08-18-2008 - Regular
CITY COUNCIL OF EDGEWATER
REGULAR MEETING
AUGUST 18, 2008
7:00 P.M.
COMMUNITY CENTER
MINUTES
1. CALL TO ORDER
Mayor Thomas called the Regular Meeting to order at 7:00
p.m. in the Community Center.
ROLL CALL
Mayor Michael Thomas
Councilwoman Debra Rogers
Councilwoman Gigi Bennington
Councilwoman Harriet Rhodes
Councilman Ted Cooper
Acting City Manager Tracey Barlow
City Clerk Bonnie Wenzel
City Attorney Carolyn Ansay
Present
Present
Present
Present
Present
Present
Present
Present
INVOCATION, PLEDGE OF ALLEGIANCE
There was a silent invocation and pledge of allegiance to
the Flag.
2. APPROVAL OF MINUTES
A. Regular Meeting of May 19, 2008
Councilwoman Rhodes moved to approve the May 19, 2008
minutes, second by Councilman Cooper.
The MOTION CARRIED 5 - 0 .
3. PRESENTATIONS/PROCLAMATIONS/PLAQUES/CERTIFICATES/DON
ATIONS
A. Mayor to present appreciation plaques to
Everglades Boats, Edgewater Power Boats and
Boston Whaler for their support of the 4th of July
Fireworks show
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Mayor Thomas presented a plaque to Edgewater Power Boats
for their support of the 4th of July fireworks. He
expressed his appreciation. He commented on the old
fashioned 4th of July we have in Edgewater. We could not
afford it this year. These boat manufacturers came to our
rescue and the show was fantastic. He thanked them all
for what they did. There was a round of applause.
Due to Everglades Boats and Boston Whaler not being
present, their plaques would be delivered to them.
4. CITIZEN COMMENTS
The following citizens spoke:
Peggy Cousins, 150 Williams Road, President, Edgewater
Fire/Rescue Association, stated the three boat
manufacturers made it happen but they also had two City
employees who saw a vision, when nobody else could come
through with it, Stephen Cousins and Jill Danigel and the
Edgewater Professional Firefighters Union chipped in as
well. She felt they needed a round of applause as well.
Councilwoman Bennington stated that was one of the best
fireworks displays she has ever seen in Edgewater.
Mike Visconti, 316 Pine Breeze Drive, read a prepared
statement entitled "The City of Edgewater, the Past and the
Future." Due to the length of the agenda, Mayor Thomas
asked Mr. Visconti to finish his presentation during the
second Citizen Comments section.
Bill Glaser, 1703 Needle Palm Drive, stated when they voted
for the 35 foot height limit a guy by the name of Blassy he
thought had something to do with it said Edgewater would
die and little did he know they killed the whole country.
Mr. Glaser commented on reviewing the 2007 CAFR. He
referred to Page 47 and stated it said the City is paying
FIND $505,657 every year until the year 2012. He thought
back when they sold the last of the acreage in ParkTowne
the previous City Manager gave them a report one night and
said after paying off everything they got $22,000 in taxes
from ParkTowne and they lost $31,000 on the deal but he
said everything was paid off. He was wondering what the
$500,000 was that they are paying to FIND each year until
the year 2012. Acting City Manager Barlow commented on
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what is outstanding and this also including some
infrastructure promises that were made in some other
contracts that the City is obligated to.
Finance Director John McKinney stated of the $2,375,000
that we received through September 30, 2007 from the
proceeds of the sale of ParkTowne, all of that money was
transferred to the General Construction Fund to pay for
Rowan Way and Base Leg Drive road construction, which is
now completed. We had just under $800,000 remaining in
that fund. Of that $250,000 was for the animal shelter.
The remaining was from the proceeds from last year that
they hadn't expended. They received enough money to pay
for the Page 47 debt for FIND but it was chose to use it in
other means that they couldn't finance last year for Base
Leg Drive and Rowan Way. They could have paid off the FIND
debt but the previous City Manager and Finance Director put
it in as a mechanism to pay for other work.
Bob Lott, 2112 S. Riverside Drive, stated he was looking
over the agenda and there are many very important items on
tonight's agenda. In many regards the future of our City
is at a crossroads. The decisions they make tonight will
have a significant influence on future of the City of
Edgewater. The Charter needs it to be protected from
outside agendas. The Charter is the lifeblood of our
City. Protecting our Charter is protecting the heart and
soul of our community. He appreciated the hard decisions
they would have to make tonight. He asked the Council and
public to keep an open mind and make the right decision
tonight to bring our City of Edgewater into the future. He
thinks they can do that. We have many opportunities
available to us. Keep an open mind and look to the future.
Unfortunately there are many people who have more fear than
vision and they need to break through that fear and they
need to create that vision. He knows it is going to be a
difficult night tonight. He encouraged the Council to hang
in there.
John Cordeiro, Pine Tree Drive, asked who owns the City of
Edgewater. Councilwoman Rogers stated the people. Mayor
Thomas stated the citizens. Mr. Cordeiro asked how come
they give everything to the developers and the builders
against the people's wishes all the time. Just like
Restorations. The people don't want that. They can't even
handle the City the way it is now. They are going to
double the size of the City. What is that going to do? It
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is going to destroy all the trees and the wetlands.
