Town Commission

Special Call Meeting

March 6, 2007

The Town Commission of the Town of Melbourne Beach, Florida, met for a Special Call Meeting on Tuesday, March 6, 2007, in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m.

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In attendance were Mayor William Stacey, Vice-Mayor Donnie Price and Commissioners Paul Guglietta, April Evans, and Sandy Wilson. Also present were Town Manager Jim Bursick, Town Attorney Gary Sack, William Whitelock, Building Official and Town Clerk Lenore Milan.

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Mayor Stacey called the meeting to order and offered the invocation. The entire assembly recited the Pledge of Allegiance to the Flag.

The first item on the agenda was the appointment of Citizen of the Year selection committee per Resolution No. 527, this item was tabled from February 21, 2007 regular meeting.

Mayor Stacey selected Frank Thomas as his appointment to the Committee, Vice Mayor Price selected Ann Downing, Commissioner Guglietta selected Mike King, and Commissioner Wilson advised that he would contact the Clerk tomorrow with his selection, Commissioner Evans selected Diana Beachum.

The next item on the agenda was the appointment of the Junior Citizen of the Year selection committee per Resolution No. 529, this item was tabled from February 21, 2007 regular meeting.

Mayor Stacey selected Ann Downing as his appointment to the Junior Citizen of the Year Committee, Commissioner Guglietta stated this particular Committee requires a Commissioner sit on this Committee, that they had the same appointments on both committees, went very smoothly, same time and date, recommend we do the same thing as last year and he selected Mike King. He said it worked well last year.

Commissioner Evans stated that when she was considering her appointment, her concern was that the person and their involvement in the community would have the exposure and experience to make a selection for a Junior Citizen of the Year. Commissioner Guglietta said that it was a point well-taken. It was decided to have the two Committees.

Vice Mayor stated that he would phone in his selection tomorrow, as did Commissioners Wilson, Evans and Guglietta.

Commissioner Guglietta volunteered to sit on the Junior Citizen of the Year Committee. Mayor Stacey asked for a consensus. The motion carried unanimously.

Mayor Stacey stated that the next item on the agenda was the review of Volunteer Applications to fill board vacancies; Board of Adjustment, Environmental Advisory Board, Historical

Preservation and Awareness Board, Planning and Zoning Board and Police Pension Board.

Commissioner Wilson stated that he had reviewed the applications, but didn’t think the Commission would be making appointments; that the agenda read review of volunteer applications. After a discussion regarding volunteer applications, those volunteers present were called up to speak.

Sherri Quarrie 701 Pine St. stated she was on Planning and Zoning for six years, like to donate her time again to be involved in the process. In response to Commissioner Wilson’s question, she stated she left this Board to run for Commission.

There was a discussion regarding appointments made for Alternate Members; that Alternate Members being moved to Regular Members would be voted on by the Commission.

Frank Thomas, stated that we should we have fresh blood, new young people; he said he wished they would volunteer for these Boards. He advised that he has the history of the Town and is asked questions all the time from the Boards.

This item was tabled until the next regular meeting.

Mayor Stacey advised that the next item on the agenda was the Appointment of Alternate Member to the Space Coast League of Cities, Inc., this item was tabled from February 21, 2007 regular meeting.

Mayor Stacey passed the gavel to the Vice Mayor and made a motion to nominate Commissioner April Evans as Alternate Member to the Space Coast League of Cities, which was seconded by Commissioner Guglietta. The motion carried unanimously.

Gavel was given to Mayor Stacey. Commissioner Evans was congratulated.

Mayor Stacey advised that the next item on the agenda was the discussion and possible action regarding and an Agreement between Town of Melbourne Beach and Jones Edmunds, to update the Stormwater Master Plan in the amount of $45,542, which was requested by Town Manager Jim Bursick.

