Town Commission

Regular Meeting

July 18, 2007 - Revised

The Town Commission of the Town of Melbourne Beach, Florida, met in regular session on Wednesday, July 18, 2007, in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m.

***

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

***

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

***

Approval of Minutes

Commissioner Wilson amended the minutes of the June 20, 2007 meeting, under Presentation by Special Guests regarding the Melbourne Beach Improvement Company. Vice Mayor Price made a change in his report regarding Congressman Weldon. Vice Mayor Price also amended the June 6, 2007 Special Call Meeting minutes, adding “The hiring of a Town Attorney was a process and is still in effect, the next step is to enter into a contract”.

Vice Mayor Price made a motion to approve the minutes, as amended for the June 20, 2007 Regular meeting, and the June 6, 2007 Special Call Meeting, and the May 2, 2007 Workshop, the June 30, 2007 Special Call meeting and the June 5^th and 6^th Joint Meetings, which was seconded by Commissioner Wilson. The motion carried unanimously by those members present.

***

Consent Agenda

Approval to re-schedule the regular Town Commission meeting on Wednesday, August 15, 2007 to Monday, August 13, 2007.

Adoption of the Visioning Plan to be used for the preparation of the State-required Evaluation and Appraisal Report.

Authorization for the Town Manager to execute the associated Agreement between the Town and the State of Florida, Division of Emergency Management for Stormwater drainage improvements to Anchor and Pelican Keys, providing for total Phase I project costs of $16,500 with a Federal cost-share of $12,375 or 75%.

Authorization for the Town Manager to execute the associated Agreement between the Town and the State of Florida, Division of Emergency Management Stormwater drainage improvements to Sixth and Harland Avenues providing for total Phase I project costs of $60,000 with a Federal cost-share of $45,000 or 75%.

Vice Mayor Price made a motion to approve the consent agenda, which was seconded by Commissioner Evans.

Commissioner Wilson inquired as to what needed to be done for item c.

Town Manager Bursick explained about the Stormwater Master Plan, the work done several years ago, that these funds could be used since there is a great deal of work to be done, with standing water in the swales.

The motion carried unanimously by those members present.

Presentation by Special Guests

Ms. Lisa Good, representing the National Pollutant Discharge Elimination System (NPDES), a member of WAV, she explained: Watershed, an area of land that has rain that drains off elsewhere, hits rooftop and pavements, storm retention ponds, she stated, we have to have it.

Action, we take action on our watershed every step we take every day. Volunteers, to let people become aware and educated. She spoke about the Cuyahoga River in Cleveland bursting into flames, which created the Clean Water Act of 1972. Ms. Good asked everyone to have a water barrel, collect the water, then reuse it. Her last comment was that all animals are required to be on a leash in Brevard County. This satisfied our community outreach.

There was a five-minute recess.

Mr. Don Riordan, of the Rotary International presented $1,000 to the Melbourne Beach Volunteer Fire Department, Inc.

Non-Scheduled Citizen Comments

Mr. Dean Darling, 421 6^th Ave, spoke about the Commission commending Sergeant Dovale for his fine work in recognizing the description of a suspect in a hit and run and assisted in apprehending that suspect.

Closed to the public.

***

Boards and Committees

The first item was the appointment of an alternate member to the Board of Adjustment for a three-year term ending July 18, 2010.

Commissioner Wilson made a motion to appoint Frank Kelley to the Board of Adjustment. The motion died due to a lack of a second.

Commissioner Wilson read Mike Rowe’s letter of resignation.

Vice Mayor Price made a motion to appoint Mike Rowe, to the Board of Adjustment, which was seconded by Commissioner Evans. The motion carried 3-1, with Commissioner Wilson voting nay.

The next item was the appointment to the Planning and Zoning Board for a three-year term ending July 18, 2010.

Commissioner Wilson asked the Town Clerk about Mike West. She advised that he knew his term had expired, and was advised by his attorney, to leave his status as it was.

