TOWN OF MELBOURNE BEACH

MINUTES

TOWN COMMISSION - REGULAR MEETING

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Wednesday, September 21, 2005

Immediately following the Budget Public Hearing

Community Center

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The Town Commission of the Town of Melbourne Beach, Florida met in regular session on Wednesday, September 21, 2005 in the Community Center at 509 Ocean Avenue, immediately following the Budget Public Hearing.

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Present were Mayor William Stacey, Vice-Mayor Sandy Wilson, and Commissioners Paul Guglietta, and Donnie Price. Also in attendance were Town Manager W.D. Higginbotham, Town Attorney Paul Gougelman, Police Chief David Syrkus, and Town Clerk Patricia Burke.

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CHANGES TO THE AGENDA - Request Town Attorney report moved ahead of the Consent Agenda. At this time, the Town Attorney tendered his resignation. He stated that he was obligated to work with the Commission until someone was found to replace him. He encouraged the Commission to treat staff with respect, to increase their pay and that if you do not you will lose them. There are a number of employees that are looking for other employment. At this time, he asked that he be excused from the remainder of the meeting as it was a very difficult time for him. Mr. Gougelman stated that when an attorney loses his objectivity toward his client they need to be advised and he stated that he has lost that objectivity.

Commissioner Price stated that he was sorry to see Mr. Gougelman leave. He stated that they had come a long way together and he wished him. The Mayor and Commissioner Guglietta also wished Mr. Gougelman well and that they appreciate everything he has done.

At this time, the Mayor directed the Town Manager to begin searching for an interim Town Attorney.

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CONSENT AGENDA This section is reserved for routine, non-controversial items requiring commission action. These items are handled with a singular motion and without commission discussion. Any commissioner may request that an item be removed from consent agenda for discussion under New Business.

Commissioner Guglietta stated that he had a problem with Item A under the Consent Agenda, stating that the Board recommended denial. He continued stating that he had read the information provided and he saw conflicting information. He stated that these people have been waiting to build their house and have been before the board 3 times. He stated that he does not know what decision he should make and that he is not sure about denying this application.

Commissioner Price asked if Item A could be moved under new business. Motion by Commissioner Price to accept Items B, C, D and E under the Consent Agenda. Second by Commissioner Guglietta. The motion carried unanimously.

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PROCLAMATIONS AND AWARDS - Mayor Stacey invited Sergeant Carmine Siniscal to the podium and read his Proclamation of Retirement. The Commission wished Sergeant Siniscal well in his future endeavors.

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NON-SCHEDULED CITIZEN COMMENTS (Subject to three-minute limit) Comments will be heard on items that do not appear on the agenda of this meeting. Note, however, that state law and administrative rules prevent the Town Commission from taking any formal action on any item discussed at this time. The Town Commission may schedule such items as regular agenda items and act upon them in the future. The Mayor is authorized to limit discussion, as necessary, with each commentary limited to three minutes.

Terry Block - 310 6th Avenue - Concerned about the storm drains, stating that the Town Manager indicated that they have received an estimate regarding the pipes, but that would not be a solution to her problem. The Town Manager commented that Ms. Block requested that the Town look at the pipe in the area in question. It would cost $3,500 for a 20-foot section of pipe that is caved in. We cannot be sure that this repair would take care of her problem. He continued stating that the Department of Community Affairs is in communication with the town regarding the repair of all of 6th Avenue. Commissioner Price asked why the repair might not solve the problem. The Town Manger replied that the pipe is old corrugated galvanized pipe and that it is caved in it needs to be replaced. Commissioner Guglietta asked if the funds were available. The Town Manager replied that the funds are available.

Motion by Commissioner Guglietta to allocate $3500.00 to fix the storm drain at 310 6th Avenue. Second by Vice Mayor Wilson.

A man from Sunset Blvd. asked if the storm drain on the corner of Pine and Sunset had been addressed and if not, it should be added to the issue you are considering now.

The Town Manager was directed to look at this area as well and get an estimate.

Bruce Black 508 Ocean Avenue. Agreed that this issue needs to be addressed, but read the rules under the Citizen Comment section stating, "state law and administrative rules prevent the Town Commission from taking any formal action on any item discussed at this time. He indicated that this was nothing against Ms. Block, but the Commission needs to follow the rules. The Mayor stated that we do not have an attorney at this time. Commissioner Guglietta stated that a special meeting could be called to correct this problem. At this time, he withdrew his motion. The Town Manager indicated that the issue could be brought up at a later time in the meeting possibly under Commissioner comments.