Town Manager Jim Bursick explained about the agreement. He stated that several weeks ago the Town advertised for proposals from Engineering Firms to perform an update of the Stormwater master plan, we received proposals and the selection committee ranked the proposals on who would be best to perform the update, based on that ranking Jones Edmunds was the best firm to do that work. Since that time, they have been working a scope of the work He said this item was presented to the Commission at their last meeting, but there was a question regarding the actual project budget.

Town Manager Bursick advised that the cost estimate came in at $45,542, one reason was the lack of the electronic files of the original master plan from St. Johns, the other reason was the pollutant load reduction imposed by the State. He said we had budgeted $30,000. He stated that Commissioner Wilson found those files, but upon review by Jones Edmunds, they found that they were outdated and not useful; a copy of their letter explaining the reasons was distributed to the Commission prior to this meeting. We have a representative of Jones Edmunds to explain in detail. We are looking at $45,542, or we would have to look at reducing the scope of services.

Mr. Steve Szabo, of Jones Edmunds, spoke about the electronic files; he stated that while they are very helpful to recreate a more accurate master plan, but not a necessity. For the price of $45,542, it was not within their scope to re-create the master plan; they will provide a final report that will be helpful to the Town Manager and for the NPDES in the future.

Commissioner Wilson stated that the Commission was advised that we originally budgeted $30,000, but, since we did not have this disk it was $45,542, I have found this disk and saved you that task, you now state that it will still cost the $45,542.

There was a discussion regarding the FEMA, DCA Hazardous Mitigation Grant Program. Mr. Bursick advised we were awarded the grant, but it is still in the review process, which is the longest review process for a grant, he said he has submitted an updated application for higher grant funds, and it had to go back to review process.

Mr. Szabo stated that the grant application was submitted in May 2005, it is a slow process, there is a lot of competitive out there.

Commissioner Wilson spoke about spending this $45,542 for the Stormwater master plan, and that the Town may not receive the Grant money.

Mr. Szabo advised that there were several grants, that the Basin 9 Grant, an agreement was made, there was a match involved, it paid from 25%-75%, that his firm did not have any involvement and it might now have expired.

He stated that their scope was to look at the entire Town, and ascertain what projects should be done first; he said the original $30,000 may have been for cost estimating for the process of the 2002 Stormwater maser plan total project cost of $3.5 Million to do the entire. For 2005 same projects would cost $5 Million, with the increase in construction costs.

The intent is to help the Town allocate money to have funds and plan for the future and for the Town to have justification for where and why the Town is spending the money and to find where money could be saved.

Vice Mayor Price asked the Town Manager if it was his recommendation that we approve this agreement. Town Manager Bursick advised yes. Vice Mayor Price stated that we know now what we need to do and the current costs since they have changed drastically.

Vice Mayor Price made a motion to approve this agreement between the Town of Melbourne Beach and Jones Edmunds to do the update for the Stormwater Master Plan, in the amount of $45,542, which was seconded by Commissioner Guglietta.

Commissioner Guglietta spoke about this project, that the Commission has been criticized by not taking any action. He stated this is the time we need to get this done; we need to start taking action.

Commissioner Wilson advised that this was done in 2002; it was done by Outlaw Jones, then had the problem with this company, he said he went to St. Johns and got this disk, now they have the disk; we are paying for this again.

Vice Mayor Price spoke about this being something the Town must do, it was not an optional item. He then spoke about the process when doing the Town Hall he was on the Blue Ribbon Planning Committee; there were discussions about just making repairs to the old building. He said we have to move forward.

The meeting was opened to the public.

Ms. Jean Marshall, 410 6^th Ave, advised that she resided in Basin 9, which is where part of this project would take place. She inquired about the $30,000 originally spent for this project, if we could use any of that plan or was is just wasted money

There was a lengthy discussion regarding the cost being a good deal and the mistakes made in the past.

Town Manager Bursick said the Town did have a hard copy of the plan and the disk, Jones Edmunds would determine as to what portion would be useful.

