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HomeMy WebLinkAboutMinutes 05-03-1994 RegularCITY COUNCIL REGULAR MEETING May 3, 1994 A Regular Meeting of the Ca Canaveral City Council was held on May 3, 1994, at the City g g � Hall Annex 111 Polk Avenue, Cape Canaveral, Florida. The meeting was called to order at 7:04 P.M. by Mayor Pro Tem Porter. ROLL CALL: Mayor Joy Salamone Absent Mayor Pro Tem John Porter Present Councilmember Arthur Berger Present (Late) Councilmember Leo Nicholas Present Councilmember Rocky Randels Absent City Manager Bennett Boucher Present City Attorney John Kancilia Present City Clerk Faith Miller Present PROCLAMATION: 1. National Cancer Survivor's Da - June 5 1994. Mayor Pro Tem Porter read the proclamation and presented it to Ms. Brita Newcomer, National Cancer Society. Ms. Newcomer invited Council, City residents, and visitors to a special celebration for cancer survivors and their caregivers at Cape Canaveral Hospital on Sunday, June S, 1994, from 1:00 to 3:00 p.m. ADOPTION OF MINUTES: 1. Regular City Council Meeting of April 19. 1994. Motion b y Mr. Nicholas, seconded by Mr. Berger to approve the minutes of the Regular City Council Meeting of April 19, 1994, as presented. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. PRESENTATIONS 1. 1394 Spring Beautification Awards: Multi- Family - Canaveral Bay Condominium Association Residential -- Mr. & Mrs. Jerome Hudepol Commercial - Johnson Controls world Services City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 2 Ms. Jackie Coates Beautification Awards Chairman, presented a gift certificate from Maggie's Mini Nurse and a City Certificate of Appreciation to Mr. Dwayne Shaw, Canaveral Bay Nursery y Groundskeeper, and Mr. Jack Fox, Canaveral Bay Condominium Association President, as the winners of the 1994 Spring Multi- Family Beautification Award. Ms. Coates p resented a floral arrangement and Certificate of Appreciation to Mr. & Mrs. Jerome Hude p of for the 1994 Spring Residential Beautification Award. Mrs. Hudepol encouraged Council to continue its vigilant effort to save area trees. Ms. Coates resented a floral arrangement and Certificate of Appreciation to Mr. Mike p • Williams Corporate Communications Manager, and Ms. Judy Mallet, Project Manager, of Johnson Controls world Services in recognition of winning the 1994 Spring Commercial Beautification Award. 2. Presentation by Mr. Paul R Gougelman III of Reinman Harrell, Graham, Mitchell & Wattwood re: Brevard County vs Snyder lawsuit and its implication to the quasi- judicial nature of Board activities. Mr. John Kancilia, City Attorney, explained that the meeting for purposes of Item No. 2 would be considered a oint meeting with the Planning & Zoning Board. Mr. Buzz Petsos, Planning J & Zonin g Board Chairman, called the meeting to order at 7:15 p.m. The City Clerk called the roll with the following members present: Mr. Petsos, Mrs. Barnes, Mrs. McNeely, Mr. Roney, and Mr. Hoog. Mr. Kancilia introduced Mr. Cougelman as a partner in the law firm of Reinman, Harrell, Graham Mitchell & wattwood whose avocation was local government with emphasis in land use regulations. He stated that Mr. Cougelman was a member of the East Central Florida Regional Planning Council and that he had written extensively on land use regulations. Mr. Cou elman distributed copies of an outline of his presentation to Council, City staff, and . ■ . members of the Planning & Zoning Board. He summarized the following issues regarding quasi judicial procedures: • Legislative vs. quasi-judicial decisions; • Specifics of the Board of County Commissioners of Brevard County v. Jack Snyder, Circuit Court affirmed the action of the County Commission, the Fifth District Court of Appeals reversal of the decision with a 45 -page opinion, and the landmark decision of the Florida Supreme Court which substantially modified what the appellate court had done; 0 Burdens of p roof for rezoning substantially changed, applicant must show that City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 3 he/she has followed the correct procedures as far as applying for rezoning and that whatever they were requesting was consistent with the City's Comprehensive Plan; Once the applicant has provided such a showing, the local government would have the following options: 1) Approve the rezoning request; 2) Show that the request was not consistent with the comprehensive plan and deny the request; or 3) Approve a less intense or less dense zoning designation. • Rezonings were to now be considered quasi-judicial in nature and every site specific rezoning before a City Council or County Commission could become a mini -trial; Courts will no longer hear arguments by witnesses or independent experts on behalf of the