Tom Shaw - Riverside Drive. He stated that there was 2 feet of water on Palm for four blocks and it was coming out of the storm drains. He stated that it should be the number one item on the Commission agenda for the next year. Also, commended WD for helping with the pier on his own time. The Mayor responded by thanking WD for his effort.

Commissioner Guglietta asked how far along the plans for the stormwater and master plan for repaving. The Town Manager responded that as soon as the new engineer is employed the first order of business will be the Pedway project and the second order of business will be the Basin 9 and Anchor Key projects. The third order of business is to update the stormwater management plan. He stated that his estimate is that within 2 months the Town should have a stormwater management plan and an update on the grant applications. Commissioner Guglietta suggested the possibility of securing a bond to make the necessary repairs on the drainage and the roads. Commissioner Price asked if the plan would contain an inventory of the current status of our system. The Town Manager indicated that what they are doing is using the historical data, and includes an inventory of the areas that need improvement. Commissioner Price stated that the Town would finally have an overall plan of what needs to take place.

Seth Stark - 410 Fifth Avenue. Commented on the resignation of the Town Attorney, stating that he does not know the reasons why he quit, but he thought a lot of it had to do with his comment relating to how staff is treated. He continued saying that it was hard to believe that during the hurricanes, everyone pulled together, but within months after that, it was torn apart. He believes that the times of the hurricane should be remembered and the Town should pull together. There are many people less fortunate, and he believes that everyone can get along and be happy. He continued stating that he is tired of the bickering and that he hopes the Commission takes the words of the attorney and that they get together and make things happen the way they are supposed to.

Dr. Michael Lesser - 405 Atlantic Street - Thanked Commissioner Walters for allowing him to continue to speak, it showed character. Also stated that he still disagreed with putting on the ballot the Charter Amendment. Commissioner Guglietta stated that it was not going on the ballot. Dr. Lesser stated that was good news, and continued stating what creates long-term value to a town. He stated that the Commission is taking huge amounts of time to correct problems that are easily solved. Commissioner Guglietta came up with a good solution earlier. He suggested the possibility of a charter amendment allowing the Commission to raise funds. Storm drains and roads have a value for about 10 years and he does not understand why these problems are not being solved.

Gail Gowdy - Ash Avenue - asked if the agendas for the meetings can be placed on the website faster or is there a way a list can be e-mailed out. Town Manager stated that we have a person that takes care of that and we will look into this issue.

BOARDS AND COMMITTEES (Reports from Town Boards are in order at this time.) - Ann Downing Secretary of the Williams Building Committee. Currently the building is painted on the inside and the outside will be done soon. She also commented about a fundraiser regarding the shipwreck. Tom Funk a history teacher from Melbourne High offered to do presentations about the shipwreck and we turned it into a fundraiser. This presentation will be televised on Channel 2. Tickets are $15.00. Ann indicated that she will be selling tickets every night from 5:50 to 6:30 PM

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PUBLIC HEARINGS - The Town Clerk read Ordinance 5-2005 by title. This ordinance relates to nominating petitions required of every candidate for elective town office. It provides for amending section 13-2, Nominating Petitions, by providing that the petition shall be filed in the office of the Town Clerk not less than 70 days and not more than 81 days before any general election; providing for the repeal of Ordinances and Resolutions in conflict herewith; providing for severability and interpretation; and providing for an effective date.

Motion by Commissioner Price to approve the first reading of Ordinance 5-2005. Second by Vice Mayor Wilson. The Clerk stated that this is to bring the Town into compliance with the State requirements that were changed as a result of overseas mail in ballots. She indicated that this did not effect the nominating petitions already in effect. Motion carried unanimously.

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OLD BUSINESS - There was no old business to be discussed.