Volusia County did a study on all that land and said it was
not buildable. How come Edgewater gets a hold of it and
they change the zoning and now it is buildable? The
Planning & Zoning Board is just a board for the developers
and the builders. It is not a board for the citizens of
this City. He has watched the Planning & Zoning Board and
the Economic Development Board for six years and they
haven't done anything. The Chairman doesn't even live in
the City. He has a business and it's not even in this
City. How do they let that slide through? How do they let
them get away with all that? He doesn't think that
Restorations should even be built. It is going to destroy
all the trees. He remembers some promises from politicians
that were going to save the green and the wetlands. He has
learned in the last few months watching the TV that
politicians are nothing but a bunch of liars. They will
tell you anything to get elected. Once they get in, they
do just the opposite. That is right from the TV and what
is going on in this country now. It is a mess. They pay
taxes, the owners of this City, the taxpayers. How can
they have an attorney that fights against everything they
want, using their money to fight them. That is not right.
That is immoral. They get petitions and they vote and she
goes to courts and judges and tries to get it turned
around. She is supposed to represent the people and do
what the people want. He asked if that was hard to do?
Very simple. That is why he could never be a politician in
this City. Ninety percent of the people all they care
about is some kind of money under the table or something.
They can't be doing it for good reasons, for what the
people want.
Dominic Capri a , 606 Topside Circle, agreed with Mr. Lott.
One of the things on the ordinances, which he wasn't going
to discuss now, does not give enough explanation. He will
talk about it at that time.
Carol Ann Stoughton, 2740 Evergreen Drive, stated she would
like to know if MGM, the persons that have bought the
$48,000 acres in ParkTowne have made their payments.
Ms. Stoughton stated Lake Helen, it's a shame we don't have
the people there on our Council here, except for one
Councilwoman. Their tax rate is $4.20 per 1,000. They
have no high rises, no Restorations. They have managed
development. She feels they should check with the City of
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Lake Helen because they are running their city better than
us.
Ms. Stoughton stated she received a phone call from the tax
collector's office whereby Hammock Creek, known as
Restorations, is listed as no street in the County, no
street in New Smyrna Beach, no street in New Smyrna Beach,
no street in the County and no street in the County and she
paid over $2,600 in taxes on her home in Edgewater. Here
is a developer that has all this land and paid millions of
dollars. Guess what they paid in taxes in 2007, a whopping
$2,042. If you think this developer is paying his fair
share, like all of the citizens are, he is not. The
Council is going to cater to and kill this town. The roads
presently in our town are in need of repair. She rode
through Venetian Bay and every other home is either for
sale, unoccupied, or foreclosed. They also decided to give
land for schools and their weeds are high. They have a
shopping center with two shops in it. The place is like
Fulton's Folly out there and that is exactly what we are
going to have here. When the Council caters to them and
their promises were Mr. Mayor for the people and to keep
green. She thinks they forgot their promises.
Ben Fanselow, 321 Schooner Avenue, stated he knows they are
going to try to change the height elevation. He asked Mr.
Attorney to make sure it is okay we need height elevations
public works. The word only should be part of that. No
other thesaurus should be used so that a business of any
type can go over that height limit. Three meetings ago he
asked the Council who was behind them and asking them for
this change. They gave him a lot of platitudes. They
didn't do anything for five or six permits. They didn't
issue it because it was in the Charter. He asked what he
should call them, non-truth sayers. The other gentleman
said they were liars. He doesn't like to use that term.
In this case what they did was allow six firms who they
denied a permit to come back and sue this town. At the
last meeting with the judge, it was so stated that they are
violating the State law. How much do you think you should
turn around? He again asked who was asking them to change
the height elevation and for what reason. He asked them to
answer it truthfully this time.
Marcia Barnett, 124 Flamingo Road, Chairman, Citizens for a
Better Edgewater, stated their mission is to educate
Edgewater citizens, community leaders and public officials
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on matters affecting the community's quality of life and
economic viability. Their educational mission will
facilitate bilateral discussions, distribute facts, and
mitigate conflicting positions for public good because an
informed and educated citizenship makes decisions not based
on emotions but on facts. She is proud of the City and
feels very fortunate that we have a City Council that makes
educated decisions and those decisions are in the best
interest of all of our citizenship. She owns a business in
Edgewater, she has children and grandchildren, who live
here, work here, play here and go to school here, and will
hopefully work here when they graduate. Our future and
their future will depend on the kind of managed growth that
they allow. She spoke of being raised on a working farm in
her youth. Gas was $.26 a gallon. For $2 they could feed
their whole family meat. It is sad but it is a reality
that we have a different environment and economy now. They
need to plan for a future where children can walk to
school, the elderly can walk to their doctor or pharmacy,
workers with the ability to spend less time traveling to
other cities for jobs. It comes down to one question.
What is our goal for our city? As our elected officials,
the Council is capable of leading our city into greatness.
