by her because it is too dangerous and ordinances prohibit it. She said there are things that could be done to the site plan to reduce the scale and still have a bar and maybe a smaller pool but no effort was made to do that, and in looking at conditional use criteria she sees that the parking has to be designed to protect the public safety and welfare, that backing out over a sidewalk fails to meet provisions of conditional use, and as presented this project fails conditional use criteria. She said she would love to approve the project if it was scaled down. Mr. Paternoster said there is not much more he can add that has not already been said, agreed the applicant could improve what is there now but it needs to be scaled down, that the hardship is created by the owner, that this would be a great addition but nothing has been offered to scale it down, noted that Mr. Torpy has stated that backing out is bad and agreed that backing out is bad whether it is a tiki bar or a resort. He agreed we would be remiss if we didn't look at this and see the potential. He asked, if Council sees parking problems on the riverfront should it agree to give nine variances to every business that wants to develop down there? He respectfully said to Mr. Moia that he was taken aback by the fact that Mr. Moia missed the gross floor area ratio in the code and to Mr. Gilliams said if he could scale the project down and meet criteria Council probably would not have a problem. Mr. McCollum said if he was developing the property he would build a second floor on the west side and make a parking garage, was against reducing the ten foot perimeter landscaping to five foot because this was a buffer to a residential district and he doesn't know what is going in there, and agreed with everyone that the project needs to be scaled down. He asked what became of the height ordinance. He said property owners have the right to build but Council also had the right to require things and we have to think of adjacent property owners. He said the project has a lot of potential and can be worked on. Attorney Torpy requested that Council table the item for thirty days to give them time to respond to some of the requests of Council. The City Attorney said tabling it would say they are going to make changes, and Council could do it, but it would be no different than starting from scratch and fundamentally it would be a new site plan. Ms. Coy said Council had agreed to make a decision tonight as a clean slate, that Council agreed to review it as is, and now it needs to go back and be redrawn and it was foolish to think we could make revisions without going through staff and thirty days 11 Regular City Council Meeting October 25, 2006 Page Twelve was not long enough for staff review. She said she was prepared to review the site plan as it was, that this was our agreement with Mr. Gilliams' attorney and recommended it start from scratch. Mr. Neglia said he agreed with Ms. Coy, let Mr. Gilliams make new plans, start it from scratch and go back to Growth Management because he knows exactly what Council wants. Mayor Burkeen said he hated to put it off in all fairness. MOTION by Mayor Burkeen and SECOND by Mr. McCollum to table it for thirty days. Mayor Burkeen, in response to Mr. Neglia, said the thirty days would be time for it to go back to staff. Ms. Coy said she believed Council had met its obligation and thought to extend it further would be ludicrous. Roll call on the motion to table failed 1-4 (McCollum, Neglia, Paternoster, Coy - nay) Ms. Coy asked what would have to be found in order to approve conditional use. The City Attorney advised on the requirements for general conditional use approval by reiterating the requirements set out in the Land Development Code and on page 81 of the agenda packet, as follows: Is the project so designed, located, and proposed to be operated so that the public health, safety and welfare would be protected; does it present any unduly adverse effect upon other properties in the impacted area in which it is located; and based on the scale, intensity and operation of the use shall not generate unreasonable noise, traffic, congestion or other potential nuisances or hazards to contiguous residential areas; does it conform to all applicable provisions of the district in which the use is to be located; does it satisfy specific criteria stipulated for the respective conditional use described in this article; and is it consistent with the code of ordinances and comprehensive plan. The City Attorney went on to advise that to grant the waivers from the riverfront overlay district regulations Council must determine that granting of the waiver is necessary because strict interpretation of the regulations would place an inordinate burden on the property owner as defined by Florida Statutes, and Florida Statutes defines "inordinate burden" as "applying the code directly restricts or limits the use of the