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NEW BUSINESS - the first item under new business was the discussion and possible action on the creation of an Enterprise Fund for the utilization of parking meters at Ocean Park and the public beach crossovers. This item was requested by Mayor Stacey on July 27, 2005. The Mayor passed the gavel to the Vice Mayor. The Mayor asked the Town Manager to give the Commission an overview of the proposal. The Town Manager indicated that this was discussed at the first budget session and the Commission directed the Manager to bring it back for public discussion at this meeting. He continued that these would primarily be for transient beach users, and that the residents would have passes. He indicated that these were suggestions and that the Commission would have to make the decisions. It is his recommendation that the local residents be exempt from paying fees for parking. Commissioner Price stated that he believed that the consensus of the Commission was that if this were to be pursued, residents would have to have free parking. He continued stating that parking meters were a part of life. There are hundreds of vehicles that pass through our town; this is a good source of revenue. Commissioner Guglietta stated that the residents in the Town of Naples get a sticker from Town Hall and are exempt for 2 years. He indicated that the revenue from parking tickets stays in the Town; it does not have to be shared with the Clerk of Courts. Parking is limited and the revenue potential is being wasted. He continued stating that the citizens need to be involved in this decision. Vice Mayor Wilson indicated that no action was going to be taken that the Commission was looking for public input.

A resident of Sunset Blvd. stated that the ocean and beaches belong to everybody and I do not care no one should have to pay for parking. She continued that she was appalled by this suggestion.

Tom Shaw 406 Riverside - He felt that this was a ridiculous idea. He did not want this Town to become like Indialantic.

Xochie Ross - 1106 Atlantic Street - She stated that the idea offends her as well. She stated that people already park in her yard, and the meters will be filled with local residents anyway. She was also concerned with the possibility of rust and the repairs and replacement of the meters.

The Commission stated that they appreciated the feed back related to this issue.

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The next item on the agenda was the discussion and possible action regarding Mayor Stacey over stepping the limits of his authority (tabled from the September 1, 2005 Special Meeting. Original request received from Commissioner Guglietta on August 30, 2005). Commissioner Guglietta stated that about two years ago the Commission had the opportunity to buy the restaurant. The Commission told the Mayor that they did not wish to pursue this idea, but the Mayor went to Tallahassee anyway. Basically, one member of the Commission cannot act for the majority of the Commission if they do not all agree. He continued stating that there was a request for public records made by a citizen, and that request was a long document that had to be completed by the Clerk and it took her many hours to complete. The document was expensive. The requestor paid the money in cash, and then went and talked to a Commissioner who is not present tonight stating that he felt the request was too expensive. The Commissioner called the Town Attorney informed him that all the citizen had to do was come to the Town Commission and appeal the invoice and that the Commission as a body has the right to relieve the costs. That should have been what happened. However, the Mayor came to town hall and instructed the Clerk to charge the citizen $77.00 and refund the remainder of the money. I have no idea how the Mayor knew to come down to town hall. The Commission as a body can reduce the fee, and then it is the Commission that must reduce the fee, not an individual commissioner. If the Commission decides that the resident should be refunded then the entire commission must do it. If we decide that he should pay it, then we have to bill that resident because the Mayor took it upon himself to reduce it. The Charter says that the Town Clerk is under the administrative control of the Mayor. No one person has the right to speak for this Commission. Mayor Stacey responded stating that some time ago he got a call from a Mr. Dean Darling stating that he requested some records, and that he felt he was overcharged for the records and that it was not fair. He stated that Mr. Bruce Black had 300 copies made and that he was charged only $0.15 per copy. I called the Town Manger and told him that Mr. Darling felt he was overcharged. The Manger replied that he was charged according to State Statutes. The Mayor stated that about 3 weeks later the Town Attorney called him and that I should err on the side of caution and that if the man was too sue, we would have to send an attorney and we might lose the case and it would cost more than the documents are worth. He suggested that the Mayor tell the Clerk to only charge $0.15 per copy and the remainder be brought to the Commission for payment. He continued reading the section of Florida Statute regarding the payment of a special service charge for extensive research. He continued stating that if the man is destitute or indigent, the court cases state that we can forgive him if we want. Mr. Darling is present and he will plead his case tonight. Commissioner Guglietta stated that he also talked to the attorney and that no one Commissioner has the authority to do what the Mayor did. He continued stating that the attorney told him that it needed to be brought to the Commission before it was reduced. The Mayor had no right to reduce those fees. He acted unilaterally for the Commission, and no one can tell the Clerk to reduce the fees individually. Vice Mayor Wilson stated that this sounds like a he said, she said, situation. Let us just move on. Commissioner Guglietta stated that I cannot do anything. A resident stated that unless you are going to ask he be censured, what is the purpose of this discussion? Commissioner Guglietta responded that the Mayor has no more power than any other Commissioner here and he usurped that power. I could ask for him to be censured but I will not do that. Commissioner Price stated that this is a serious matter because it needs to be understood that we could get into many difficulties if we operate the town in this manner. If one citizen comes and we charge him $0.15 per copy and then another citizen comes up and talks to the Mayor and gets his charges reduced we could get into a lot of confusion, we cannot operate like this. We charge either everybody or nobody. Another resident stated that what is disturbing is if the attorney told the Mayor one thing and the Commissioner something else.

