Special Commission Meeting

Thursday, September 15, 2005

MINUTES

The Town Commission of the Town of Melbourne Beach, met in special session in the Masny Room, 507 Ocean Avenue, on Wednesday, September 15, 2005 beginning at 7:00.

Present were Mayor William Stacey, Vice Mayor Sandy Wilson, Commissioner Paul Guglietta, Commissioner Donnie Price, and Commissioner Steve Walters. Also in attendance were Town Manager W.D. Higginbotham, Town Clerk Patricia Burke and Town Attorney Paul Gougelman.

Mayor Stacey called the meeting to order and led the entire assembly in the invocation and the Pledge of Allegiance to the Flag.

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The first item on the agenda is the discussion and possible action on Ordinance 2004-01 and Ordinance 2005-03 as requested by Commissioner Guglietta

Motion by Commissioner Guglietta for the Commission to reconsider Ordinance 2005-03 and that it not be placed on November ballot. Also, that the Commission reconsider Ordinance 2004-01 for discussion and possible action. Second by Commissioner Price

Commissioner Guglietta stated that the reason he is asking for the ordinance to be pulled from the ballot is because Ordinance 2004-01 has too many flaws and if we put it on the ballot it will be part of the town charter. He believes that before this item is put on the ballot it should complete. Once it is in the charter it supersedes anything else and it must be followed. One of the areas that needs to be addressed is that the maximum height of structures in 4RM and 5RMO were 35 feet. They were changed by Ordinance 2004-01 to 28 feet. Those structures that are more than 28 feet are nonconforming. If something happens in those zoning areas (an act of God or hurricane) or those buildings above 35 feet are destroyed, under the new code you cannot build that building back to 35 feet. It can only be built to 28 feet. There is nothing in Ordinance 2004-01 that relieves those people. The people will lose their homes. No insurance money will replace the things you lose when your home gets destroyed.

I don't think this is fair. This ordinance was to insure that we as Commissioners allow ourselves to listen to our community. The majority of the community that I have talked to don't want any large buildings in Melbourne Beach. That was the intent of the ordinance, but we need to correct the errors and not put them on the ballot. What we have done is tried to tighten the ordinance. He continued stating that the Commission needs to either tweak Ordinance 2004-01 or rewrite it. I am still in favor of 28 feet in the Charter, but I do not want a bad Charter amendment. We should address Ordinance 2005-03 and improve this or re-write the ordinance. We need to be sure that those people can re-build their homes to 35 feet. Maybe we should come up with a committee with members representing each of the zoning areas in addition to the Planning and Zoning Board and re-visit 2004-01 and work together to come up with a draft to bring to the Commission. I don’t think we should rush to put this item on the ballot.

Vice Mayor Wilson called the question.

Commissioner Walters stated that 2004-01 is in effect now so theoretically if the Breakers came down now you could not rebuild. I believe that to fix this problem all you have to do is put a clause stating a current existing building over 28 feet is exempt. All this Ordinance does other than defining height asks do you or do you not want the height to remain 28 feet in the Town of Melbourne Beach. He continued stating that what we are trying to do is let you decide so that future Commissioners can’t decide with two readings of an ordinance change it to 55 feet. Three votes can change it at any time. We are trying to prevent that from happening. It is not the intent for you in the Breakers to not be able to rebuild. We are going to have to go back and address Ordinance 2004-01 and put that exemption in. Unless the attorney feels this is a substantial change it is nothing more than adding a clause that exempts any existing building over 28 feet.

The Attorney stated that the ordinance has already been adopted, and you would have to adopt another ordinance which would involve a trip to Planning and Zoning for consistency findings and two readings. You don’t have the time as far as the Supervisor of Elections is concerned.

Commissioner Price stated that I am the one voting against putting it in the Charter. I think for the commission to ask the people of the Town to put a flawed ordinance in the Charter is an abdication of their responsibility regarding what you have elected them to do. If it is not in the Charter if there was a problem, this Commission would have the authority to solve the problem very quickly. Once it is in the Charter it would take a referendum to vote on whether you can rebuild or not. I have been arguing this for months. This whole thing started with the Hamilton house. It has led to putting a height restriction in the Town Charter where it does not belong. We passed an ordinance for 28 foot height but we ability to address any problems that ordinance may cause. By putting this into the Charter we would have no ability to solve a problem. That is a serious error.

Vice Mayor Wilson stated that he tried to limit the height in the Town. I have been steady on that. He stated that Commissioner Price has constantly advocating higher buildings residential and almost anything. You can be sure that if it comes up and two other Commissioners agree with him, the height will go up. He stated that we only know what people are telling us at the meetings. The whole purpose of 2005-03 was to find out what the people wanted. We will continue to try to defend the height of 28 feet. It was slowly pulled apart by those who want higher buildings. I am going to vote to drop it tonight, we should spend more time on it. We worked on the height ordinance 2004-01 for at least a year. You have to put something in that is enforceable. 2004-01 is the height ordinance that was passed, he believes that it can be worked on. It can be corrected. This is a sad situation, where we tried to do what we thought was best for the town and it was slowly pulled apart.