property such as the owner is permanently unable to attain the reasonable investment backed expectation for the existing use which isn't here, or the vested use which isn't here or the vested use right to a specific use of the property with respect to it as a whole and that he would permanently bear a disproportionate share of the burdens imposed for the 12 Regular City Council Meeting October 25, 2006 Page Thirteen good of the public with fairness should be borne by all people." He said that to grant the waiver, Council would have to find that applying the code creates an inordinate burden which in essence means it so unfairly restricts his ability to use the property in accordance with its rights under the code. Mr. Gilliams said he has been asked by the City to come back several times and he was asking once for the item to be tabled so he could address the issues. Mr. McCollum asked if Council decided to approve the conditional use permit to say this could be a resort what did Council just say, and the City Attorney responded Council would be saying a hotel would work at that sight, then Council could move to the next step which is the waiver, and then on to the site plan. He said Council could say a hotel would work on the site and then still reject the waivers and the site plan. Ms. Coy said the six conditional use criteria have to be in line and before she could say yes that a hotel would work, and she said she believed it would, she would not be able to say this meets the criteria. The City Attorney said if Council says this meets the conditional use, then we are already approving the waiver. He said if Council wanted to defer action on the conditional that is understandable and go straight to the others. Mr. McCollum asked if this Council approved the conditional use, but denied the waiver and the site plan then what would happen. The City Attorney said Council could defer action on the conditional use and go on to the site plan or the waivers. The City Attorney said if the applicant has no problem Council could take all three in one vote, and asked Attorney Torpy if he had any objection to combining the vote. Attorney Torpy said he would have an objection and if Council tabled this tonight they could go back and tweak the site plan, and let it go back to staff. He said by simply denying this we have no incentive to move forward. He said failing that Council could grant us the conditional use, deny the other two and at least we know that Council wants a hotel at this site, and then we could mess with the site specific issues and come back. The City Attorney said if this were the first time this had come up he could see it, but for a few years staff had been saying we like a hotel, but we have problems with certain issues and this was not new. Attorney Torpy said this was nonsense and as far as he knows, this was the first time this board had heard this project in total. The City Manager said this was the second time, that the applicant had submitted it in total and it was rejected and this is a resubmittal with fees waived, these comments have been given to the applicant before and this was not a surprise. The City Attorney said this is a resubmittal but no changes were made. 13 Regular City Council Meeting October 25, 2006 Page Fourteen Attorney Torpy said he did not want the applicant labeled a villain because he asked to have Council hear this rather than Planning and Zoning or City staff. Ms. Coy showed Attorney Torpy the different site plans that were submitted and said this was the second time, that it had been tweaked and tweaked and substantively had not changed. She said plans that were reviewed by staff were then tweaked again by Mr. Gilliams when he appeared before the board and that just doesn't normally happen. MOTION by Ms. Coy and SECOND by Mr. Paternoster to deny the conditional use passed on a roll call vote of 3-2 (Burkeen, McCollum - nay) The City Attorney then said the rest of the issues are now moot because the conditional use permit request failed. 11. INTRODUCTION OF NEW BUSINESS FROM THE PUBLIC Item that has occu"ed or was discovered within the previous six months which is not otherwise on the agenda 12. NEW BUSINESS - None 13. CITY ATTORNEY MATTERS The City Attorney said he would bring back the Ordinance for first reading relative to building height at the next meeting, and he would look to Council for guidance as to filling and other protective actions along the riverfront. He said this is the sixth jurisdiction he had represented citing when he had private practice it was his job is to get his project approved, but when he works with government his responsibility is to work for Council to make sure the codes are applied. He reported on the Clambake noting there would be money prizes for the raft race and chowder cook-off. 14. CITY MANAGER MATTERS - None. 15. CITY CLERK MATTERS - None 16. CITY COUNCIL MATTERS A. Ms. COy Ms. Coy said in working with Indian River Community College, specifically Dr. Massey and Dr. Sullivan she had found that out of 1000 or more classes offered there are only three offered in City of Sebastian. She said she would like to look at building something in Sebastian, possibly rehabbing two buildings here on the city complex site or their use. She said with Council's consensus she would like to continue the dialogue and Council concurred. 