The next item on the agenda was the appeal of invoice for public records request by resident Dean Darling. (requested by Mayor Stacey on August 26, 2005). - The Mayor stated that Mr. Darling called his home regarding his concern of being overcharged for records coming from town hall. He indicated that Bruce Black got 300 pages for $0.15 per copy and he wanted to pay only $0.15 per copy as well. The Mayor stated that he told Mr. Darling he would investigate. He stated that he talked to the Manager, who told him that Mr. Darling was charged according to State Statute and stated that he dropped the matter, the he never called Mr. Darling back. About 3 weeks later the attorney called stating that, he should direct the Clerk to charge him $0.15 per copy because the Town did not have a policy, and that Mr. Darling could bring the balance to the Commission for appeal. The Mayor stated that he told the Clerk Mr. Darling was not forgiven from the charges, and that Mr. Darling would appeal the charges to the Commission at the meeting. If the Commission does not want to make him pay the charges, they can do so.

Mr. Darling - 421 Sixth Avenue - Stated that he was charged for a records request $355.75 which he paid in cash. I received word that it would be reduced and that I could possible pay at a later date after discussion by the Town Council. With that said, does the Town have a policy for records requests and what is the past prior practice of the town. Commissioner Guglietta stated that there is a policy and procedure that quotes Florida Statutes. The Mayor argued that it was Florida Statute not the Town Policy, Commissioner Guglietta stated that the Town follows Florida Statute. Mr. Darling continued stating that he paid the $77.15, which was the amount for the actual copies, which was paid, and there is a balance due of $278.15 depending upon the decision of the Council tonight. My fees were not waived they were postponed. My question is on the bill, the Town Clerk charged $22.43 per hour for almost 12 hours for this records request. This request was 406 pages at $0.15 per page and 56 pages at $0.30 cents per page, which is actually more than required by statute for the redaction of public records, and I am also being charged for 12 hours at $22.00 per hour for the clerk's time. I am also being charged for $35.73 for the Chief of Police's time. In addition, I do not understand why that bill is so high when all I should be charged is $0.15 per copy. The Mayor stated that the Town Attorney gave him the State Statutes for me to look up from the Attorney Generals office. The man paid $0.15 per copy and he feels that he is being unjustly charged. Vice Mayor Wilson asked the Clerk if she checked State Statue herself. The Clerk replied that she did. He also asked if I have charged anyone else this much. The Clerk responded that since she has been here there have been no other requests this large. He asked how many pages Mr. Darlings request was. She responded that the request was 462 pages. The Vice Mayor inquired about another request that was 300 pages. The Clerk responded that was not while she has been Clerk. The Clerk stated that she charged Mr. Darling according to State Statute says in Chapter 119.07(4)(b) says "that you may charge an hourly rate of the person preparing the record for excessive time for a record. Excessive time is defined by the Attorney Generals opinion to be in excess of 15 minutes. Mr. Darling interrupted stating that that was not true. The Mayor proceeded to read the state attorneys opinion "Extensive clerical or supervisor assistance or both, the charge must be reasonable and based on the labor or computer cost actually incurred by the agency. The agency may adopt a policy imposing a reasonable special service charge based on the actual labor cost, the base hourly salary for clerical personnel who are required to due to the nature or volume that the policy should reflect no more than the actual cost of the personnel's time sensitive to accommodating the request in such a way as to insure access to safeguarding records. The right to inspect public records insures the right to make copies. Exempt, indigent, persons or inmates from paying statutory fees, does not prohibit an agency from charging fees". Mr. Darling continued asking if the Clerk is making $22.43 per hour and is the Chief of Police making $35.73 per hour, and why was he being charged for that time.