Vice Mayor Price made a motion to appoint Colleen Doyle to the Planning and Zoning Board, which was seconded by Commissioner Evans. The motion carried unanimously by those members present.

The next item was the appointment to the Parks Board for a two-year term ending July 18, 2009.

Vice Mayor Price made a motion to appoint Thomas Vokes to the Parks Board, which was seconded by Commissioner Wilson. The motion carried unanimously by those members present.

Public Hearings

The next item on the agenda was First Reading of Ordinance 2006-12 Walls and Fences as a buffer between commercial and multi-family zoned property. This Ordinance was recommended by the Planning and Zoning Board at their June 4, 2007 Meeting.

Town Attorney Sack read Ordinance 2006-12 AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, AMENDING SECTIONS 7A-34, 7A-35, 7A-36, 74-37 AND 7A-38 OF THE TOWN OF MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR THE USE OF WALLS AND FENCES AS A BUFFER BETWEEN COMMERCIAL AND MULITI-FAMILY ZONED PROPERTY AND RESIDENTIAL USES; AMENDING SECTION 7A-53 OF THE TOWN OF MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR THE PLACEMENT, LOCATION, HEIGHT, AND MAINTENANCE OF WALLS AND FENCES; AMENDING SECTION 7A-57 OF THE TOWN OF MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR SWIMMING POOL FENCING; AMENDING SECTION 7A-58 BY DELETING THE SAME; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE in title only.

Commissioner Wilson made a motion to approve this Ordinance, which was seconded by Vice Mayor Price.

Vice Mayor Price asked for an explanation.

Town Planner Ragsdale stated that the key reason for the proposed Ordinance was some confusion regarding the side corner lots. He said Planning and Zoning Board Members went through all language, putting the fence section together.

Commissioner Wilson stated there were issues with the commercial and residential properties regarding masonry walls. Mr. Ragsdale stated that the associated provisions were slightly altered.

Ms. Joy Heuer, 406 1^st Ave, spoke about the bank’s drive thru going right passed her house. She advised that the bank did not have any wall, fence, nothing. She said this Ordinance needed to be clear.

Vice Mayor Price stated that this Ordinance was not in effect now.

Building Official Whitelock advised that the bank had been citied for not having a barrier, they had thirty days to correct.

There was a discussion regarding existing wood fences, when damaged, having a period of time to compliance with the Ordinance.

Mr. Steve Walters, 417 6^th Ave, stated that he attended the Planning and Zoning Meeting, he commended that Board for their extensive deliberation over this Ordinance.

Mr. Terry Williamson, 316 1^st Ave, stated his home was behind Burrito Beach, then he spoke about their fence. He said the Town needs to enforce the Code while we have the Code.

Town Planner Ragsdale stated that he would come back with suggested changes.

The motion carried unanimously by those members present

The next item was the First Reading of Ordinance 2007-03 providing for underground installation of electric service to individual properties/structures throughout the Town. This was recommended by the Planning and Zoning Board at their May 7, 2007 Meeting.

Town Attorney Sack read Ordinance 2007-03. AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, ADDING SECTION 4A-26 TO THE TOWN OF MELBOURNE BEACH CODE OF ORDINANCES;REMOVING SECTION 4A-26 FROM THE LIST OF RESERVED SECTIONS; RENUMBERING THE LIST OF RESERVED SECTIONS AS A CONSEQUENCE OF ADOPTION OF SUBSTANTIVE CODE SECTION 4A-26; PROVIDING FOR THE UNDERGROUND INSTALLATION OF ELECTRIC SERVICE AND TELEPHONE SERVICE TO INDIVIDUAL PROPERTIES/STRUCTURES THROUGHOUT THE TOWN IN ALL ZONING DISTRICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE, in title only.

Vice Mayor Price made a motion to approve this Ordinance, which was seconded by Commissioner Evans.

Commissioner Wilson asked if it was just the power to their house at the owner’s expense.

Town Manager Bursick stated yes, the service line, and yes, at the owner’s expense.

Commissioner Wilson advised that he didn’t know why we are making it a rule; if they choose to do it, they do it.