The decisions we make here tonight are hard ones on the
surface but in reality they are simple. Our Charter must
be protected and defended from being hijacked by activists
who have no intention of making Edgewater their home.
Their only agenda is to further their self interests which
do not include the interests of our children and people.
She is confident in their leadership and is proud of all of
the Council. She is confident in their decision-making
ability that it is not emotional but based on facts.
S. CITY COUNCIL REPORTS
Mayor Thomas had nothing at this time due to the lengthy
agenda.
Councilwoman Rogers was very pleased to report that every
time she has a citizen give her a call and they have a
question or problem, she immediately e-mails Robin and
Robin passes it on to the Department Heads and the
Department Heads resolve the problems and then she doesn't
have any issues. She was walking one evening and she met
one of the citizens that has been constantly complaining
about dumping and drug activity near his property and he
praised our Interim Police Chief and he thanked her for
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turning things over and he is happy they aren't having
problems on South Riverside. She reported they are having
problems at Menard Park. She has witnessed a couple of
things she will be reporting soon.
Councilwoman Bennington had nothing at this time.
Councilwoman Rhodes stated she and Interim Director of
Environmental Services Brenda Dewees attended the Florida
League of Cities Conference this past weekend in Tampa and
they came up with some very good information. At their
visioning workshops she will be bringing forward what she
feels are some good ideas that may apply in our City and
may help out with our citizens as far as energy concerns
and things of that nature.
Councilman Cooper had nothing at this time due to the
lengthy agenda.
6. CONSENT AGENDA
A. Authorization for the Acting Police Chief to
apply for the Manatee Conservation Fund Grant to
cover costs associated with manatee safety on the
water
B. Approval of the 2008/2009 Line of Coverage
Insurance Premium for property, liability,
automobile and public officials insurance for the
period of July 1, 2008 through October 1, 2009
Acting City Manager Barlow presented a brief summary on
Items A & B of the Consent Agenda.
Councilwoman Rhodes moved to approve the Consent Agenda,
second by Councilwoman Bennington.
The MOTION CARRIED 5 - 0 .
7. PUBLIC HEARINGS, ORDINANCES AND RESOLUTIONS
A. 1st Reading, Ordinance No. 2008-0-01, amending
Article I, Chapter 11 of the Code of Ordinances
to reflect the name change to Business Tax
Receipts, fee increase and the addition of the
Certificate of Use Permit (Continued from the
July 28, 2008 meeting)
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City Attorney Ansay read Ord. 2008-0-01 into the record.
Acting City Manager Barlow made a staff presentation with
regard to Items 7A and 7B.
Councilwoman Rhodes stated she has no problem with any of
this except for the fee increase. She thinks everyone of
them have sat there and said that commercial endeavors in
this community are to be encouraged and to be uplifted.
She thinks at some point in time they have to put their
money where their mouth is and keep their focus on what
their goal is. Although this is not a significant increase
in licensing fees, she thinks the commercial and the
businesses in this City deserve their support. She feels
this is a little bit that they can give. She will not vote
for this as long as the fee hike is included in it.
Councilman Cooper stated this is a 5% raise that has not
been increased since 2004. He commented on the increase
for some of the classifications and feels they weren't
talking about a very high fee. Their expenses have gone up
close to 20%. This 5% is needed and he doesn't believe
anybody with a business in Edgewater would look upon this
as if they are gouging in any way. He would have to
support this increase because it is drastically needed to
support our City and help the citizens.
Councilwoman Bennington agreed with Councilwoman Rhodes and
Councilman Cooper. The cost of living has increased. The
cost of doing business has increased and in order to cover
the taxpayer and not raise the ad valorem taxes, she thinks
the 5% increase is very minimal. Since it hasn't been
raised in so long she thinks the businesses can just
swallow it and afford this minimum amount.
Councilwoman Rhodes stated except they are going to pass it
on to the consumer so they are going to pay for it anyway.
Councilwoman Bennington stated everybody does. That's the
way the world works.
Councilwoman Rogers stated she was not going to vote for an
increase especially since the tax rate went up and
especially since there are a lot of people that are losing
jobs and she wants to see people have jobs and 5% doesn't
seem like a lot. She doesn't think it will help them since
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our costs went up 20% to just have a 5% increase. She is
going to vote that they stay where they are at for now.
Mayor Thomas opened the public hearing.
Acting City Manager Barlow reminded Council when they go
into this vote, they have to make the name change to
Business Tax Receipt. One portion is the rate increase,
which he would need a majority plus one for the rate
increase. The other part of this is also the
implementation of the Certificate of Use. This is a first
reading. If they struggle and if they don't have the
majority plus one on the rate increase, the Council should
let him know and they can make some modifications for the
second reading. Modify the rates to stay the same but
implement the Certificate of Use and the language for the
Business Tax Receipts.
Councilwoman Rhodes informed him she thought he just found
out they don't have a majority plus one. Acting City
Manager Barlow stated he hasn't seen the vote yet but he
had an intuition that was the direction it was going. They
can make the motion to accept but leave the rates alone.