Commissioner Price stated that we do not have a large staff, so that when you come with a request for 462 pages and I guess that it had to be checked, the time that she spent according to what the Mayor just read is provided for in Florida law that we can charge the actual labor costs. Mr. Darling asked if her base salary was $22.00 bucks per hour. Commissioner Price replied that obviously it is. Mr. Darling stated that she is making $50,000 per year. How much is the Clerk being paid? Commissioner Price stated that obviously what you are being charge is based on the law. Mr. Darling replied no it is not. The Mayor indicated that he wished he had never gotten involved in this but that he did. Commissioner Price continued stating that the law says actual labor costs and labor costs are labor costs. Mr. Darling stated that the law also reads that an agency may adopt a policy for the charge. Do we have a policy? Commissioner Price indicated that up until this moment what the town does is state that its policy is Florida law. Mr. Darling asked if he was interpreting the whole public records law as in 0.15 per copy is that what I am understanding. Commissioner Guglietta stated that Chapter 22 of the Town Policy is based on Chapter 119 of the Florida Statute. He read the prices as stated in Chapter 22. He stated that he does not believe that she has charged Mr. Darling or anybody incorrectly. She had to follow the statute. If the Commission feels that it is extensive and we choose to give him relief then we can do so. Vice Mayor Wilson asked if he was told ahead of time that it would cost this much. Mr. Darling replied that the Clerk has come to him and told him that it could be $100.00 and I stated that it was okay. Vice Mayor Wilson continued that the Town Attorney got involved in this and it seems to him that this is the first time he has seen it and it is a mess.

Motion by Vice Mayor Wilson that we charge Mr. Darling $0.15 per copy and that the Clerk or the Manager is instructed to make aware that anyone who comes to the office with a large request which we seem to have a lot of lately, that this is now going to be the way we do business. Second by Mayor Stacey. The Mayor commented that indigent persons are not entitled to copies free of charge. Commissioner Price asked if we had declared anyone indigent. The Mayor asked if Mr. Darling was indigent, or if he was employed. Vice Mayor Wilson called the question, The Mayor responded that that was the reason for this. The Clerk indicated that Mr. Darling came into the office with $355.00 cash to pay for his request. At the time he brought it, I questioned him saying that I was under the impression that he was appealing the invoice and that I was told that I was to charge him the $77.70. At that time he looked at me and said that he was not sure what I was talking about and I said that I was under the impression that you were told that you were going to be paying the $77.00 with that, he said ok, how much do I owe you. I told him that the total price for the records was $355.00. He handed me $355.00 in cash, I wrote him a receipt and he went away. A half an hour later, he called me on the phone, stating the he received a message from the Mayor saying that I had to pay $77.00 for copies and that I was going to appeal the remainder and I would like my money refunded. The Mayor stated that he did not talk to him. It was on his answering machine. The Clerk continued stating that he came back to the office and that she refunded the money. Tom Shaw called a point of Parliamentary procedure stating that there was a motion on the floor that has been seconded. Commissioner Price stated that he wanted the Clerk to continue, as he had not heard this. The clerk continued stating that she refunded the $355.00 in cash, he wrote me a check for $77.70, and he went away. That is what happened. I was told by the Mayor to write on the invoice that the balance of the account which $278.05 pending the decision by the Commission and that if the Commission decides this evening that he is to pay the entire bill it is to be brought to the Clerk the following morning. Commissioner Price asked if those were the instructions the Mayor gave me. The Clerk responded yes. Commissioner Price stated that that was an error. The Mayor did not have the authority to give you those instructions. He gave you those instructions and at this point, the bill is $355.00 and what ever the change is. If this Commission decides to forgive that bill, it is up to the Commission. I for one will not vote for forgiveness simply because that is the bill. I will vote to maintain the bill. Now, either you pay it or the Mayor pays it. It should have never happened this way. There is a lesson to be learned. The motion was tied with Commissioners Price and Guglietta voting no, and the Mayor and Vice Mayor voting yes. In the event of the tie, the motion fails.

