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HomeMy WebLinkAbout03-27-1973 Special Meeting4 SPECIAL MEETING ' ` CITY COUNCIL MICROFILMED 4- 24 -80. MARCH 27, 1971 SPECIAL MEETING CITY COUNCIL OF THE CITY OF CAPE CANAVERAL WAS HELD ON MARCH 27, 1973 AT 10:00 P.M. THE MEETING WAS CALLED TO ORDER BY MAYOR GEORGE H. FIRKINS, JR. THE ROLL WAS CALLED BY THE CITY CLERK. OFFICIALS PRESENT: MAYOR FIRKINS; COUNCILMEN E. H. RHAME, A. M. RUTKOWSKI, G. J. SALVAGGIO AND MRS. ANN THURM; CITY MANAGER A. J. FRANCIS; ASSISTANT CITY ATTORNEY RICHARD SCOTT; CITY CLERK ANITA OSTROM; SGT. AT ARMS OFFICER HILL. ITEM 1. RESOLUTION 73 -13 - CERTIFICATION OF ELECTION RESULTS MAYOR FIRKINS CALLED FOR THE CERTIFICATION OF ELECTION RESULTS MOM THE CLERK OF THE ELECTION BOARD, MRS. ALICE SCABAROZI. SHE RE- PORTED THE TOTAL NUMBER OF VOTES 798; FOR THE ORDINANCE 482, AGAINST THE ORDINANCE 316. THE MAYOR THEN OPENED THE ABSENTEE BALLOTS AND THESE WERE CAN- VASSED BY COUNCIL. RESULTS OF THE ABSENTEE BALLOTS WERE AS FOLLOWS: FOR THE ORDINANCE 3, AGAINST THE ORDINANCE 12, MAKING THE TOTAL VOTE AS FOLLOWS: FOR THE ORDINANCE 485, AGAINST THE ORDINANCE 328, WITH A TOTAL VOTE OF 813. MAYOR FIRKINS READ THE RESOLUTION ENTITLED "A RESOLUTION CER- TIFYING THE RESULTS OF THE SPECIAL REFERENDUM FOR INITIATIVE PETITION FOR ORDINANCE ON MARCH 27, 1973. 1- MR. RHAME MOVED FOR ADOPTION OF THE RESOLUTION. MRS. THURM SECONDED THE MOTION. MR. JOHN STARLING, ATTORNEY FOR SEVERAL LARGE PROPERTY OWNERS IN THE CITY, SPOKE TO COUNCIL PROTESTING THE ELECTION AS INVALID, REFEL,'.NG TO-SECTION 176.06 OF THE FLORIDA STATUTES. MR. STARLING LISTED SEVERAL REASONS FOR THIS PROTEST OF THE ELECTION. A COPY OF THIS TRANSCRIPT IS ATTACHED HERETO AND MADE A PART OF THESE MINUTES. MR. RUTKOWSKI INTERRUPTED MR. STARLING ON A POINT OF ORDER, SUGGESTING THAT HIS PRESENTATION WAS NOT RELEVANT TO THE MATTER BE- FORE COUNCIL. A VOTE WAS TAKEN FROM COUNCIL AS TO WHETHER OR NOT TO PERMIT MR. STARLING TO PROCEED WITH HIS PRESENTATION. THE VOTE WAS AS FOLLOWS: IN FAVOR MR. RHAME, MR. SALVAGGIO, MAYOR FIRKINS; OPPOSED MR. RUTKOWSKI AND MRS. THURM. MOTION CARRIED. MR. STARLING PROCEEDED WITH HIS PRESENTATION IN PROTEST OF THE ELECTION. MR. SALVAGGIO ASKED THAT THE CITY ATTORNEY GIVE HIS OPINION ON THE VALIDITY OF THE ELECTION. MR. SCOTT STATED THAT THE ELECTION WAS IN ACCORD WITH THE CHARTER OF THE CITY AND THE ELECTION CODE. MR. M �- 1y"111CROFILMED 4- 24 -80>- t RHAME THEN CALLED THE QUESTION FOR ADOPTION OF THE RESOLUTION. COUNCIL VOTED UNANIMOUSLY FOR APPROVAL. BY MOTION OF MR. RUTKOWSKI, SECONDED BY MR. RHAME, THE MEETING WAS ADJOURNED AT 10:25 P.M. APPROVED THIS 27the DAY OF MARCH 1973. 12, CITY CLERK OR R N MICROFILMED 4- 24-80 TRANSCRIPT OF THE PROCEEDINGS OF THE CITY COUNCIL MEETING HELD ON MARCH 27TH, 1973 AT 10:00 O'CLOCK P.M. CAPE CANAVERAL CITY HALL THEREUPON, The City Council Meeting was called to order by Mayor George Firkins, who thereupon, led the pledge of allegiance to the United States of America. The City Clerk called the roll. Present were, Councilwoman Ann Thurm; Councilman G.J. Salvaggio; Mayor George Firkins; Councilman Harrison Rhame; Councilman Tony Rutkowski; Mr. Bert Francis, the City Manager; Mr. Richard Scott, the City Attorney, and the Sergeant At Arms were all present. MAYOR FIRKINS: The first item is reso- lution 73 -13, certification of election results. Mrs. Scabaroai? MRS. SCABARO?I: Seven hundred and ninety - eight voters voted, the total for the ordinance four hundred and eighty -twos against the ordinance, three hundred and sixteen. MICROFILMED 4 -24.80 F 2 - MAYOR FIRKINS: At this time I wonder if I could have the absentee ballots? CITY CLERK: Mr. Mayor, there are fifteen absentee ballots and they've all been checked, they are registered voters. MAYOR FIRKINS: Thank you, ma'am. (Thereupon, Mayor Firkins was handed the fifteen absentee ballots.) MAYOR FIRKINS: Against -- Against -- Against -- For -- Against -- Against -- Against -- Against -- For -- Against -- For -- Against -- Against -- Against -- Against. The absentee ballots as presented were, Three for the ordinance, and Twelve against the ordinance. Resolution Number 73 -13, a resolution certifying the results of the Special Referendum for Initiative Petition for ordinance on March 27th, 1973; Be It Resolved by the City Council of the City of Cape Canaveral, Florida, as followss Section One: The City Council sitting as a canvassing board accepts with approval the certification of the election returns as recorded by the election board for the special referendum for Initiative MICRUILMED 4.24.80 Ae... U — 3+ — Petition ordinance on March 27th, 1973, and certifies as proper, fifteen absentee ballots opened and canvassed in a public meeting. The total vote was as follows; For the ordinance, four hundred and eighty - five; against the ordinance, three hundred and twenty - eight. Section Two: This resolution shall take effect immediately upon its adoption, adopted by the City Council, the City of Cape Canaveral, Florida, at a special meeting on this 27th day of March, 1973. COUNCILMAN RHAME: Mr. Mayor, I move the resolution 73 -13 be adopted. COUNCILWOMAN THURM: I'll second the motion. (Applause.) MR. JOHN STARLING: Mayor, Mr. Mayor, may I be recognized, please? MAYOR FIRRINGS: Yes, sir. MR. STARLING: Mr. Mayor and members of the Council, my name is John Starling. I'm a lawyer with the firm of Crofton, Holland and Starling, 509 Palm Avenue, Titusville, Florida. I am appearing at MICROFILMED 4.24.80 4 - this meeting on behalf of my clients, who are iden- tified as follows; Cevesco, Inc., a Delaware corpora- tion; Engineers Central, Inc., a Florida corporation; The Top of The Cape, Inc., a Florida corporation; Canaveral Beach Gardens, Inc., a Florida corporation; Shuford Development Co., a Florida corporation, and Shuford Mills, Inc., a North Carolina corporation. And would like to make several points concerning the election and protest the election, and request this board not to certify the results of the election, inasmuch as my clients believe the election is an invalid election. First of all -- (There was a slight outbreak in the proceedings.) -- in connection, we have previously filed in this proceeding on behalf of my clients, certain protest petitions filed pursuant to provisions of Section 176.06 of the Florida Statutes, which pro- vide in part "that if twenty percent or more of the affected properties protest the change in zoning, any amendment to the zoning ordinance, including regu- lations amending the rights affecting a particular -- that particular classification, shall not be affected except by a favorable vote of three foUrtj%S,. of the MICROFILMED 4.24.80 governing body of the municipality." The voters of Cape Canaveral have chose to be the governing body of this municipality. And it is our contention that a seventy -five percent vote is required to carry this ordinance. The ordinance, as I understand it, witheight hundred and thirteen people voting, less than sixty percent voted favorable and not meeting the seventy -five percent requirement, the election did not pass and the ordinance is not adopted. We also feel that the Initiative Petition, as we have stated previously, is invalid and that this Court -- that this Board -- I beg your pardon, I'm getting a little bit ahead of myself -- (Outburst) -- but we will be there sooner or later. But the Initiative Petition is : inValrid : for.:vakL*us reasons, and as I pointed out before, therefore, the Initiative Petition should not have been accepted originally and the election should not be certified as being proper. It is my information that there was seven hundred and twenty -one electors in the City at the time that the Petition was filed, two hundred and three of these petition -- voters were ruled to be valid. Our information shows that of the two hundred and three petitioners to the original petition, that rIMPITOIJIMMA - 6 - eighty -seven of those persons did not sign as their