City Attorney Ansay stated this has already been advertised
and they have gone through the first reading and continued
it. As a general proposition, she always advises caution
in changing an ordinance in a dramatic fashion and she
thinks going from the increase to no increase is certainly
a big change. She thinks given the time constraints they
are under to try to get this in concurrence with State
Statutes, if that is the direction of Council she thought
they could do it and bring it back on second reading with
those changes removed. That appears the direction they are
going.
Councilwoman Bennington stated as a small businesses owner
that pays the taxes in the City, the amount it is going to
cost her as an individual is so minimal she wouldn't even
think about it. As a businesses owner in the City, the
rate increase is nothing. Councilwoman Rhodes stated and
she said it wasn't a significant increase but she still
thinks they deserve Council's support. They sit there all
the time and say commercial. They really want to encourage
commercial development. They can say that and then turn
around and do everything that will stop that. It's not
significant but what it says to the people that own
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businesses in this City is that the City supports them.
Her vote will be no.
Ben Fanselow, 321 Schooner Avenue, stated when this was
brought up last time he used the simple number of $10.
Today he will try to use a real number. You have a small
business. You want to give them a $3 increase. Before
they pay that $3 worth of taxes they have to sell $75 worth
of product because they have to pay the overhead before
they make $1 profit. They don't make that profit. They
are handing it to the City for taxes. He informed
Councilwoman Bennington when she said it's not significant
to a small businessperson like herself, she forgot about
the overhead, the shipping, and the cost of her employees.
Councilwoman Bennington informed him she had not. Mr.
Fanselow stated in small businesses that is what a $3
increase is really. It is $75 worth of sales without
making one penny of profit. He didn't think they wanted to
do that to any business.
Chris Balmer, 148 Williams Street, stated he owns some
commercial property in the City, which is under a triple
net lease. He passes any tax increases on to the tenant.
The $5 is not a big deal. However, when you add that $5 to
the tax bills he received today and to State Farm's
increase and UPS's fuel surcharge, all of that gets passed
on to the tenant/businesses and ultimately passed on to the
customers. It is trickled down economics in a basic
fashion. He appreciated Councilwoman Rhodes comments on
walking the talk. We want business in here. Let's show
them we really meant it and let's say we are going to hold
the line. This City provides great services. They don't
mind paying taxes for them. If they have to increase them
now and then to give people pay raises they understand
that. Where they can hold the line, hold the line even if
it is for $5.
Mayor Thomas closed the public hearing and entertained a
motion.
Councilwoman Bennington made a motion to approve Ordinance
2008-0-01 conditioned on removing the fee increases upon
second reading, second by Councilwoman Rogers.
The MOTION CARRIED 4-1. Councilman Cooper voted NO.
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B. 1st Reading, Ordinance No. 2008-0-02, amending
Article II, III, IV, V, VIII, IX, XVII, and XIX
of the Land Development Code to reflect that
Occupational Licenses are now Business Tax
Receipts (Continued from the July 28, 2008
meeting)
City Attorney Ansay read Ord. 2008-0-02 into the record.
Acting City Manager Barlow explained this is essentially
changing the language from Occupational License to Business
Tax Receipt to be compliant with State Statute.
Due to there being no comments, Mayor Thomas opened and
closed the public hearing and entertained a motion.
Councilwoman Rogers moved to approve Ord. 2008-0-02,
amending Article II, III, IV, V, VIII, IX, XVII, and XIX of
the Land Development Code to reflect that Occupational
Licenses are now Business Tax Receipts, second by
Councilwoman Rhodes.
The MOTION CARRIED 5 - 0 .
Mayor Thomas called a ten-minute recess at this time. The
meeting recessed at 7:42 p.m. and reconvened at 7:55 p.m.
C. 1st Reading, Ordinance No. 2008-0-10, Hammock
Creek Green, LLC, requesting amendments to the
Data and Analysis; the Goals, Objectives and
policies; the Future Land Use Map and the map
series of the Future Land Use Element and other
applicable map series contained in the
Comprehensive Plan
City Attorney Ansay read Ord. 2008-0-10 into the record.
Mayor Thomas gave the Council an opportunity at this time
to disclose any ex-parte communication they have had
concerning this matter. City Attorney Ansay commented on
Council being fully empowered and it is lawful for them to
have communications with folks outside of the public
hearing. Not each other of course, but folks related to
the development about a project that is going to be part of
a quasi-judicial decision, which is what tonight's
proceeding is. Any communications they have had outside of
this proceeding or outside of a public meeting related to a
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project needs to be disclosed on the record and then they
can proceed on with the hearing.
Mayor Thomas disclosed he has had about three or four
meetings with Mr. Mears, some with his staff. All of the
meetings have been here except the last one that was in
Orlando, when they attended the VGMC meetings. He had a
couple of conversations on the phone with Mr. Mears to line
up the meetings. They were done to get him informed about
this project.
Councilwoman Rogers disclosed she also has had meetings at
City Hall with Mr. Mears and it was always just going over
brochures, the development. There was one private meeting
but had nothing to do with the development directly. He
presented to her a situation where someone with his
advertising firm had slandered her in reference to an
incident that was in the press last year. He was
embarrassed and brought that to her attention and let her
know that wouldn't happen again.