Mr. Darling continued stating that the reason for his concern is this, On each request for photocopies of two of the employees files here in town and some e-mails on the 15th of August. On August 16, I was fired by the Town Manger. The Mayor stated that he appreciated his feelings, but this matter is closed. Mr. Darling continued stating that he is charged for these records, I received as part of these 41 pages I did not request, and I also received 20 duplicate pages. The Clerk responded stating that the personnel files were put into the copy machine, and he got whatever was in there. If there were duplicates in there, I did not search for them. The Mayor asked again if he was indigent, and if he was employed. Mr. Darling replied that he was not. The Mayor asked if he could afford to pay for this. Mr. Darling replied that it would be a hardship. Mr. Darling continued that included in this copies were seven social security numbers for Chief Syrkus and one for Officer Chris Crawford. I am not sure what I was charged for. The Mayor indicated that there was nothing he could do, he had the opportunity to plead his case and he is sorry that this happened. I would have walked 20 miles to avoid this and I assure you this is political. He again apologized and told him to pay the Clerk in the morning as instructed.

A 5-minute recess was called.

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The meeting reconvened and the next item on the agenda was the discussion and possible action for Breezeway Ordinance (requested by Commissioner Guglietta on August 30, 2001). Commissioner Guglietta stated that the reason he is bringing this up is because of a letter from Mr. Washburn about the breezeway. He indicated that he had read the ordinance and the land development code on breezeways and it says "visual corridors; corridors across the full depth of ocean beach-front properties which shall be preserved to ensure unrestricted movement of ocean breezes and to provide for visual access to the ocean." It also stated that on Section 7A-65 in any breezeway/visual corridor no structure, berms, fences or landscaping shall exceed four feet above the dune height throughout the corridors. Breezeway visual corridor shall be calculated on the basis of 25% of the ocean frontage as determined by Chapter 161 Florida Statutes. The corridors should be established parallel to the side lot lines. We are saying that our breezeway policy is in conjunction with Florida Statue Chapter 161. When it came to a piece of property, Mr. Washburn says in my opinion in a single family zoning district the breezeway requirements in the form of a side yard setback for a standard 100 foot lot the 30 foot requirement (15 foot on each side) should be a 30 foot breezeway. I see nothing in the zoning requirement that would apply to a 25% rule for a single-family district. He continued stating that there is a house on Atlantic Avenue that has a 40% breezeway, which is in excess of State Statute. Because there is not specific meaning in each area, we need to look at it and come up with a breezeway policy so that every citizen knows what is needed.

Motion by Vice Mayor Wilson to schedule a workshop to discuss the breezeway issue. Second by Commissioner Guglietta.

Commissioner Price agreed that a workshop was needed but that they needed to revisit all of our codes regarding residential. There are other areas where we are saying one thing and doing another we need to tighten up on those. One is square footage of lot size. There are many discrepancies in the code. Commissioner Guglietta stated that he had another issue regarding Ordinance 2004-1 and 2005-3 and he concurs that we need to get together and get a workshop. He proposed that the Commission think about the forming of a citizen committee consisting of one member from each zoning area and look at all codes and work with the zoning board and attorney and give the Commission a comprehensive list of all conflicting information in the code. Commissioner Price suggested that planning and zoning look at these issues. Commissioner Guglietta responded that he wanted an independent committee to get involved, but they certainly should work with them.

Vice Mayor Wilson amended his motion to include Item F discussion and possible action regarding the re-examination of Ordinance 1-2004 and include it in the same workshop. The second agreed.

Gail Gowdy stated that she hear something regarding P &Z and then I heard withdrawn, I am concerned that you will not be getting interpretations from people that are familiar with the code discussing this. She believes that P & Z and the group should meet together to work on the issues. It is P&Z's duty to change the code and bring it to uniformity. Commissioner Guglietta stated that they will be included. He also stated that there are discrepancies that need to be cleared up.

Motion carried unanimously.

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The next item under New Business is the residential site plan review for 217 Third Avenue as requested by Mr. and Mrs. David Herring. Recommendation: The Planning and Zoning Board recommended denial at its September 12, 2005 meeting. Commissioner Guglietta stated that this is the third time this has gone before the board. He asked if the Town Manager was at the meeting.