Ms. Pamela Brass, 509 2^nd Ave, volunteer for testing of the Stormwater drain, she said they are a major problem, she spoke about cleaning up the Lagoon and how to improve the drains with baffle boxes; that the Town needed to move forward to keep our Lagoon beautiful, Stormwater drains very important to the Town, experts are needed, just go forward. She asked to get Mr. Szabo’s name and information to work with getting a baffle box on Second and Sixth Avenues, which will collect dirt and debris, she said the Commission should vote in favor of this.

Commissioner Wilson stated there would be a baffle box on Sixth, but he said this will take a long time to even see any visible results.

Commissioner Wilson advised that this Commission has done more for the Town regarding Stormwater problems, he is concerned about the Lagoon, but also about spending the Town’s money.

Mayor Stacey advised that we did place baffle boxes further down on Sixth, he thanked Ms. Brass for all her volunteer work.

Mr. Jason Steele, 121 Ocean Ridge Dr., a resident of South Beaches for 37 years; stated that it was a shame to waste of $30,000, the Town needs to sue that engineer. Mr. Steele stated that Jones Edmunds could not rely on the previous information from Outlaw Jones.

Mayor Stacey stated that he would place an item on the agenda regarding suing Outlaw Jones.

Mr. Steve Walters, 416 6^th Ave, stated he agreed with Mr. Steele and Commissioner Guglietta; he then spoke about the Town establishing a Utility Tax to generate $50,000 a year to be used for this purpose, and $125,000 for Stormwater repairs, staff changes, addition of three employees, increases in taxes and hopes the Town starts repairing the roads.

Mayor Stacey spoke about pursuing additional grants.

The motion carried 4-1, with Commissioner Wilson voting Nay.

Mayor Stacey stated that the next item on the agenda was the discussion and possible action regarding the action the Town Commission could take regarding the decision by the Board of Adjustment at their March 1, 2007 Special Meeting. This item was requested by Commissioner Guglietta.

Commissioner Guglietta advised that he has already filed a Form 8B, with the Town Clerk, recusing himself from voting since he would have a loss or gain by this decision. He advised that the owner of the gas station will not be a loser here, if he decides to sell it, he will take the money and leave Town. If he gets the Variances, he will build the gas station; the only people who will lose are the citizens of Melbourne Beach. He stated that he went out for a legal opinion, pro bono; he had this document, but did not distribute it as public record yet. The entire document will now be recorded as a public record, said he will.

Commissioner Guglietta spoke about the Land Development Code, what people can and cannot do. He then read that Member Gail Gowdy not legally being able to request the re-hearing. Commissioner Guglietta stated that She was a member of a quasi-judicial board, in short she is a judge, judges do not file request for re-hearing; a motion to re-consider can only be made by a member of the Board who is on the prevailing side. Mrs. Gowdy was the only member of the Board of Adjustment who voted not to grant the Variance.

He stated that, when a re-hearing is held more than 30 days following the rendition; a court appeal must be filed. Petition for the Writ Certiorari must be filed within not more than 30 days after the order of the granted Variances is rendered. (Attachment A).

Vice Mayor Price requested for that opinion to be submitted to Town Clerk and she will give it to the Town Attorney for his review and for him to report to the Town Commission as soon as possible.

Commissioner Guglietta stated, as an individual Commissioner, that the re-hearing was illegal. Commissioner Wilson’s letter was distributed; Commissioner Guglietta said it changed his mind. He said now we have two different opinions by two different attorneys; he said he felt the Board of Adjustment’s action is not legal and could lead to a lawsuit.

Vice Mayor Price stated that in light of the legal opinion, he moved that the legal opinion referred by our Town Attorney and answers to questions that the Commission have them as soon as possible, which was seconded by Commissioner Evans

The meeting was opened to the public.

Ms. Ellen Gineva, 610 Mango Dr. stated that this was done in excess of the thirty day appeal timeframe.

