HomeMy WebLinkAboutMinutes 12-01-1992 Workshop and Regular CITY COUNCIL
REGULAR MEETING
December 1, 1992
A Regular Meeting of the Cape Canaveral City Council was held on
December 1, 1992 , at the City Hall Annex, 111 Polk Avenue, Cape
Canaveral, Florida. The meeting was called to order at 7 : 32 P.M.
by Mayor Joy Salamone. Pledge of Allegiance was led by Mayor
Salamone.
ROLL CALL:
Mayor Joy Salamone Present
Mayor Pro Tem John Porter Present
Councilmember Robert Abbott Present
Councilmember Joan Calvert Present
Councilmember Rocky Randels Present
Acting City Manager Bennett Boucher Present
City Attorney John Kancilia Present
City Clerk Faith Miller Present
ADOPTION OF MINUTES:
1. Regular Meeting of November 17 , 1992 .
Motion by Mr. Porter, seconded by Mrs. Calvert to approve the
minutes of the Regular Meeting of November 17 , 1992 , as presented.
Motion carried with members voting as follows: Mayor Salamone,
For; Mayor Pro Tem Porter, For; Councilman Abbott, For;
Councilwoman Calvert, For; Councilman Randels, For.
PRESENTATIONS:
1. Special City Employee Award - Bennett Boucher.
Mayor Salamone read the Special City Employee nominating petition
prepared and signed by twenty-nine (29) City employees. She
presented a plaque recognizing Mr. Bennett Boucher, Acting City
Manager, as the Special City Employee of the Quarter. Mr. Boucher
thanked the employees for their support.
2 . Mr. Jim Peeples, of Gray, Harris, Robinson, Kirschenbaum &
Peeples, re: beach erosion.
Mr. Stormy Harris of the firm of Gray, Harris, Robinson,
Kirschenbaum & Peeples made a presentation to the City Council
regarding beach erosion litigation. He stated that his law firm
was representing owners of oceanfront property between Port
Canaveral and Sebastian Inlet. His firm would be filing an action
against the Army Corp of Engineers based upon a theory of inverse
condemnation and he wanted to offer the City the choice to
participate in the legal action.
Mr. Harris explained the history of the beach erosion that had
occurred along the subject area's beaches since construction of the
Port in 1954 . He stated that the natural ebb and flow of the sand
prior to 1954 allowed for a growth rate of approximately three feet
(3 ' ) per year. He further explained the impact of the construction
of the Port on the area's beaches.
Mr. Harris explained the theory of the case and the concept of
inverse condemnation. He briefed Council on previous lawsuits
against the U. S. government similar to the proposed lawsuit. He
stated that the Army Corp of Engineers had discussed building the
sand transfer plant since the 1960s and as yet had not gone forward
with the project. He stated that the remedy in the case was to
firmly and finally motivate the Corp of Engineers to build a sand
transfer plant and to do beach restoration.
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 2
Mr. Harris further explained that there was no risk involved for
the City or property owners. He stated that the first phase of the
case would be a determination of whether or not a physical taking
had occurred and the second phase would include a determination of
damages. He was prepared to take the case to the Supreme Court if
necessary. There would be no fees to the City or property owners.
If there were monetary damages awarded, the firm would take one-
third of the damages.
Mayor Salamone suggested that the City support the lawsuit 100%.
Mrs. Calvert questioned whether or not suing the government would
hold up the sand transfer facility. Mr. Harris explained that it
would be a remote possibility and he expounded on the reasons why.
He stated that the quickest settlement would be within one year and
the longest time frame could be up to ten years. Mr. Abbott
questioned if Mr. Harris had a model of what would happen to the
coastal construction line two or three years from now if the
government delayed the case. Mr. Harris explained that he had the
full cooperation of Professor Bob Dean, University of Florida, who
was the technical expert relied upon by the Department of Natural
Resources (DNR) , and computer simulated models would be utilized.
A ten-minute break was taken at this time, after which the meeting
was reconvened.
Mayor Salamone stated that a retainer agreement with Gray, Harris,
Robinson, Kirschenbaum & Peeples would be scheduled for discussion
at the next City Council workshop meeting.
3 . Proclamation - Pearl Harbor Day - December 7 , 1992 .
Mayor Salamone read the proclamation designating December 7, 1992 ,
as Pearl Harbor Day. She asked that three originals of the
proclamation be sent to the VFW, the American Legion, and the Pearl
Harbor Survivors in the community.