14 Regular City Council Meeting October 25, 2006 Page Fifteen The City Attorney said he would check the Boys and Girls Club contract for joint use of facilities such as computer labs and gyms during their off hours. B. Mr. Paternoster Mr. Paternoster asked when the restrooms would be open at the splash pads and the City Manager responded in a couple of weeks. He also requested sun protection for parents at splash pad and the City Manager said he would look into it. C. Mr. NeQlia Mr. Neglia requested looking into putting some protective coating over the concrete at the splash pad and the City Manager said he would look into that and a gate. D. Mr. McCollum Mr. McCollum discussed Waste Management noting their contract stated their pickup deadline is 5 pm, and said if they were not going to meet their deadline then let's bring them in here. He encouraged people to get out and vote relative to the School District issues noting this Council had done everything it could legally do to get things done, and said Dr. McGarvey had no plans to do anything about overcrowding in the middle school. He reported that when he was in Tallahassee he found out the Fish and Wildlife and Coast Guard have funding for derelict vessels. Mr. McCollum said it would be difficult for him to get to meetings during the winter months when a huge wildfire situation was expected. He stated that he would be resigning from his position on Council as of December 31, 2006 as of 11 :59 p.m. He said by Charter, because it was less than six months before the next election, Council could appoint someone by vote of Councilor it does not have to appoint anyone at this time and to meet the rule of the Charter Council could select one of the March electees at the regular meeting following the election. He said he did not think the City had ever had a more solid City Council and he feels comfortable leaving it in their hands and the best news is he would be able to discuss anything he wants with any of them and Mr. Barnes would have nothing to write about. He requested that an item relative to disussing the process for filling the vacancy be placed under his matters for December 13, 2006. E. Mayor Burkeen Mayor Burkeen said he attended the Treasure Coast Council of Local Government Meeting for Mr. Neglia and said it was nice to see everyone at the table. He said there was a discussion of the establishment of the Treasure Coast League of Cities and their 15 Regular City Council Meeting October 25, 2006 Page Sixteen intent was never to initiate the Indian River League of Cities but rather there is a movement to put together a Treasure Coast League of Cities and they would ask Mr. Neglia at his next meeting what the intent of the City of Sebastian would be. It was the consenus of Council to approve establishment of a Treasure Coast League of Cities rather than an Indian River League of Cities. 17. Being no further business, Mayor Burkeen adjourned the Regular Meeting at 10:24 p.m. Approved at the November 8, 2006 Regular City Council Meeting. ......2 // " --~. , ic:~) ~. Brian Burkeen, Mayor ATTEST: ,~ 16 CIlYOF HOME OF PELICAN ISLAND Memorandum Date: Honorable Mayor and Council Members Debra Krueger, Human Resources Director @ October 24th, 2006 To: From: Re: Agenda No. 06.150, Subject: Collective Bargaining Agreement between the City of Sebastian and the Communication Workers of America, Local 3180. In the CW A Bargaining Agreement, the following changes must be made to the agreement, and the attached amended pages are to be inserted in place of the existing pages you have. . Top of page 18, Article 10.2 (b), the word "must", should have a strike through it. . Page 30, Article 16.5 - "Effective October 1, 2006, the City will match contributions to an employee 457 plan up to 1 % of employee wages", needs to be deleted. It was never intended to be part of this agreement. It was included in the previous tentative agreement, but it has since been removed, and needs to be removed for your agreements. . Page 35, Article 20, the 2% salary increases effective April 1st, 2007, 2008 and 2009, omitted in error. The approval of the agreement will be discussed during old business, and when this item comes up, someone from City Council will have to make a motion to; (1) strike through the word "must" in Article 10.2(b), (2) delete Article 16.5 (3) add the 2% salary increases effective April 1st, 2007,2008 & 2009, to Article 20 and (4) amend the attached pages to be included in the agreement and delete the incorrect ones. I apologize for any inconvenience. If you have any questions regarding this matter, please call me at 388-8202. (b) If a bargaining unit member is absent from work in excess of three (3) consecutive due to an illness, the member must flffiSt-may be required to submit a doctor's note to the Department Head, or hislher designee, attesting to the employees ability to return to work with or without restrictions. 