Mr. Jason Steele stated he respected the Town Attorney, that Commissioner Guglietta was accurate that the prevailing party must call for a re-hearing. He spoke about the need for a hardship, health, safety and welfare issue; how the gas station performed public services during Hurricanes, that this legal opinion is illegal. He advised that the Town Commission has the ability to overturn it.

Mr. Victor Burke, 2104 Rosewood Dr, stated that if the Commission reversed it, it would change the complex of the Town; that if the gas station is not upgraded it will lose its franchise.

Ms. Alice Graham, 305 5^th Ave, said she didn’t object to the gas station, she objected to the big 7-11, what they wanted to put there was too big, there was no way that property could handle it.

Mr. Steve Walters, 416 6^th Ave, advised that no one doesn’t want the gas station; he should rebuild the station, but what is proposed is a 5,000 square foot building. He said we are now being threatened with a Walgreens. He spoke about the guidelines the Board of Adjustment have.

Ms. DX Ross, spoke about the gas station having a smaller convenience store.

Ms. Jean Marshall, 410 6^th Ave, said that no one said they didn’t want the Chevron, the size is getting people upset

Ms. Lucretia Langard, 407 3^rd Ave, spoke about the plans being posted for the residents of the proposed gas station.

Mr. Bruce Black, 405 Ave A, advised that he filed a complaint, he said he agreed with Commissioner Guglietta, he stated that a decision has to be made on the legality.

Ms. Pamela Brass, 509 2^nd Ave, stated that the Commission is losing site on the issue of whether the Board of Adjustment ruling is legal. She stated she was willing to help as a pro bono attorney to help the Town.

There was a discussion regarding the events leading up to this point.

Mayor Stacey called for a brief recess.

Mrs. Downing, 801 Pine St. stated that Ms. Brass touched on something; at the March 1, 2007 meeting, the Town Attorney wrote that the Board of Adjustment had done things correctly, nothing to fault the Board of Adjustment and the end result, that they voted one way. She said he came to the defense of the Board of Adjustment and pointed out that the first decision was made properly. That Board works very very hard and they made that decision in good faith.

Mr. Ray Lewis, 308 Oak St. spoke about the Commission learning from the Hamilton deal, that this Town needs to change.

Commissioner Wilson stated he was here to uphold the Codes, to protect the Town. He stated he had an interest in this, there will be a major impact on the Town.

Commissioner Guglietta asked the Town Manager if anyone inquired about those two pieces of properties.

Town Manager Bursick stated that he did hear from a Title Company regarding those properties.

Commissioner Guglietta then asked if the Town Manager heard from a representative of Walgreens.

Town Manager Bursick stated yes, he did hear from a developer representing Walgreens.

Commissioner Guglietta stated that Walgreens is a reality. He then spoke about previous businesses on the vacant lot property.

Ms. Jan Futch, 806 Oak St., stated she didn’t receive any notice of that variance hearing.

Mayor Stacey stated that the next item on the agenda was the discussion and possible action regarding the Town Attorney’s contract, which was requested by Commissioner Guglietta.

Commissioner Wilson moved to table this item, but it died due to lack of a second.

There was a discussion regarding the Town’s Attorney’s responsibilities for the Commission and Boards he serves, the possibility of hiring another Attorney for the Board of Adjustment and the legalities of having one Town Attorney.

Mr. Marty Remark, 707 Atlantic St, spoke about the Code Enforcement Board also being a quasi-judicial Board, having its own Attorney.

There was a discussion regarding Robert’s Rules of Order.

A discussion then ensued regarding the re-hearing of the Chevron Variances and the timeframe of having thirty days to call for the re-hearing.

Town Attorney Sack stated that it had been done within the thirty days, he advised that the remedy belongs to Mr. Stelling to initiate the legal process

Mr. Steve Walters, 416 6^th Ave, spoke about the Policies and Procedures regarding making a motion, seconding that motion, and then discussing the issue.

The meeting adjourned at 9:00 p.m.

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William G. Stacey, Mayor

ATTEST:

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Lenore R. Milan, CMC, Town Clerk