named appeared on the voter registration roll, and if you deduct these eighty -seven from two hundred and three, there is not a sufficient twenty percent peti- tion to have activated the ordinance. (outburst.) Of the two hundred and three people accepted on the petition, twelve showed addressed that are not shown on the voter registration rolls of the two hundred and three people who signed the petition, it is our information that fifty of those persons' signatures were not signatures of the voters or are questionable signatures. Of the two hundred and three people that signed the petition, it is our information that the person who gave the affidavit swearing that they had saw the person sign it, filed a false affidavit. And, therefore, for those reasons it is our contention that the Initiative petition is invalid and not sufficient jurisdiction was invoked to activate the election process. it is also our petition that the public hearings come as required by the laws of the State of Florida, and particularly Chapter 176 of the Statutes, and also, as required by the City Charter of the City of Cape Canaveral, were not held in accord - - 7 - M(CROR#LMEp 4.24 -$4 ance with law. it's our further position, that notice was not given to affected property owners in accord- ance with the clear requirements of Section 176. 051 of the Florida Statutes, in which the City has a mandatory notice, to give notice by mail to each property owner whose zoning classification is to be affected. And that Section also required the City Clerk to file an affidavit as to such mailing, this was not done in this case. We further object to the City Council accepting the certification of this election on the grounds that the petition, the Initiative Referendum violates the statutory scheme as reflected in the Florida Statutes, in particular, Chapter 176, for the enactment of zoning measures. I specific -ally call the attention of the Council to the case reported in 61 So.2d. 416, a 1952 Florida Supreme Court case in which the court specifically held in the instance that Initiative Referendum could not be used on such matters as it was used in this particular incident. MR. RUTKOWSKI: Mr. Mayor, I would like to call a point of order. This Council is being asked to certify whether certain tallies are proper. This discussion is not relevant to our certifying that the WROMMED 4.24.80 tallies be proper, that's the only matter before us now. MR. SCOTT: Mr. Rutkowski, Mr. Starling is challenging the whole process. And I would say, I understand what the resolution is for and I think at this time he would be allowed to present this at this meeting, and I would expect that this is the best time to let him present his argument, and I would advise Council as to what I think the City should do. But I feel it would be a proper discussion at this time, since he's asking Council not to even certify these results, not to even go through with this resolution. MR. RUTKOWSKI: Well, the resolution, as I understand it, simply states that we are to certify a certain number of ballots were opened in the meet- ing and the total vote was as follows, that's the only thing that this Council was being asked to pass upon. MR. SCOTT: That's correct. MR. RUTKOWSKI: Well, what does this dis- cussion have to do relative to that? MR. SCOTT: Well, he's apparently chal- lenging the whole procedure, saying that it's invalid. MR. RUTKOWSKI: But the whole procedure "AICROFIL &W 4 =24 -60 9 0 is not before us tonight. MR. SCOTT: That's correct, but he's saying even this portion of it •-- of the procedure is incorrect. But it's up to the Council if they wish to hear the gentleman or not. MR. RUTKOWSKI: I call the question. MR. SCOTT: It would be my position, because we're in the discussion portion, that this would be a proper discussion. MAYOR FIRKINS: Mr. Starling, you may continue. MR. RUTKOWSKI: Point of order, we have to vote on that, Mr. Mayor, it's a matter of parlia- mentary law. MAYOR FIRKINS: Let me call for a point of order on Mr. Rutkowski's statement= all in favor of Mr. Starling continuing his discussion, please raise their right hand. (G.J. Salvaggio, Harrison Rhame and Mayor Firkins, raise their right hand.) MAYOR FIRKINS: Oppose by the same sign. (Thereupon, Ann Thurm and Mr. Rutkowski raised their right hand.) proceed. MtGROFtlMED 4.24 -80 - 10 "_- _.