Motion by Vice Mayor Wilson to deny the request. The Mayor stated that if they have been denied three times, he would second the motion. Second by Mayor Stacey. The Town Manager stated that they have heard it three times and it was denied at the September meeting. Mike King stated that there is a three-foot walkway on a second floor level that infringes on the 15-foot side lot setback. It is a walkway, that is why we asked for interpretation from Mr. Washburn, and we asked twice and finally got it the third time. Mr. Washburn felt it was acceptable but the P & Z board did not go along with that because it will set a precedent we are recommending denial. We tried to be accommodating and allow him to appeal his case to you. Vice Mayor Wilson stated that what he is thinking is that they just discussed breezeways and corridors, this extends into that unobstructed area. P & Z felt that way, but Mr. Washburn stated that it was an overhang, but it has a railway. However, to him it is a walkway and he believes that that is not the intent of the code. Commissioner Price asked if part of the roof extends over the walkway. The response was no. Commissioner Guglietta stated that this is the reason why he wants the code clarified.

The attorney representing the Herrings stated that there was confusion, clarifying that P & Z did not deny the request three times, they have been before P & Z three times and the issue has been tabled. P & Z has only denied the request one time. He stated that he had met with Mr. Washburn and as a result generated his memo of August 19, 2005, where it states that it meets the code, but P & Z does not want to set a precedent. According to Mr. Washburn, it is an overhang. The attorney stated that there is not definition of overhang in the code. He continued stating that there is currently a home with the same type of overhang. He provided digital photos. Mr. Washburn stated that it is an overhang by nature and functions as a roof for the first level. Mr. Washburn gave his approval, but the planning board recommended a denial. As it currently stands that Mr. Washburn's conclusion that it is an overhang, meet the current code. We suggest that the Commission reject P & Z's recommendation and approve this under the current code. Mike King suggested that he was uncomfortable with an attorney going to our zoning official then our zoning official drafting a letter; second, we are concerned about a yard. He continued to read the definition of a yard from the codebook. Stating that you do not walk on an overhang or a bay window, but you do walk on what he is proposing. This is where we disagree with the zoning official. Gail Gowdy stated that he substituted words. He substituted the word inhabitable with unoccupiable which are two very different words. Our code states unacceptable. This is where we disagree. Ms. Gowdy stated that Planning and Zoning believes the code is very clear. Commissioner Guglietta stated that he did not believe it was clear. He continued that Planning and Zoning is making an interpretation and the Zoning Official is making an interpretation and the homeowner is waiting to build his home.

Commissioner Price stated that he believed that the P & Z Board did its homework. This overhang/walkway is more than an overhang and I think it would not be a problem if it did not go into the setback. Accordingly, I will be voting to accept and approve P & Z's recommendation. The homeowner's attorney stated that I have concerns that your P & Z Board is worried that a citizen has access to its public officials and feel insulted by it and number two the code portion they read to you excludes the very exception we are talking about. He continued to read the section of code again emphasizing the exceptions. If it is an exception, it is irrelevant if it is inhabitable or uninhabitable. Commissioner Price stated that he believes it is a balcony. The attorney continued stating that the Herrings are being denied their due process under the Towns code.

Alice Graham, 305 Fifth Avenue - this reminds me of "is it an appurtenance or isn't it an appurtenance we had this same discussion. The intent is that it is an overhang. I think I would agree with P & Z and the Commissioners I would not accept this.

Dave Herring property owner. This is my town and I am trying to build my dream home. I do not think I am trying to do anything that will infringe on anyone. The basis for their decision was it was considered a walkway and something that is not allowed. My argument is that how is the walkway not considered an overhang.

The Mayor commented that if I deny the recommendation by Planning and Zoning then I have a problem with the Planning and Zoning Board because they will think that I will overturn their decisions and will not work as diligently, I do not know that for sure, but this is not a good sign. I recommend that you go back to Planning and Zoning and try again. Mr. Herring commented that your professional official said I was ready to go. I do not know what your basis for experience on the P & Z Board is but you obviously have an experienced person who made a recommendation on it.

Commissioner Guglietta commented that he thinks the Zoning Official did his job, but our code is too hard to read. This is a perfect example of parts of our code that need to be fixed.

Commissioner Prices stated that the problem he was having is that the kind of structure you want to put in will be into the setback. Once this structure is built, there is nothing to stop you from screening that in and now you have a screened in porch or balcony. It is not just and overhand in the truest sense of the word.

Vice Mayor Wilson called the question. Xochie Ross stated that you cannot call something it is not. Motion carried with Commissioner Guglietta voting no.