City or County, courts will only review the record made before the City Council or County Commission, and decisions must be made on the basis of testimony by expert witnesses, such as planners and other independent experts; i All presentations of evidence such as photographs, aerial maps, maps of the area, etc. , must be done at the public hearing; i Based on the Jennings v. Dade County case, no contact with the decision -maker prior to the rezoning hearing is permitted, such contacts may include: 1) Meeting with an applicant; 2) Meeting with or speaking to a constituent or other interested party about the proposal; 3) Discussing the case prior to the hearing with the City or County's planner; 4) Reviewing mail from parties regarding the case prior to the hearing; 5) Going to the site and looking at it, unless all commissioners and affected parties go at one time. 0 Site planning is quasi-judicial; City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 4 0 Variances are a form of administrative or quasi-judicial relief; 0 The increased use of expert witnesses and the implications of same such as: the comments of witnesses must be probative or competent as to whether the standards in the ordinance have been satisfied, neighbors are not always incompetent to testify in a land use matter; consent or opposition of neighboring property owners and of the community, personal knowledge of circumstances by board members, letters and phone calls from the public, ex parte communications, and driving by the site subject to an application; Jennings rule applies to all quasi-judicial matters, not just variances; it applies to conditional use permits, special exceptions, code enforcement proceedings, plat approvals, vested rights hearings, etc . ; 0 Planning & Zoning Board viewed as a Board of technical expertise; s Other examples of legal cases pertaining to rezoning and/or other land use issues; Mr. Gougelman addressed questions from City Council and members of the Planning & Zoning Board. He expressed the need for the City to have clear and definitive standards in regards to rezoning and land use matters. Mr. Porter encouraged members of Council and the Planning & Zoning Board to write letters in support of Senate Bill 25 85 , which would provide for access to public officials and a method to expunge ex parte communication, to Senators Patsy Furth and Patty Grogan. The bill may be discussed at the upcoming special session of the legislature in June. Mr. Porter questioned if members of the Planning & Zoning Board felt that a City Planner was needed on City staff. Mr. Petsos and Mrs. Barnes expressed their support of a full -time City Planner on staff. Mr. Nicholas suggested that the Planning & Zoning Board review the zoning ordinance requirements pertaining to special exceptions and permitted uses. Motion by Mrs. Barnes, seconded by Mr. Roney to adjourn the Planning & Zoning Board meeting at 8 :32 p.m. Motion carried with members voting as follows: Mr. Petsos, For; Mrs. Barnes, For; Mrs. McNeely, For; Mr. Roney, For; Mr. Hoog, For. PUBLIC HEARINGS 1. Ordinance No. 15 -94 Ado tin and Enactin& a New Code for the Cit of Ca e Canaveral, for second and final readin . Mayor Pro Tem Porter read the caption of the Ordinance. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, ADOPTING AND ENACTING A NEW CORE FOR THE CITY OF CAPE City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 5 CANAVERAL, FLORIDA; PROVIDING FOR THE REPEAL OF CERTAIN ORDINANCES NOT INCLUDED THEREIN; PROVIDING A PENALTY FOR THE VIOLATION THEREOF; PROVIDING FOR THE MANNER OF AMENDING SUCH CODE; AND PROVIDING WHEN SUCH CODE AND THE ORDINANCE SHALL BECOME EFFECTIVE. Motion by Mr. Nicholas, seconded by Mr. Berger to adopt Ordinance Not 1594 at second and final reading. Motion carried with member voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. NEW BUSINESS: 1. Motion Re: R uest b the Forei n Trade Zone Group. Inc, of Port Canaveral to finance additional sewer impact fees Mr Section 535.02(h). Motion by Mr. Nicholas, seconded by Mr. Berger to allow the applicant to finance the impact fee per the prescribed rules of the ordinance in the amount of $10,780.70. Mr. Boucher stated that at the time of the original submittal the City had not received any plans for the project and the Building Official had not based the impact fee on fixture count, but on number of employees. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 2. Motion Re: Manatee Ad Hoc Committee recommendations. Motion by Mr. Nicholas, seconded by Mr. Berger to accept the Manatee Ad Hoc Committee recommendations as submitted. Mr. Berger questioned if there was a conflict of interest involved in the matter since his wife was a member of the Manatee Ad Hoc Committee. Mr. Kancilia asked if Mr. Berger would derive any benefit from the adoption of the recommendation and Mr. Berger responded in the negative. Mr. Berger stated that his wife had been appointed to the Committee through administrative means, not by the City Council. Mr. Kancilia stated that he did not see a conflict of interest in this matter for Mr. Berger. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 3. Motion Re: Royal Mansions Condominium Association's settlement proposal. Mr. Kancilia stated that the counsel for Royal Mansions Condominium Association had offered the City a settlement wherein the Condominium Association would agree to adhere to the City's ordinances. He stated that it did not appear that the settlement proposal contained any means by which the City could enforce the settlement; if the Condominium Association were to breach the settlement agreement, the City would be back in court having to sue to enforce the settlement City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 6 agreement. He stated that it was his recommendation to reject the settlement proposal as written and asked that the city council authorize a counter proposal to Royal Mansions condominium Association to the effect that the Royal Mansions Condominium Association agreed to the relief sought in the City's counterclaim which was the entering of an injunction against the Association and all the unit owners. Motion by Mr. Nicholas, seconded by Mr. Berger that the City reject the Royal Mansions proposal for settlement and that the city seek to renegotiate a settlement whereby the Condominium Association and owners would agree to the relief sought in the City's counterclaim which would include an injunction. There was discussion regarding whether or not the City could recoup any of its attorney's fees. Mr. Kancilia stated that if the City proposed that recovery of its attorney's fees be part of the settlement proposal then Royal Mansions may be reluctant to settle. Mr. Kancilia stated that if the owners and the Condominium Association were to violate the City's ordinances and rent units for less than seven (7) days, the City could cite the offending individuals through the Code Enforcement Board and those persons could be fined in accordance with the Code procedures. However, if the City were to obtain an injunction and the owners of the Association violated the terms of the injunction not only could the offending parties be fined by the court, but they would also be held in contempt of court. Mr. Kancilia stated that the injunction would provide a much stronger means of enforcement. Mr. Kancilia stated that the recommended settlement offer was the equivalent of what the City would receive if the case went through the trial. Mr. Porter stated that the overall concept was to keep the beaches from becoming commercial and he did not believe that the financial end of the matter was as important as the overall concept. There was further discussion regarding the settlement offer and various legal methods available to the City. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 4. Motion Re: Authorization for CAY Manager to seek a rehearing of the Sandra Butler Code Enforcement Board case Motion by Mr. Berger, seconded by Mr. Porter to authorize the City Manager to request that the Code Enforcement Board rehear the Sandra Butler case based on new evidence presented. Mr. Kancilia stated that there had been a miscommunication as to the extent to which Sandra Butler had complied with the citation. It was alleged that Ms. Butler had on two (2) occasions delivered or attempted to deliver plants to the City in order to replace the trees that had been cut down. He stated that apparently the evidence was incorrect and the Council's seeking of a City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 7 rehearing before the Code Enforcement Board would be to present new evidence to the Board as to the non -- compliance of the property owner. Motion carried with members voting as follows: Mayor Pro Tem Porter For Councilmember Berger For Councilmember Nicholas Against 5. Resolution No. 94 -22 A rov in& the final 121at of ocean Gardens - Wave Two. Mayor Pro Tem Porter read the title of the Resolution. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; APPROVING THE FINAL PLAT OF "OCEAN GARDENS - 'NAVE TWO"; AUTHORIZING THE MAYOR AND THE CITY CLERK TO CERTIFY THE PLAT; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Nicholas, seconded by Mr. Berger to adopt Resolution No. 94 -22. Mr. Porter spoke briefly regarding problems associated with reviewing plats /building plans and he suggested that possibly in the future the City could use some computer modeling to better depict the actual layout of the development. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. Mr. Porter asked that discussion regarding implementation of an Architectural Review Board be scheduled at the next regularly scheduled City Council workshop. 6. Resolution No. 94 -23 Establishing a new schedule of sewer im act assessment fees. Mayor Pro Tem Porter read the title of the Resolution. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; ESTABLISHING A NEW SCHEDULE OF SEWER IMPACT ASSESSMENT FEES, WITHIN THE CITY OF CAPE CANAVERAL, FLORIDA, SERVICE AREA; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Porter, seconded by Mr. Berger to adopt Resolution No. 94 -23. Mr. Berger questioned how the City determined that the rates should be increased by 2.5 %. Mr. Boucher stated that the rate increase was based on the Consumer Price Index (C.P.I.). Mr. Berger questioned whether or not the increases were actually warranted. Mr. Nicholas suggested that City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page S City staff look more closely at the automatic cost -of- living increases. Mr. Porter stated that the sewer impact fees were based on infrastructure needs and the actual cost of providing for such infrastructure needs. Mr. Boucher stated that the sewer rates would not be increased until after 1997 and he expressed his support for growth paying its fair share of improvements. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 7. ordinance No. 14 -94 Amendin the City's Code of ordinances Cha ter 352 Drug Free Workplace. to change the criteria for reasonable sus icion testin and to add new sections to cover routine Fitness for Duty testiniz. Follow-Up Testin and In'u Related Testing, first reading. Mayor Pro Tem Porter read the title of the Ordinance. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUN'T'Y, FLORIDA; AMENDING ITS CODE OF ORDINANCES, CHAPTER 352, DRUG FREE WORKPLACE BY AMENDING SECTION 352.03, REASONABLE SUSPICION TESTING, OF THE CODE OF ORDINANCES OF THE CITY OF CAPE CANAVERAL TO CHANGE THE CRITERIA FOR REASONABLE SUSPICION TESTING FOR THE EXISTENCE OF THE INFLUENCE OF ALCOHOL OR USE OF DRUGS BY EMPLOYEES OF THE CITY; CREATING SECTION 352.031, ROUTINE FITNESS FOR DUTY TO REQUIRE A DRUG TEST AS A PART OF A ROUTINELY SCHEDULED EMPLOYEE FITNESS FOR DUTY MEDICAL EXAMINATION; CREATING SECTION 352.032, FOLLOW -UP TESTING TO REQUIRE EMPLOYEES TO SUBMIT TO A FOLLOW -UP DRUG TEST WHEN THE EMPLOYEE HAS ENTERER INTO A PROGRAM RELATING TO ALCOHOL OR DRUG PROBLEMS; CREATING SECTION 352.033, INJURY RELATED TESTING REQUIRING AN EMPLOYEE TO SUBMIT TO A DRUG TEST TO DETERMINE THE EXISTENCE OF THE USE OF DRUGS OR ALCOHOL BY THE EMPLOYEE AT THE TIME OF AN INJURY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES AND RESOLUTIONS; AND PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Nicholas, seconded by Mr. Berger to adopt Ordinance No. 14 -94 at first reading. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 8. Discussion &Motion Re: Ordinance No 17-9 Personnel Procedures to allow for pooling of sick leave under specific circumstances (EMERGENCY ORDINANCE). Mayor Pro Tem Porter read the title of the Ordinance. City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 9 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AMENDING THE CITY PERSONNEL PROCEDURES MANUAL AS ADOPTED BY ORDINANCE NO 15 -89 AND AS AMENDED BY ORDINANCE NO. 16 -90 TO CREATE A SICK LEAVE POOL; PROVIDING FOR A DECLARATION OF EMERGENCY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING; AND PROVIDING FOR AN EFFECTIVE DATE. Mr. Kancilia advised that the ordinance was presented to the Council as an emergency ordinance. He stated that under Florida Statutes, an emergency ordinance in order to be passed, dispensing with the usual notice and reading requirements, required a 213rd's vote of the entire membership of Council and there were less than 213rd's of the Council present at the meeting. Motion by Mr. Porter, seconded by Mr. Berger to table the ordinance. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. 9. Ciftv Manner's Report. Mr. Boucher advised that the City had received word from Mrs. Hoover's physician that her cancer was terminal and she would be unable to return to the City's employ. He stated that Mrs. Hoover had the right to extend her insurance coverage under COBRA provisions and he suggested that possibly the City could continue to pay her insurance costs. Motion by Mr. Nicholas, seconded by Mr. Porter to add an item to the agenda for consideration of the City picking up the insurance costs for a City employee. Motion carried with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. Motion by Mr. Nicholas, seconded by Mr. Porter that the City pick up the costs of providing employee insurance for Sharon Hoover until such time as she no longer needed