Commissioner Price stated that he didn’t mention any names, but his name was mentioned and he wished to reply. No where in this town in any record will you see any reference made that advocates over 28 feet by Commissioner Price so that was a lie. The Mayor called a ten minute recess.

The meeting reconvened with Commissioner Price continuing stating that the situation presently exists where we have an ordinance passed in 2004 that limits all new and rebuilt buildings to 28 feet. What that means that without an exception the Breakers or other homes could not rebuild. He continued stating that if it goes in the Charter you will have to have a vote of the citizens to rebuild you house. That is what was going to happen.

Commissioner Guglietta stated that the Town of Melbourne Beach is not the only town that has a Charter amendment regarding limiting height. Cocoa Beach just lowered their height limit from 85 feet to 45 feet, but they put a provision in their ordinance to make exceptions for the buildings which existed before July which allows for those buildings to be rebuilt to their previous height. We are not unique in this situation. The reason why he brought this to the Commission was because there were flaws. It doesn’t seem fair to penalize those people that are in the 35 foot areas. If it was in the ordinance to grandfather them in I would be okay. When it comes to writing an ordinance, the Commission tells the manager and attorney how we want it written. They come back with what we want. If it is not what we want we tell them to go back and change it. As a Commission if we tell them that is what we want then we expect to get it. If there is a flaw it is our fault for it being there. We should attack the issue not the ordinance. We have now found it needs to be taken care of so let us do it and stop the fighting.

Mayor Stacey stated that he wants to do what is best for the Town. This is a democracy, we want to do what is best and that is what I will do while I am up here.

Commissioner Walters commented that there was no intent to hurt anyone. There was never any attempt to prevent anyone from rebuilding their home. We even can't define what temporary or permanent means. I am going vote to stop this process immediately and go back to the drawing board.

The discussion was opened to the public.

Phil McKay resident of the Breakers at 2203 Atlantic. Thanked the Commission for reconsidering the question. The problem goes away with the inclusion of the Cocoa Beach exception. Nothing will effect those structures in existence prior to this ordinance.

Fritz Hess 1905 Atlantic. One thing I saw was sharing, each pouring water into each other's glass that was a good sign. Most of us that have lived in the Breakers did not know about Ordinance 2004-01. We have just gone through a re-build and according to that ordinance we should not have been allowed to rebuild. I think you have to go back and see what needs to be taken out and added and see if you can come out with a better plan. No one has ever put this in a language that everyone can understand. This has already had an effect. Someone came to buy a unit until they found out about this. The person pulled their bid to purchase. Both parties lost because the property becomes unable to be sold. We have people that will work with you, engineers and lawyers. When it goes on the ballot hopefully we can all live like good neighbors.

Tom Shaw 406 Riverside. Problem with Commissioner Wilson’s comment that everyone against the Charter change is for an increase in height. He stated that he is not for an increase in height, but is against changing the Charter. It is like changing the Constitution of the United States, it should only be done sparingly and usually when it is done, there are unintended consequences. He commented that Vice Mayor Wilson also stated that three people can change everything; well three people almost changed everything right now. Mr. Shaw continued stating that if three people wanted to change the ordinance to more than 28 feet they would be re-called. Thank you for pulling this off the ballot.

Bruce Black 508 Ocean Avenue. It is more than just the height. That is not what it is about. There are so many other flaws. Page 8 talks about 3RS and 2RS that is the majority of the town. It is also about zoning, there are many flaws in this document. I believe that when it started there was a goal and it was written to meet that goal. There are non conforming lots. It is not just about height.

Commissioner Walters suggested that Mr. Black was saying that in the event the ordinance passed that someone with a small lot could not build 1400 feet or 28 foot tall on their lot. Mr. Black responded that if it was destroyed they could not, because they have to build to the current codes. He continued that it is not only height

Don Ruffin 2850 Atlantic stated that on many lots if the home was destroyed the footprint allows for only1000 square feet and up to 28 feet in height.

Gail Gowdy 205 Ash Ave. stated that she was not sure she understood the argument of the last two people. What the ordinance was doing was talking about height in residential zones. It does not talk about set backs and lot requirements or zoning. If that was broken it was broken before, it does not have anything to do with the height which is what this ordinance is talking about.

Sean Murphy 1211 Atlantic Street this ordinance is in the books. You have to get a variance. Right now you can't rebuild. The intent is not to limit those to rebuild. Rebuild and add grandfathered in. The bluff line is where the line is drawn. They cannot rebuild now, because of density on the oceanfront lots, the property line is drawn at the bluff line.

Xochie Ross 1106 Atlantic Street it is obvious it was not the intent to not allow the Breakers to rebuild. We do have provisions for mistakes. She read the errors or omissions section of the code. You had an oversight you did not know you had. It can be corrected. This is a height ordinance and they do not have a height issue.

Commissioner Guglietta called the question. The Mayor asked the Clerk to repeat the motion. She did so. The motion carried unanimously.

At this time, the Mayor called a ten-minute recess.

The meeting reconvened and was adjourned.

Motion by Commissioner Walters adjourn. Second by Vice Mayor Wilson. The motion was carried unanimously.

William G. Stacey

Mayor

ATTEST:

Patricia J. Burke, CMC

Town Clerk