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The next item on the agenda was the discussion and possible action regarding Policy on Public Record Requests. The Town Manager stated that the policy that is included in the packet mimics State Statute and is the policy we are asking approval for to clarify the procedures. Vice Mayor Wilson asked that this policy be posted in the reception area so that residents and people know what the policy is. The Town Manager suggested placing it on the bulletin board and on the web site. The Mayor stated that he had wished the policy had been in place a long time ago.

Motion by Commissioner Guglietta to approve the Public Records Policy as presented. Second by Mayor Stacey, he passed the gavel. The Clerk explained that fees for audio tapes and others not set by statute were already established when she took the position, which are based on the cost of the tape. The Mayor explained that the Town will now have a policy in place that will eliminate any issues like the one earlier in the agenda.

A member of the audience stated that this will make public record harder to access. The Town Manager explained that we currently bill, if it takes staff longer than 15 minutes. The town has always charged for that. If someone wants a copy that is readily available, they are charged $0.15. If it requires extensive time, more than fifteen minutes, as defined in State Statute then the labor cost of that person doing that is charged. He continued explaining that there are times when we are not capable of copying items and they must be taken off site. We charge for that time. Vice Mayor Wilson asked if a courier service could be used for that. Rather than have Pat drive over there, I would rather have a courier service do it. Commissioner Price stated that you would still have to charge. Vice Mayor Wilson stated that it was better than Pat leaving Town Hall.

Commissioner Price called for the question. Motion carried unanimously.

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REPORTS:

Town Attorney - there was no report. The Mayor indicated that what is important now is to get someone in place right away. The Town Manager stated that it is an unfortunate situation and not a single act of any one Commissioner.

Town Manager - Earlier you approved a consent item of agreements for me to execute with FEMA. Somehow, the FEMA issue regarding reimbursement fell through the cracks. However, as it turns out, it was a good thing. They are now working with us one to one and thins are moving rapidly. FEMA is waiting for the agreements you approved tonight.

Town Commissioners - Commissioner Price reported that the most recent item was the Annual League of Cities Conference that some attended. One thing that came out of it was a vendor to do the work on the pier. We met him at the Conference and he is very competitive and will be doing the work. He stated that he could not stress enough how important it is for the Town to interact with officials from other Towns. There is so much knowledge and information to be shared. The continued stating that we are not unique, that every problem we have other cities have also had or are having.

Commissioner Guglietta stated that there was no meeting of the MPO Board Meeting this month. There will be two meeting in October, which I will attend. There is also a meeting on the proposed road and street repairs in the County. The main issue as always is funding. He continued to ask if the Town Manager had talked with the attorney regarding the agreement with the Fire Department. The Town Manager replied that he had and it has not been completed. He indicated that he would continue to work with him to get these outstanding items taken care of.

Vice Mayor Wilson stated that the Town Attorney had many files regarding the Town. He asked if he was going to turn those files over. The Town Manger indicated that there are some files that he has and they will be returned and that he will follow up. Typically, he does not maintain files, and those need to be given to the new attorney. Vice Mayor Wilson stated that the felt we should get someone in and get a feel to see if we want to make it permanent at a later date, we can do so. The Town Manager agreed and felt that we need to see and interview.

The Mayor commented that he met with the Melbourne Beach Cub Scouts and had a good time. He also stated that since the budget process was completed he and his wife will be going to Ireland for vacation and will be out of Town.

The Town Manger commented that last week I attended the Town Managers meeting and one of the issues brought up was to educate the community and bring forth the possibility of an additional one-cent sales tax dedicated for whatever the cities and counties decide. What was talked about were infrastructure. We were asked to bring this issued to our elected body. If the town wishes to participate it could bring over $200,000.00 for Melbourne Beach and are asking that if you want to participate are they willing to donate $1.00 per capita, approximately $3,800.00. He continued stating that he was not particularly comfortable with it, but is not sure. There is still much to be said regarding this issue, and I think it is worth looking out, but I am not recommending a check be written at this time.

Vice Mayor Wilson stated that he did not think the residents would go for additional taxes. The Town Manger indicated that it would go into an education fund.

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ADJOURNMENT - Motion by Commissioner Guglietta to adjourn. Second by Commissioner Price. Motion carried unanimously.

William G. Stacey

Mayor

ATTEST:

Patricia J. Burke, CMC

Town Clerk