__........_ ..__. MAYOR FIRKINSs Mr. Starling, you may MR. STARLING: I will try to speed it up, I only have a few more remarks to make, gentlemen, so please bear with me. I had made the point that the Referendum and the election which you are about to consider certifying here, violates the statutory scheme for the enactment of zoning ordinances. And I call your attention specifically to Section 176.04 and .02 of this Statute and the City Charter has a like provision saying that regulations relating to zoning should be made in accordance with a compre- hensive plan, which was not done in this case. I also, in relationship to the statutory norm for zoning, raise the point that under the system of government as the courts recognize it, that the matters such as were decided or purported to be decided in this election, are not delegable to the public, it is the public officials who have the main duty to decide this matter as that governing body exists from time to time. I also state that the Initiative ordi- nance which was voted on violates the fair housing law and the civil rights act. (At this point, there was M1CPPF1LM.gP +9#40 - 11 - a substantial outbreak during the proceedings.) MR. STARLING: Which, in particular, in regard to that I call attention to the ten thousand square foot minimum lot requirement as set forth for R -1 Zone and direct a remark to the Council that the purpose -- the obvious purpose of such a requirement of having a ten thousand square foot lot is to discriminate against minorities. (At this point in the pro- ceedings there was another slight outbreak.) MAYOR FIRKINS; I think that when Mr. Starling has the floor, whether it be Mr. Starling or Mr. Jones, we will give him the courtesy of listening to him. I will not hear no further out- hurts from the audience, for I do have the power to remove you. MR. STARLING: For these reasons, Mr. Mayor, and members of the Council, it is the position of my clients that the entire procedure represented by this election is invalid and that this Council should not certify the results of an invalid election. MR. SALVAGGIO: Mr. Mayor, does bUr City Counsel have any rebuttal to Mr. Starling's remarks? MICROFILMED 4.24.80 - 12 - MR. SCOTT: Mr. Mayor, I cannot fully rebut, since I wasn't prepared for the argument, but I can only advise the Council at this time, the election was conducted in accordance with the City Charter, it was conducted in accordance with the State election code that we have adopted. I think it's incumbent upon the City Council to vote for this resolution at this time. The questions that Mr. Starling has raised, I think, are juris- dictional type of questions, constitutional questions that I don't think Council can act upon -- in fact,, doesn't have the power to act upon at this time. I think the only proper procedure for the City is to certify the results of the election, that's the only matter before this Council today. COUNCILMAN RHAME: Mr. Mayor, I call the question. MAYOR FIRKINS: All in favor of resolu- tion 73 -13, as read, please raise their right hand. (Thereupon, Ann Thurm, G.J. Salvaggio, Harrison Rhame, Mr. Rutkowski, all raised their right hand.) 14AYOR FIRKINS: Oppose by the same sign. (no one opposed.) mously. p MICROFILMED 4,24480 - 13 - MAYOR FIRKINS: Motion carried unani- (Thereupon, the Council Meeting was adjourned at 10:26 o'clock P.M.) I hereby certify that the foregoing pages, numbered 1 through 13, inclusive, are a true and correct record of the transcript of the proceed- ings as adduced by me at the time and place herein- above mentioned. GERARD F. RYAN Official Court Reporter