PUBLIC HEARINGS:
1. Motion Re: Ordinance No. 22-92 , amending Code of Ordinances,
Chapter 727 , Public Area Construction Regulations, Section 727 . 05,
Permit Fees, for second and final reading.
Mayor Salamone read the title of the Ordinance.
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY,
FLORIDA, AMENDING CHAPTER 727 , PUBLIC AREA CONSTRUCTION
REGULATIONS, SECTION 727 . 05, ENTITLED "PERMIT FEES" OF THE CODE OF
ORDINANCES TO REVISE THE AMOUNT CHARGED FOR THE ISSUANCE OF AN
EXCAVATION PERMIT; BY PROVIDING FOR SEVERABILITY; BY REPEALING ALL
ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE.
Motion by Mr. Randels, seconded by Mrs. Calvert to approve
Ordinance No. 22-92 at second and final reading. Motion carried
with members voting as follows: Mayor Salamone, For; Mayor Pro Tem
Porter, For; Councilman Abbott, For; Councilwoman Calvert, For;
Councilman Randels, For.
2 . Motion Re: Ordinance No. 23-92 , amending Code of Ordinances,
Chapter 729 , Outside Concerts, Festivals or Entertainment, for
second and final reading.
Mayor Salamone read the title of the Ordinance.
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY,
FLORIDA, REPEALING AND RE-ENACTING CHAPTER 729 OF THE CITY CODE OF
THE CITY OF CAPE CANAVERAL; REPLACING THE DEFINITION OF OUTSIDE
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 3
CONCERTS, FESTIVALS OR ENTERTAINMENT WITH A DEFINITION OF OUTSIDE
ENTERTAINMENT EVENTS TO INCLUDE SPORTING EVENTS; CHANGING
REFERENCES TO THE CITY TREASURER TO THE CITY FINANCE DIRECTOR;
AMENDING STANDARDS FOR SITE PREPARATION AND MAINTENANCE OF AN
OUTSIDE ENTERTAINMENT EVENT IN ACCORDANCE WITH PART IV, CHAPTER
10D-25 OF THE FLORIDA ADMINISTRATIVE CODE; PERMITTING THE CITY
COUNCIL TO SPECIFY INCREASED INSURANCE COVERAGE FOR OUTSIDE
ENTERTAINMENT EVENTS; REPEALING ALL PORTIONS OF THE CODE IN
CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN
EFFECTIVE DATE.
Motion by Mr. Randels, seconded by Mr. Porter to approve Ordinance
No. 23-92 at second and final reading and providing in Section 4 an
effective date of December 1, 1992 . Motion carried with members
voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For;
Councilman Abbott, For; Councilwoman Calvert, For; Councilman
Randels, For.
OLD BUSINESS:
1. Discussion & Motion Re: Potential legal action against the
City by Robert Abbott regarding satellite antenna.
Mr. John Kancilia, City Attorney, advised that Councilmembers had
in their packets his assessment of the City's potential liability
in the case. Council was also provided only the cover sheet of
correspondence from the Florida League of Cities, Public Risk
Services, which also pointed out the risk of the City defending
this type of suit. He stated that the formal opinion of the
League's attorney was not transmitted in its entirety by fax and
did not arrive before the meeting. He stated that the Leagues'
recommendation was that there was a potential for liability on the
part of the City and that a settlement appeared in order.
Mr. Randels stated that he felt that the preemption only applied in
the event if local zoning regulations failed to meet certain
requirements. He felt that the City's ordinance did meet the
requirements. He stated that Florida League of Cities under the
City's insurance coverage would assume defense of the lawsuit with
no additional expense to the City. Mr. Kancilia stated that the
total amount of the coverage was $100, 000 which included attorney's
fees, damages, etc. Mr. Randels felt that the City should stand
behind its Code Enforcement Officer and Board to continue to
enforce the City's ordinances. He stated he could not support a
settlement.
Mr. Abbott asked Mr. Kancilia if he felt it was appropriate that he
step down from his position during the discussion. Mr. Kancilia
did not feel that Mr. Abbott had to remove himself from the podium
as he did represent himself as an individual. He felt that Mr.
Abbott could not participate in the vote on this matter. Mr.
Abbott felt it was most appropriate to step down. Mayor Salamone
stated for the record that Mr. Abbott stepped off the podium. Mr.