it. Mr. Berger questioned how long Mrs. Hoover was employed by the City and Ms. Miller responded that she was employed for 14 months in 1992 -1993, and she had been reinstated as a City employee on February 7, 1994. Mr. Porter stated that Mrs. Hoover was a wonderful person, cheerful, and hardworking. Mr. Nicholas questioned the circumstances surrounding Mrs. Hoover's reinstatement as a City employee. Mrs. Catherine Barnes questioned if this matter would set a precedence for a similar situation in the future. Mr. Nicholas stated that he was not concerned with paying the insurance which he considered to be a matter of compassion. Motion carved with members voting as follows: Mayor Pro Tem Porter, For; Councilmember Berger, For; Councilmember Nicholas, For. City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 10 Mr. Boucher stated that he had spoken to George Firkins, Cevesco, regarding the City's proposed purchase of 2.48 acres north of the wastewater treatment plant and that their offer of $200,000 for two (2) acres was valid and they would not accept $200,000 for 2.48 acres. Council concurred to purchase the originally discussed two (2) acres at a purchase price of $200,000. Mr. Boucher stated that Michael Gluskin, Public works Director, had completed the NPDES permit application and the United States Environmental Protection Agency (EPA) had determined that the application was complete. He expressed his appreciation to Mr. Gluskin for a job well done. Mr. Boucher stated that Council had received a copy of the "Florida Finding of No Significant Impact" in regards to the State Revolving Loan Fund application and he stated that groundbreaking on the improvements to the wastewater plant should begin in the latter part of the summer. Mr. Boucher stated that the Public works Department had reconstructed the Adams Avenue crossover using recycled materials. Mr. Boucher expressed his appreciation to Council for approving the continuation of Mrs. Hoover's insurance. He stated that Mrs. Hoover was a pleasure to work with and was well liked by her fellow co- workers. DISCUSSION: 1. Mr. Berger questioned the status of the Port franchise negotiations. Mr. Boucher explained that he and Mr. Gluskin were revising the franchise agreement and the revised agreement would be provided to Council for discussion at the next Council meeting scheduled for May 17th. He stated that he would like to recommend that the agreement be sent directly to the Port commissioners. There was general discussion regarding the Canaveral Port Authority. 2. Mr. Nicholas questioned the status of the Abbott v. City of Cape Canaveral appeal process. Mr. Boucher advised that Mr. Abbott could appeal to the 11th Circuit Court of Appeals in Atlanta and he believed that Mr. Abbott had obtained an extension in order to obtain the transcripts from the case. Mr. Boucher stated that the taxable /recoverable costs that the City was eligible to recover was $2,000 which had been received. Mr. Berger commented that it appeared that Mr. Abbott was attempting to have the decision overturned through the appeal process. City of Cape Canaveral, Florida Regular City Council Meeting May 3, 1994 Page 11 3. M. Nicholas q uestioned if the r City anager had made copies of a publication entitled y "Highway Beautiful" for the Beautification Board/Commercial Development. Board. Mr. � y Boucher would provide copies to the Boardmembers as requested. Mr. Porter stated that he was hoping to obtain Council's support for sending some of the 4. P Commercial Development Boardmembers to a seminar entitled, "Redevelopment for Small Cities in Urban Areas in Transition" which would be held in Orlando on May 20, 1994, with a per registration fee of $25.00 person. Council concurred with Mr. Porter's suggestion to send g P Plannin g g & Zoning Board and Commercial Development Boardmembers to the seminar. 5 Mr. Porter distributed information to Mr. Boucher regarding the availability of certain grants. 6. Mr. Porter stated that he had received a call from Peter Cunningham regarding the six - lanin g of SR 520 from Banana River Boulevard to A 1 A and asking for Council's support. Mr. Berger asked to see actual plans of the improvements. 7. Mr. Porter stated that the first Commercial Development Board meeting was scheduled for May 9 1994 at 7:00 p. m. He suggested the possibility of combining the meeting with the Beautification Board and Cit y Council as a point meeting. After discussion, it was decided to use the first meetin g as a acquainted, organizational meeting for the Commercial get ac q Development Board. ADJOURNMENT: There being no further business, the meeting adjourned at 9:40 P.M. Approved thi s 17 th day of may 1994. J C. 6 kamone, MAYOR ATTEST: Faith G. Miller, CITY CLERK