Councilwoman Bennington disclosed she met with Mr. Mears
once shortly after she was elected to get an overview of
the project and her opinion and he asked her if there was
anything in it that she wanted to see that he had included.
That was the only time she met wit him.
Councilwoman Rhodes stated she has never met with Mr. Mears
or anybody else outside of a public forum.
Councilman Cooper disclosed he had one meeting shortly
after the election with Mr. Mears and the Chairman of the
Economic Development Board on a fact finding mission to
find about the project of Restorations. Mr. Mears was very
cordial and very enthusiastic about his project. He didn't
ask his opinion or changes he would make. He did say he
would be willing to work with the City.
Development Services Director Darren Lear made a staff
presentation, which included a description and history of
the property. He also commented on staff's recommendation.
Ted Brown, Attorney with the firm of Baker & Hostetler,
representing Hammock Creek Green LLC, made a presentation
on behalf of the applicant.
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Brian Canin, Canin & Associates, 500 Delaney Avenue,
Orlando, went over the essential map features that are part
of their request. He also commented on Sustainable
Community Development thresholds and permitted uses and the
Master Development Plan.
Councilwoman Rhodes stated she is a firm believer in
sustainable communities. She feels they have to be in
order to live compatibly. Maybe this is not the resolution
that this needs to be addressed in. She sees that the
potable water they are going to have more wells on their
land. She asked if they would be able to use all of the
reclaimed water or if they would be dumping it into the
river. Mr. Brown informed her it would not be dumped into
the river. Councilwoman Rhodes confirmed that all of the
water that they flush they will be able to reuse. Mr.
Brown informed her that was correct.
Councilwoman Rhodes stated granted that new wells for the
City of Edgewater are needed to provide water for them and
granted they have a CUP that allows for that. They all
know the aquifer is becoming depleted and this isn't going
to make it any better. She feels there should be a
provision for the developer to provide some other means of
water for this community, other than the aquifer such as a
desalinization plant. She asked if they would have a
certain percentage of their houses be solar powered or wind
powered. She was looking for some energy savings. She
doesn't have a problem with a sustainable community and
feels that is the best idea and the way they need to go.
She wants to see a provision for depleting the aquifer.
She didn't know if this was the place for that provision.
Mr. Brown stated he wasn't sure what they were doing here
tonight was the right place to deal with it. The issues
she raised are issues that are immensely important to this
project and should be appropriately dealt with in the
context of the development order. What this will do is
create a land use that allows them to proceed to a
development order for the specifics of the kinds of issues
she was talking about.
Councilwoman Rhodes stated because the provisions for water
are in this does that limit them when they get to the
development order that it can only be this way? Mr. Brown
stated not in the context of the language that is in there.
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City Attorney Ansay concurred that at the stage they are at
now that certainly isn't going to be.
Councilwoman Rhodes stated it says as it pertains to SR 442
at 1-95, the developer will coordinates with FDOT relative
to whether the applicant will make a proportionate share
contribution to FDOT or actually construct the
improvements. Who makes the decision whether they give a
proportionate share to FDOT? Mr. Brown informed her it is
made in combination with input from the City, the County
and FDOT, depending on which transportation segment is
being impacted. When they do a DRI they must under the law
account for all of their impacts to the transportation
system.
Councilwoman Rhodes doesn't want FDOT to make that
decision. Mr. Brown stated they don't get to make that
decision. They become a participant in the decision if
they are attempting to impact an FDOT facility.
Councilwoman Bennington asked if there were any changes
made to the site plan since the workshop they had. She
asked Mr. Brown to specifically point some of the major
changes out. Mr. Brown stated what they have done in
response to continuing processing of this is they have
relocated and moved the conservation hamlet as far to the
east as they could and still honor the commitment of no
additional impacts to wetlands or other resources. The
balance of the plan looks as it would have looked the last
time they presented it to them formally or informally.
Councilwoman Rogers stated her question pertains to the
amount of acreage they have regarding the sustainable
community development. She recalled during the workshop
that the development would hug 1-95 and out west is going
to be where they are going to have the green space. Now
when she looks at this and she sees sustainable community
development, 4,552 acres, she is thinking they aren't
seeing anything yet. If it gets passed here, they might
come back and want to change things again and increase what
they are going to be developing in this sustainable
community, this new term they are hearing. Mr. Brown
stated they are coming to a place in the process where it
will not be able to change as it has changed. The reason
it has changed, as much as she is alluding to until now has
been a result of their effort to take the input of all the
people they have spoken to, which have been part of the
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collaborative planning process that they think is the best
and most successful way to bring something of this
complexity to a community like Edgewater. From this point
forward it cannot change unless Council agrees that it is
going to change. He has been doing this a long time and
his experience is that any project that has a life span
that this one has of 20 years, the City of Edgewater will
probably address this property again over it's life and it
will attempt to be responsive to and deal with changed
circumstances and conditions and somebody representing the
developer will stand before Council and attempt to tell
them and justify to them what adjustments they might think
need to be made. In the short term there is nothing they
intend to adjust except to the extent that as they move
through this process to the stage of a final hearing they
would anticipate receiving more input from the Council and
DCA, and the VGMC and to the extent they get that, this
plan will be fine tuned and returned to Council for them to
decide ultimately if this is the appropriate thing for this
real estate in that location within the City of Edgewater.