Kim Lee, Attorney for Mr. Abbott, stated that to avoid any
appearance that Mr. Abbott would be participating in the debate or
discussion on the matter it was appropriate for him to step down.
Mr. Lee stated that the summary of the opinion provided by the
Florida League of Cities stated that the plaintiff would be
entitled to attorney's fees should he prevail on the claim and the
Federal Communications Commission (FCC) ruling obviously held that
the ordinance pertaining to receive only satellite dishes was not
legal.
Motion by Mr. Porter to table the issue completely until the
missing pages of the Florida League of Cities' opinion were
received. Motion died for lack of a second.
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 4
Mayor Salamone questioned if repeal of the ordinance was the most
important issue to Mr. Lee's client and Mr. Lee agreed that it was
the most important. She questioned if Mr. Abbott would be willing
to negotiate the attorney's fee of $6, 000 - 7 , 000 and Mr. Lee
responded that the attorney's fees would be negotiable. Motion by
Mayor Salamone, seconded by Mr. Porter to review the options given
by Mr. Lee during the last Council meeting in which he asked the
Council to amend the ordinance to follow FCC rulings and that the
Council agree to the first two issues if Mr. Abbott was willing to
drop the lawsuit.
Mr. Lee stated that his client had requested immediate repeal of
the ordinance and a good faith effort toward enacting a new
ordinance which complied with FCC guidelines. There was discussion
regarding what would happen if there were no ordinances regulating
satellite antennas. Mr. Porter stressed again that the Council did
not have all the necessary information to make a decision at this
point.
Mr. Forest Burke questioned which Federal law was being discussed
and Mr. Kancilia explained the applicable rules (47 CFR 25. 104)
imposed by the Federal Communications Commission. Mrs. Massey
questioned whether or not anyone could place a satellite on a 50'
lot. Mrs. Filkins stated that Mr. Abbott had accused the City of
violating 1st and 14th amendment rights. She expressed her
feelings regarding the subject lawsuit.
Mrs. Calvert asked if every person was guaranteed to receive every
signal. Mr. Kancilia stated that the rule stated that cities could
not enact discriminatory legislation. If the legislation was non-
discriminatory, the municipality would have more latitude to
regulate the placement of all antennas. He stated that the clearly
defined aesthetic objective must be contained within the body of
the ordinance which the City's ordinance did not contain. There
was further discussion regarding the regulations which required a
reasonably and clearly defined health, safety, or aesthetic
objective. Mr. Kancilia stated that the federal regulators had
made a technical distinction which required that the objectives be
included in the ordinance. Mrs. Calvert felt that the intent was
included in the ordinance.
Mr. Lee stated that municipalities could not unreasonably prevent
the reception of satellite signals and could not impose undue cost
burden on its citizens who want to receive satellite signals. He
stated that tabling the decision was disregarding the two (2) legal
opinions that the City had received. Mrs. Calvert felt that Mr.
Abbott should have approached the Board of Adjustment for a special
exception. Mr. Lee stated that his client had not approached the
Board of Adjustment because he was given permission to reinstall
the satellite dish by the Building Official; he reinstalled the
dish and then received the stop order and notice of violation which
caused the issue to come before the Code Enforcement Board. Mr.
Lee stated that Mr. Abbott was told by the Code Enforcement Board
when he asked for reconsideration of the fines that his recourse
was to file an appeal.
Mr. Porter reiterated his position that Council needed more time to
study the issue. Mr. Jerry Edwards spoke in reference to a similar
situation that had occurred in Connecticut. Mr. Randels stated
that he could not support a settlement on the matter without all
the necessary information.
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 5
Motion failed with members voting as follows:
Mayor Salamone For
Mayor Pro Tem Porter Against
Councilman Abbott Abstained
Councilwoman Calvert Against
Councilman Randels Against
Motion by Mr. Randels, seconded by Mr. Porter to table the item
until the other six (6) pages of the fax from the Florida League of
Cities was received and reviewed and to agenda the item at the next
workshop with all the available information. Mr. Randels also
asked for information from the FCC as to exactly what was required.
Motion carried with members voting as follows:
Mayor Salamone Against
Mayor Pro Tem Porter For
Councilman Abbott Abstained
Councilwoman Calvert For
Councilman Randels For
NEW BUSINESS:
1. Discussion & Motion Re: Proposal by Post, Buckley, Schuh &
Jernigan for the following services:
a) Jurisdictional wetland assessment;
b) Preparation of application to be included in State
Revolving Loan Fund;
c) Preparation of legal description of Cevesco property for
wetlands.