Vice Mayor Price stated that he did see a good reason in cases of upgrading service or in new construction, this is a safety hazard, with young children and low hanging lines.

Mr. George Walter, 232 2^nd Ave, said it was good for new construction or upgrading service.

Building Official Whitelock stated that it would pertain to upgrade in meter service and wattage elements.

Mr. Bruce Black, 405 Ave A, asked if the Commission could make it for new construction, could be an undue hardship for an owner of an old house if they have a deck, could cause additional expense.

Ms. Lisa Farrell, 413 Magnolia Ave, advised that she just had upgraded her electric, that it would have cost another $800 to place the line underground.

Town Planner Ragsdale stated that the Planning and Zoning Board initiated this; one of their members, he believed that, over time, it will all be underground,

Vice Mayor Price stated that Florida Power and Light is being pressured to put all their lines underground.

Town Manage Bursick advised that it would be a cost share arrangement.

Mr. Steve Walters, 416 6^th Ave, stated that if FPL does it, resident will pay.

There was a discussion regarding residents having to pay, the need to address any hardship. I

Vice Mayor Price made a motion to table this item, which was seconded to Commissioner Evans. The motion carried unanimously by those members present.

Mayor Stacey stated that the Boards should iron out these issues before it is brought to the Commission.

New Business

The first item under new business was the discussion and possible action regarding the Performance Evaluation of the Town Clerk Lenore Milan, requested by Mayor Stacey.

Vice Mayor Price made a motion to approve the Performance Evaluation for Lenore Milan, with a step increase of 5%, retroactive from March 15, 2007.

Town Manager Bursick stated that this position was advertised at $40,000, he then spoke about the property tax reform and its impact on the Town’s budget.

Mayor Stacey stated that the Commission filled out their evaluations.

Commissioner Evans stated that she was not here during the hiring process.

Mayor Stacey said that once the Clerk was permanent, there would be a salary

increase.

Commissioner Wilson stated that he didn’t believe that was the case; it was postponed due to an issue which she has rectified, to her credit.

There was a discussion regarding what was stated during the hiring process as to an increase in salary after probation.

Mr. Steve Walters, 416 6^th Ave, advised that there was no commitment about an increase for her performance. He said the Town Manager graciously waited beyond his time. There was no discussion about rate, hired at $40,000. Start the budget process, that is the time for pay increase. He said not one employee in this Town got a six-month raise; tonight’s not the time to do it.

Mr. Dean Darling 421 6^th Ave, spoke about waiting three months for a CD of a Meeting, his wait for public record requests, the Notary issue, and her deception in the hiring process.

Vice Mayor Price spoke about Mr. Walter’s attempt to create a job for Dean Darling.

Mr. George Walter, 321 2^nd Ave, said he is sure the Clerk deserved an increase, raise should be in October.

Mayor Stacey asked the Clerk to go back to the records to see what was stated.

Vice Mayor Price advised to table the increase.

Vice Mayor Price made a motion to make the Lenore Milan, a permanent employee, effective March 15, 2007, she received satisfactory evaluations, that the salary increase to be dealt with at the next meeting after review of the minutes of that meeting, which was seconded by Commissioner Evans.

Commissioner Wilson requested a copy of the tape of that meeting.

Mayor Stacey spoke about the Clerk’s evaluation, stating she got exceptional scores.

The next item on the agenda was the authorization for the Town Manager to submit a grant application under the 2008-09 Florida of Recreation Development Assistance Program requesting funds for Ocean Park, which was requested by Town Manager Bursick.

Vice Mayor Price made a motion to approve the authorization, which was seconded by Commissioner Evans.

Town Manager Bursick explained the proposed improvements that would be made with this grant funding. He stated that the Town would put restrooms at Ocean Park, at an estimated cost of $75,000 and a handicap beach access at an estimated cost of $75,000. The project cost would total $150,000, with a 25% match of $37,500 required, which is budgeted.