Councilwoman Rhodes stated when she asked if they were
going to use all of their reclaimed water and not dump any
into the river, they won't dump it into the river. She
asked if they would be giving it to the City of Edgewater
to dump into the river. This was the question she should
have asked. . Mr. Brown informed her no.
Councilman Cooper stated he was assuming this was still the
same project they looked at in their workshop. He spoke of
looking to offset some of the energy and water. They are
looking to do as much solar and wind as possible. The
homes are five star energy rated. There are all kinds of
things they were shown that he assumed were still staying.
Mr. Brown informed him that was correct.
Councilman Cooper asked about sustainable communities. One
of the citizens brought up an example of Venetian Bay and
the shopping center has a few shops. A community of this
nature and the cost that these homes are going to be, that
sustainable community is going to need real corporate jobs
in there. He asked for some insight on the types of
industrial businesses they are looking for.
Mr. Brown stated they certainly have a vision of what they
think can be developed here. They also have a vision of a
community and project that is part of the larger part of
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Council Regular Meeting
August 18, 2008
Edgewater's benefits from this undertaking. They believe
and he thinks it will be proven out over time, the synergy
of developing a community like this, which is one of a kind
in Florida, taking a look downstream from where we are
today in this country, looking at energy costs, looking at
the ecology and uniqueness of this site and the ability to
tell people what they have in the City of Edgewater is they
have proximity to 1-95, access to 1-95 north and south of
the community, a community that has the largest undeveloped
conservation area, fully restored and funded and maintained
without being on the tax bill, access to the beaches and
intracoastal waterway, and reasonable access to Orlando
Regional International Airport for business travel. They
think there is a very positive story to tell. Their
experience confirms rooftops precede development. They
will be aggressive about the task. They have identified
companies already but it would be very premature to
speculate about those that may have an interest in this
type of a location. They do not envision this project can
survive or be effective simply on the standard mix of
retail uses. They have to find end users that can occupy
hundreds of thousands of square feet of office with high
paying jobs. That will be a goal and a challenge.
Mr. Brown further commented on energy. He believes
politicians are now beginning to understand that to
transition our energy supply system in this country to the
next tier of available energy is going to take some
initiative and creativity. It is going to have to make us
go get what we have got. Not only as a national security
precaution but as a need of making sure we have the supply
in hand while we go about the business of developing
alternative energy resources to power our economy.
Councilman Cooper stated the uniqueness of this community
and by uniqueness he meant something that has not been done
and the environmental areas being protected and the
conservation aspect. He agreed those are all going to
generate marketing avenues for this entire community. When
that starts to happen they will see the right businesses
flow to Edgewater and that is where they will see the
progress they are hoping for with this project as long as
the uniqueness stays the way it has been presented.
Mr. Brown stated they don't see any market alternative.
They believe this is a paradigm shift. The notion of
building a standardized subdivision will not work as we
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Council Regular Meeting
August 18, 2008
move forward. What will work is what they believe they are
trying to do. To build an urban environment that is higher
density because of the convenience of this type of
development. This is the nature of the beast coming
forward. If they can do it cooperatively and with
enthusiasm Edgewater will have a unique, competitive
advantage in this part of Florida as it looks to the
future.
Mayor Thomas stated they are here to approve or disapprove
the future land comprehensive plan and how they evolved
here for the citizens that have not participated in the
workshops.
Mayor Thomas asked how much they will develop out of the
5,100 acres. Mr. Brown informed him it was about 1,700
acres. Mayor Thomas then asked how much they are leaving
green and untouched. Mr. Brown informed him the difference
between that and about 5,100 acres, 3,400 acres. Mayor
Thomas asked Mr. Mears who on the Council has been the
worst critic of his plans. Mr. Mears informed him he was.
Mayor Thomas asked how much wetlands are going to be
destroyed. Mr. Brown stated the acreage number is about
585 acres. Mayor Thomas asked Dr. Dennis if he would
consider the wetlands that were going to be destroyed to be
fragmented wetlands and some of the wetlands had evolved
because that was in civil culture. Dr. Dennis stated the
wetlands they are proposing to impact by in large are all
part of fragmented wetland systems. The wetlands on this
site have been drastically altered. They are proposing to
impact those that by in large have been most altered and to
restore those and the uplands around them.
Mayor Thomas saw that they were digging lots of ponds with
connectivity and deep so the water doesn't stagnate. How
much acreage was in those ponds? Dr. Dennis stated just
under 300. Mayor Thomas commented on only losing a couple
hundred acres of wetlands.
Mayor Thomas then commented on this being a DRI. Not only
are they impacting the citizens of Edgewater they are also
impact the citizens of Oak Hill and New Smyrna Beach. All
those people have a right to say and this is another
factor. He is on the VCOG Smart Growth Committee. This is
consistent with the smart growth and the future.