Motion by Mr. Randels, seconded by Mr. Porter to give the City
Manager authority to enter into the agreement with Post, Buckley,
Schuh, & Jernigan, Inc. for the three (3) special tasks with the
total amount not to exceed $9 , 880. Mr. Click advised that there
were some minor changes to be made to the contract including lower
labor rates. Mr. Leo Nicholas questioned if the City had decided
upon the particular land that would be utilized for the wetlands
project. He felt that there was other land available that was not
prime waterfront property. Mr. Click stated that the wetlands
project required approximately 33-35 acres of land and that the
City would be looking at 60-80 acres of land to determine the land
most suitable for wetlands.
Motion by Mr. Randels, seconded by Mayor Salamone to amend the
motion to include the changes stated by Mr. Click and for a total
amount not to exceed $9 , 600. Motion carried with members voting as
follows: Mayor Salamone, For; Mayor Pro Tem Porter, For;
Councilman Abbott, For; Councilwoman Calvert, For; Councilman
Randels, For.
Motion carried on the main motion with members voting as follows:
Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott,
For; Councilwoman Calvert, For; Councilman Randels, For.
2 . Discussion Re: Continuing Engineering Services contract with
Dyer, Riddle, Mills & Precourt, Inc.
Mayor Salamone suggested tabling the item until the next agenda to
allow for further review. There was further discussion regarding
the proposed agreement. Mr. Harold Nantz, Professional Engineer
with Dyer, Riddle, Mills & Precourt, Inc. , answered questions from
Council related to the proposed agreement. Mayor Salamone asked
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 6
Mr. Nantz to meet with the City Manager to further work out the
details of the agreement. Mr. Jerry Edwards stated that a specific
period of performance and fixed pricing was needed in the
agreement. Mrs. Ann Thurm questioned what the monthly retainer fee
would be. Mr. Nantz explained that a set monthly retainer would
not be charged, but that the City would only pay for the services
that the firm provided. There was further discussion regarding the
fees for services.
3 . Discussion & Motion Re: Acquisition of private wastewater
pumping stations - Canaveral Bay.
Mr. Boucher explained that Mr. Joseph Abbott, Public Works
Director, had summarized findings relative to the City's
acquisition of a private wastewater pumping station located at
Canaveral Bay. He stated that the estimated cost would be
$6, 841. 00 to bring the pumping station up to compliance.
Mr. Jim O'Toole, Vice President of Canaveral Bay Condo Association,
stated that the lift station served approximately 250 residents.
He felt that the City had taken over private lift station in the
past and the Association had agreed to pay the expenses involved in
bringing the lift station up to compliance. Mr. Abbott explained
that the facility was ten years old and was well-maintained. He
stated that the cost estimate of $6, 841. 00 would allow for the
station to be brought up to the standard of the developer station
that was originally installed. It would not bring it into
conformance with what the City would normally expect on one of its
stations. There was further discussion regarding the equipment
standards necessary to bring this station into compliance and
whether or not the City wanted to accept private lift stations.
Mayor Salamone stated that to her knowledge the City had never
taken over private lift stations and she stated that in reality the
cost to bring the station into conformance with current City-
maintained lift stations would be approximately $110, 000 .
Motion by Mayor Salamone, seconded by Mr. Porter not to take over
the private wastewater pumping station at Canaveral Bay. Motion
carried with members voting as follows: Mayor Salamone, For; Mayor
Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert,
For; Councilman Randels, For.
Mayor Salamone stated that a unanimous vote was required to
continue the meeting past 10: 00 P.M.
Mr. Nicholas spoke regarding the poor quality of the lighting on
AlA and he asked the City to pursue the issue with Florida Power &
Light. Mayor Salamone asked Mr. Boucher to further research the
matter.
4 . Discussion Re: Building Official's status report on audit
recommendations.
5 . Discussion Re: Commercial Development Board.
6 . Discussion & Motion Re: Renewal of agreement with ICMA
Retirement Trust Corporation - 457 Deferred Compensation Plan.
7 . Discussion & Motion Re: Resolution No. 92-65, Reappointing
members to the Construction Board of Adjustments & Appeals.
8 . Discussion & Motion Re: Ordinance No. 24-92 , amending Section
641. 37 entitled "Parking and Storage of Certain Vehicles" , for
first reading.