Vice Mayor Price stated that the $37,500 would get the Town a handicap ramp and restroom facilities

Mayor Stacey stated that he was not in favor of this, unless we have a procedure to manage the restrooms.

Town Manager Bursick advised that the Police Department is responsible for managing the restrooms in Ryckman Park, and would be for this facility too.

Mr. Steve Walters, 416 6^th Ave, stated that, as a resident, it has been a long time problem, once it gets dark, people go in the bushes, there will be some people who will abuse it. The Town should have a nice bathroom, the Police Department will take care of it.

Mr. Seth Stark, 410 5^th Ave, said he agreed with Mr. Walters, that his children go to the park and he is all for having a bathroom there.

The motion carried 3-1, with Commissioner Wilson voting nay.

The next item on the agenda was the discussion and possible action regarding authorization for the Town Manager to provide notice to Gary Sack ending services as Town Attorney for the Town of Melbourne Beach, which was requested by the Town Commission.

Commissioner Wilson made a motion to approve Gary Sack’s contract. The motion died due to the lack of a second.

Commissioner Evans made a motion to provide notice to Gary Sack, ending his services with the Town, which was seconded by Vice Mayor Price.

Commissioner Wilson added until all pending lawsuits are completed.

Vice Mayor Price stated providing Gary Sack has any work to be concluded to be done as a contractor, if we do not need his services, then no agreement.

Commissioner Wilson stated that he did not like the way Gary Sack has been handled. Mr. Sack performed in a timely manner with regard to the height referendum and it was well done. He then personally thanked Gary Sack and stated that this is the only community with a height Ordinance. He stated that we all, as a community, need to be thankful to this man, he then told Mr. Sack he was sorry.

Vice Mayor Price stated that he had strong feelings about this as well. The Town Attorney’s job is not to tell the Town Commission what to do, his job is to give legal advice. The Town Commission is elected to make decisions, not to be told what to do by any Town Attorney, he gives his legal opinion and it is up to the Commission to make the decision. He said, secondly, the Town Attorney in every Town, in every City, serves at the pleasure of the elected officials. When the Commission assigns him to do certain work, he comes back and shares it, in order to be a good Town Attorney.

Vice Mayor Price said he was hopeful that Gary Sack would sense the Commission’s feelings and leave, but he chose not to do this, now we have to publicly dismiss him and he said he was sorry for that. He advised that he felt Gary Sack has served this Town well with many issues he has handled. No one Commissioner could have assigned him to reverse something that he had been a party to; he should have been more sensitive to his role as Town Attorney.

Mr. Steve Walters, 416 6^th Ave, stated that Mr. Sack was fine in February, he then spoke about his salary and the Chevron Gas Station, with no hardship being shown, now firing him as Town Attorney. He said now the Town has two lawsuits; Chevron and C & D, this will cost the Town a lot of money.

Vice Mayor Price advised that our Town Attorney wears two hats; he is also the Attorney for the Board of Adjustment, which is a quasi-judicial, can only be overturned by Circuit Court.

Mayor Stacey called for the question. The motion carried 3-1, with Commissioner Wilson voting nay.

The next item on the agenda was the discussion and possible action regarding an agreement for legal services between Paul A. Gougelman and the Town of Melbourne Beach, which was requested by the Town Commission.

Vice Mayor Price made a motion to retain Paul Gougelman as Town Attorney for the Town Attorney upon completion of this contract, which was seconded by Commissioner Evans.

Mayor Stacey stated that the Town Manager had completed a thorough review of his contact.

Commissioner Wilson stated that we had two contacts, which one was being approved?

Vice Mayor Price stated it was the contracted being presented by Town Manager Bursick. He stated that Paul Gougelman did a lot of legal work, he will save the Town money.

Commissioner Wilson stated that his rate on the first contract was $150 per hour, now this contract is $142 general and $165 for litigations.

The motion carried 3-1, with Commissioner Wilson voting nay.

The meeting duly adjourned at 9:00 P.M.

______________________________

William G. Stacey, Mayor

ATTEST:

_____________________________

Lenore R. Milan, Town Clerk