10.3: Use of Sick Leave: (a) Sick leave may be used for the following purposes: (1) employee ill health or; (2) medical, dental, or optical treatment required during working hours; (3) quarantine due to exposure to infectious disease; (4) employee ill health while on annual leave; (5) in connection with Workers' Compensation; (6) for death in employee's immediate family; and (7) illness of an immediate family member requiring the employee to remain at home. (b) Whenever it appears that a bargaining unit member abuses sick leave, such as when a member consistently uses sick leave immediately upon its being accrued or before and after holidays or weekends, the member shall be required to furnish a doctor's note verifying that the member was medically unable to report to work on those days. Failure to provide such notice will result in no pay for the day (s) in question. (c) Sick leave may be used for absences due to illness or injury sustained while engaged in outside employment. (d) Bargaining unit members may not use sick leave during their first sixty (60) days of employment. If an employee resigns or is otherwise terminated during the first six (6) months probationary period, he/she will reimburse the City for all sick leave used by deducting the cash equivalent of hours used from hislher fmal pay check. (e) Upon separation from employment in good standing (resignation or retirement with a two- week notice or medical separation), a bargaining unit member is eligible to be paid for a percentage of hislher accrued balance of sick leave up to a maximum of 600 hours. The percentage is as follows: If separated before completing first year 1 - 5 completed years of service 6 years to 10 completed years of service Over 1 () years completed years of service 11 years to 20 completed years of service Over 20 years of completed service -0% -25% -50% 75% -75% -100% (f) Every bargaining unit member entitled to sick leave benefits and who has been employed for one (1) full fiscal year and who does not take sick leave during a fiscal year (October 1st through September 30th) shall be given one (1) day's pay to be added to their paycheck during the first full pay period in December. Such bargaining unit member shall also be given 18 16.1: Effective April 29, 2001, the Employer agrees to contribute to the CWA/ITU Negotiated Pension Plan (hereinafter sometimes referred to as the Plan) nine (9%) of a bargaining unit member's annual gross earnings for each employee covered by this Agreement, for purposes of providing pensions on retirement, death benefits, and other related benefits for covered employees of the Employer and other contributing Employers. The Plan is jointly administered by Trustees appointed in equal numbers by the Union and Employers under an Agreement and Declaration of Trust, and has been found by the Internal Revenue Service to be entitled to exemption under the Internal Revenue Code. 16.2: Contributions shall be paid to the CW A/ITU Negotiated Pension Plan, P.O. Box 2380, Colorado Springs, Colorado 80901, no later than the 15th of the following month, together with reports on forms to be furnished by the Plan or the employer's printout, if in an acceptable format. During the effective period of this Agreement, this benefit will be paid monthly over a twelve (12) month period which will continue for the life of the Plan. 16.3: Title to all monies paid into the Plan shall be held exclusively by the Trustees in trust for use in providing the Benefits under the Plan and paying its expenses. 16.4: The Employer recognizes that in addition to the Union's right to enforce this section, the Union shall have the right in its discretion to take any legal action necessary to collect any contributions or monies due and owing to the Plan and to secure delinquent reports. The Employer further agrees that the Union shall have the right to collect reasonable attorneys' fees and expenses incurred in connection therewith. The Employer shall supply to the shop steward (chapel chairman) the union representative's copy of the Negotiated Pension Plan employer report forms or a copy of the Employer's printout forms on a quarterly basis. Eligibilitv: A. Only regular full-time bargaining unit members are eligible for inclusion in the CW A/ITU Negotiated Pension Plan. B. New regular full-time employees are eligible for entry into this Plan as of the first day of the next full pay period following sixty (60) days from their date of hire. ARTICLE 17 PERFORMANCE EVALUATION 17.1: Purpose: The purpose of the City of Sebastian performance appraisal program is to provide a consistent practice of establishing written goals and evaluating the performance of the bargaining unit member. It is needed to help measure, improve, and reward bargaining unit member performance, to assist departments and the agency to meet their goals. 