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Acting City Manager Barlow asked Dr. Dennis to state his
name for the record.
Michael Dennis, 330 W. Canton Avenue, Winter Park,
President and Senior Scientist with Freelove Dennis &
Associates, Environmental Consultants for the project.
Mayor Thomas asked how many species of wildlife are going
to be left on the property, free to do their thing. Dr.
Dennis stated they envision the project if it moves forward
as proposed that all of the critters that are out there now
and some more would still be on that property 50, 100, and
200 years from now based on the restoration aspects and
conservation easements that would be placed on it.
Mayor Thomas asked about the walking trails and riding
trails and if the citizens of Edgewater would be able to
use those. Dr. Dennis informed him those would be open to
the public.
Councilwoman Rogers stated as she understands this starts
the process. They are still going to need required
permits. They have quarterly reports of every development
that they have coming through the city and they receive
updates as to what is required. The additional permits
that will need to be done for this project to go forward is
St. Johns, Fish & Wildlife, DOH, DEP, FDOT and of course
Volusia County. They have to go through those processes as
well. Her concern isn't enough to say no or yes to this.
Right now what they are doing is they are just starting the
process. There are some buzzwords they have to remember as
Council. He. has enough credible evidence within everything
for them to approve and push this along in the process. If
they were to disapprove this they would have to have
competent substantial evidence to go against it. Nothing
has been presented to her or to them to indicate that there
is some competent substantial evidence to go against this.
The things that have been brought to their attention in the
workshops and the paperwork they have in front of them
indicates this would be a wonderful project. Her concern
and she is expressing this now so as they are going forward
people that are for this and people that are against this
will hear it. Those people that are going to try to sway
them or try to convince them to vote one way or the other
has to bring evidence forward to them. They can't vote on
emotions and have to vote on the evidence in front of them.
She isn't an advocate of the term smart growth. She is an
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August 18, 2008
advocate of the fact that land is a precious commodity.
They have a development in front of them. Population is
going to come into this area. This appears to be a project
that is going to be viable for the City of Edgewater and it
would be positive. She sees a lot of similarities with
this community based upon perhaps the New England states.
They are getting into areas where it is high density and a
lot of green space. She has a father that is a senior and
one of the things he is desiring in his old age that she
has to start thinking of is he wants to be able to walk to
the grocery store and visit the library and not have to
rely on public transportation. She spoke of a lot of this
land being environmental resource corridor. Property
taxes on this land are roughly $2,000 verses a homeowner in
Florida Shores that is paying $2,600 as was mentioned by
one taxpayer. The land has a lot of environmental issues.
They are going to have to rely upon these other agencies to
review that paperwork. They are not environmentalists or
scientists. They are going to have or rely on other
agencies to tell them this land is not suitable. They are
not up there to determine if this land is suitable or not
suitable. They are going to be making some votes tonight
and she wants the public to understand that she is going to
have to vote with her head, competent substantial evidence,
instead of her heart. She wouldn't want this land to be
developed but she can't vote that way. If people are going
to want to continue to call and express things they are
going to have to come back and give competent substantial
evidence. They can deal with these other agencies that are
going to be making these determining factors so that they
can do their" job on Council and they have to do it based on
the evidence. What they have in front of them is what they
have.
Councilwoman Bennington asked if they were familiar with
the development Vierra in Brevard County. Mr. Brown
informed her he was generally speaking. Councilwoman
Bennington stated it encompasses Melbourne and runs into
Rockledge and Cocoa and Brevard County and runs right up
the interstate. That was all wetlands. From what she sees
of it it isn't anything like what they are proposing. Mr.
Brown stated it certainly is not. That represents the old
paradigm. That is not what they are about.
Mr. Brown stated one of the reasons they should vote yes
this evening is because they now formally engage the
process. These agencies about what she is seeking to get
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Council Regular Meeting
August 18, 2008
their input, comments and understanding will flow from a
yes vote this evening. A no vote means the process does
not move forward and they are struck where they are. This
is a critical time in the process. They will have to
persuade St. Johns River Water Management District, the
Florida Fish & Wildlife Commission, the United States Army
Corp of Engineers, and the United States Environmental
Protection Agency. The Endangered Species Act criteria will
have to be sustained and met. All of those agencies
process their affairs in public. The DRI process is a very
transparent process that allows of a lot of points of entry
for a lot of people over a long period of time. This is the
first of multiple public hearings that they will be in
front of Council as this process continues to mature.
Councilwoman Rhodes commented on what is going on with
China and Indian and how the natural resource of oil is
being depleted globally. There is going to come a time
where they are going to need to live where they work, go to
the doctor, shop and go to school. She thinks this is
probably the first step. She was sure 20 years down the
road there will be something way more technically
appropriate than this but right now this is state of the
art. She thinks they would be remiss if they did not
encourage this. She would still like to talk about the
whole water thing when they get to the development order.
Mayor Thomas opened the public hearing.