City of Cape Canaveral, Florida
Combined Workshop & Regular City Council Meeting
December 1, 1992
Page 7
9 . Discussion & Motion Re: Ordinance No. 25-92 , amending Chapter
624 , Flood Damage Prevention, Section 624 . 07 entitled
"Definitions" , for first reading.
Item Nos. 4 - 9, were tabled until the next City Council workshop
meeting.
10. Discussion Re: Space Coast League of Cities' Xmas dinner and
gift exchange - December 14 , 1992 .
Mr. Randels stated that the City Clerk had suggested a couple of
ideas for the gift exchange with the City of Melbourne. Motion by
Mayor Salamone, seconded by Mr. Porter to authorize City Department
Heads, City Clerk, and City Attorney to attend the Space Coast
League of Cities' Xmas dinner on December 14 , 1992 . Motion carried
with members voting as follows: Mayor Salamone, For; Mayor Pro Tem
Porter, For; Councilman Abbott, For; Councilwoman Calvert, For;
Councilman Randels, For.
Motion by Mr. Abbott, seconded by Mr. Porter to extend the meeting
beyond the 10: 00 P.M. limit. Motion failed with members voting as
follows:
Mayor Salamone Against
Mayor Pro Tem Porter For
Councilman Abbott For
Councilwoman Calvert Against
Councilman Randels Against
11. City Manager's Report.
Mr. Boucher stated that the Beautification Board had recommended
that the Christmas Tree be placed at the Amoco station and Council
concurred.
Discussion:
1. Mr. Porter stated that he had heard a rumor that the
Department of Transportation would be constructing medians along
A1A. Mayor Salamone asked Mr. Boucher to check same.
There being no further business, the meeting adjourned at 10: 10
P.M.
Approved this 15th day of December , 1992 .
:7 /7-
, " J'y • Salamone, MAYOR
ATT. T:
diorc
Faith G. Miller, CITY CLERK
• �` F
FORM 8B MEMORANDUM OF VOTING CONFLICT FOR
COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS
I.ASI NAME !IRS! NAME MII)I)I.1.NAME NAME OF HOARD,COUNCIL,COMMISSION,AUrHORII Y.OR COMM!I1 LI:
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MAILING ADDRESS rHE HOARD.COUNCIL,COMMISSION.AU 1 HORI'IY OR COMMITTEE ON
' WHICH I SERVE IS A UNIT OF:
LA CFA"` GWr O N 4 v CII Y ❑ COUNTY ❑ OI 11ER I.00A1.AGENCY
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NAME OF I'OLIIICAI.SUBDIVISION:
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WHO MUST FILE FORM 8B
This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board,
council,commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented
with a voting conflict of interest under Section 112.3143, Florida Statutes.
Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form
before completing the reverse side and filing the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
ELECTED OFFICERS:
A person holding elective county, municipal,or other local public office MUST ABSTAIN from voting on a measure which inures
to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special
gain of a principal (other than a government agency) by whom he is retained.
In either case, you should disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on
which you are abstaining from voting; and
WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording
the minutes of the meeting, who should incorporate the form ill the minutes.
APPOINTED OFFICERS:
A person holding appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the
special gain of a principal (other than a government agency) by whom he is retained.
A person holding an appointive local office otherwise may participate in a matter in which he has a conflict of interest, but must
disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether
made by the officer or at his direction.
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH
THE VOTE WILL BE TAKEN:
• You should complete and file this form (before making any attempt to influence the decision) with the person responsible for
recording the minutes of the meeting, who will incorporate the form in the minutes.
• A copy of the form should be provided immediately to the other members of the agency.
• The form should be read publicly at the meeting prior to consideration of the matter in which you have a conflict of interest.
CF FORM 811-1-91 PAGE 1
•
IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:
• You should disclose orally the nature of your conflict in the measure before participating.
• You should complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes
of the meeting, who should incorporate the form in the minutes.
DISCLOSURE OF LOCAL OFFICERS INTEREST f
I,
Qne A'`- Theby disclose that on ECE/27,6 E / S , 19 2.2--:
(a) A measure came or will come before my agency which (check one)
inured to my special private gain; or
inured to the special gain of , by whom I am retained.
(b) The measure before my agency and the nature of my interest in the measure is as follows:
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Date Filed Signature
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317 (1985), A FAILURE TO MAKE ANY REQUIRED
DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING:
IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN
SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $5,000.
CF FORM KH-1-91 PAGE 2