17.2: Definitions: 30 incurred by the city for the purchase of the work boots/shoes. ARTICLE 19 DISCIPLINARY ACTION 19.1 : Disciplinary action may be taken against any employee for just cause. ARTICLE 20 SALARY 20.1: Eligible bargaining unit members shall receive a 2.5% increase to their current step effective October 1, ~2006. and eligible employees shall receive a 2% increase to their current step effective April 1. 2007.. 20.2: Eligible bargaining unit members shall receive a 2.5% increase to their current step effective October L 2007. and eligible employees shall receive a 2% increase to their current step effective April L 2008. Effeetive Oetober 1,2001, the City will provide all bargaining l:lflit members with a pay inerease of 2.5% pereent added to their base salary, i.e., excluding longevity, supplemental or any additional pay. 20.3: Eligible bargaining unit members shall receive a 2.5% increase to their current step effective October 1. 2008. and eligible employees shall receive a 2% increase to their current step effective April 1. 2009. Eff-cetive October 1,2005, the City will provide all bargaining unit members with a pay increase of2.5% percent added to their base salary, i.e., excluding longevity, supplemental or any additional pay. ARTICLE 21 SUBSTANCE ABUSE TESTING The City's Policy regarding Substance Abuse Testing that is currently in effect-will be followed for the life of this Agreement. ARTICLE 22 UNIFORMS 22.1 : The City shall provide and maintain uniforms to all members of the bargaining unit who are required to wear them. 22.2: All issued uniforms and equipment must be returned to the City. Failure to return issued uniforms and equipment will result in the bargaining unit member paying for the actual cost incurred by the city for the purchase of said uniforms. 22.3: Any bargaining unit member assigned a uniform will be required to wear the uniform at all times while performing his or her job functions. The City uniform shall not be worn at any other time or for any other reason. ARTICLE 23 TUITION REIMBURSEMENT 35 Sally Maio From: Willard Siebert [willsiebert@hotmail.com] Sent: Sunday, October 22, 2006 11 :54 AM To: Sal Neglia; Brian Burkeen; Andrea Coy; Nathan McCollum; AL Paternoster Subject: Paradise Marina Site Plan We w11l be unable to attend the public hearing on October 25, 2006 because we are currently out of state. Please note that we are directly impacted by the proposed project and have spoken against every exception to the city's riverfront ordinances at every opportunity. We are hereby requesting that our previous remarks be included as part of the minutes of the public hearing. In addition to these remarks we respectfully request that you strongly consider the following: 1) The riverfront is precious to all the residents of Sebastian and requires protection from those that would exploit it for profit. There are acceptable ways for it to develop but it must be done carefully. That is why we have ordinances in place. If the ordinaces create an unreasonable bUrden on quality development, we should consider changing the ordinances rather that granting exceptions. 2) The issue is rea11ly density. The property simply cannot be developed at the desired density under existing regulations. A lot of thought and effort went into developing the riverfront ordinances including all the issues being addressed at this public hearing. The developer has the option of scaling down the project. There will be no turning back if the exceptions are granted. 3) There is no issue of hardship. We urge you to review all the previous decisions regarding this site plan and we are confident that you will agree that it should not be permitted to proceed as proposed. We sincerely hope that this will be the final time we have to defend against this project. It just doesn't make sense that we must continue to waste staff time and effort when the issue has been decided on several previous occassions. If they returl1., please tell them to return. with a plan that meets the letter and the intent of the ordinances. This is an extremely important decision for Sebastian. We do not want overdevelopment. Our future is true1y in your hands. If you stand up to this developer, you are standing up for us. We, the citizens of Sebastian, are not afraid of threats of lawsuits and will enthusiastically support your efforts on our behalf. We appreciate your consideration of our concerns. If necessary, we can be reached by cell phone at 532- 3046 or at willsiebert@hotmai1.com. Willard & Katherine Siebert 1013 Indian River Drive Sebastian, Florida 32958 10/2412006