The following citizens spoke:
Mike Visconti, 316 Pine Breeze Drive, stated now they have
heard the future from the experts. He wrote down
development petition, one house per twenty acres was
ridiculous. Here again a developer Mr. Don Mears Jr. who
owns the 5,181 acres is willing to develop and only 25% of
it is going to be developed and the rest is going to be
green. He heard there was going to be 1,700 acres
developed, which leaves 3,481 acres that are going to be
green. This in no way is going to affect the City. First
it is west of 1-95. All of the transportation will be
north and south of 1-95. East and west will be SR 44. To
go to the beach is going to be 1-95 and SR 44. What is the
problem? This project is going to enhance Edgewater,
improve the economy, give jobs to all the trades, give jobs
to citizens of Edgewater, the citizens of Edgewater will be
going there to shop instead of coming here because we have
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Council Regular Meeting
August 18, 2008
no shopping centers here.
from the experts and have
to the Council.
He thinks that they have heard
heard the future and now it is up
Mr. visconti" stated there are government grants that is $4
billion for the communities such as Edgewater to purchase
foreclosed homes, renovate them and resell them. He asked
that the grant person for the City look into it.
Mark Rakowski, Development Services Director for the City
of New Smyrna Beach, commended the City and the developer
for the proposal that takes advantage of compact urban
growth. This is not the typical urban sprawl they have
seen. It is important to get urban growth and keep it
walkable. Hopefully this will be something that other
communities see as a model and continue to encourage. The
City of New Smyrna Beach has some concerns about the
proposal. The main issue is that they are concerned that
this project is going to negatively impact the City of New
Smyrna Beach. When they do a Comprehensive plan amendment,
they entitle the developer to whatever they are asking for
if they give them the comp plan designation. They
shouldn't say let's give them the designation and worry
about the details later. It doesn't work that way. Once
they give them the Comprehensive Plan amendment they need
to make sure they can take care of all of the issues that
need to be taken care of.
Mr. Rakowski stated the City of NSB had done quite a few
development proposals west of 1-95 so he didn't think it
was right to say to Edgewater they have theirs but
Edgewater can't have theirs. They work together to make
sure their things are addressed. Some of the specific
issues that they are concerned about are water and traffic.
He feels they need to make sure Phase 1 of this project
participates in proportionate share funding. They are
concerned about wetlands and the impacts it has because of
the water flowing to the north. They are concerned about
drainage and population projections. He encouraged the
cities to work together and hopefully this will be an
excellent project.
Acting City Manager Barlow commented on some of the dialog
he had with the City of New Smyrna Beach Commission. He
gave a commitment that they certainly want to be good
neighbors and continue to work projects concurrently
through there. They have recognized some indifferences.
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August 18, 2008
They may feel they have some impact in traffic and what
they may have vested as future projects and really truly
vested projects with development orders. He feels
committed the City of Edgewater can continue to be good
neighbors and work with our neighboring communities of NSB
and any impact in the unincorporated areas of Edgewater as
well. He felt the developers were also on board and
committed to work those through. At the end of the day
they aren't going to go forward until a majority of
everybody is satisfied. They have jointly participated in
proportionate fair share funding studies. He feels
confident there are working relationships within this
region and he feels confident they can continue to enhance
those working relationships.
Ben Fanselow, 321 Schooner Avenue, stated he liked the
plan. He didn't know where they got their demographics but
that plan is like a photograph. Take a model she looks
gorgeous. Put her on a seascape and sand and the wind and
the light can change the perspective of her totally. He
would like the gentleman to show a plan where they are
bringing in these businesses and put them in first, then go
to putting in the buildings. They can use the work in this
place. He is glad it is going to take 18 or 20 years. He
would like them to really have a plan. That is just an
overview. It's not a plan. A plan shows every part and
every phase of the building before you have a plan because
if you don't plan that way when the oak tree gets in the
way of the bulldozer they are going to have to change their
plan. They are going to have this business down 1-95. 1-
95 to the airport can take you an hour or hour and fifteen
minutes or an hour and a half and if you project more
traffic on that it is going to take you longer and the
Daytona airport isn't going to supply the planes for the
businesses they are talking about. They may have other
types of businesses but don't tell him about the ability to
get to that airport. The thing is the plan has to be more
complete than what they are looking at for it to actually
know that it works. They are just looking at a smudge. It
is a good smudge. Looks perfect but it has no detail.
It's like looking at a car without a motor. It doesn't go
any place. To do proper planning you have to put down
everything you want to happen. Since he has done planning,
which was his business his whole life, he thinks they are
missing the boat on this. Before the Council goes ahead
they need a complete plan.
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August 18, 2008
Carol Ann Stoughton, 2740 Evergreen Drive, stated goals and
companies that are willing to come here should come first.
They should have the promise of jobs. Are we going to hire
the local person who is in foreclosure? Did they hire them
when they built Coral Trace? The answer is no. In the
Orlando Sentinel Mr. Mears said he would try to comply with
green standards but didn't make any promises. She felt the
best plan for out there would be stadiums, athletic fields,
even a great big facility to house people in case of
disaster. Windmills out there. The goals are not for the
people who already live in Edgewater to build another city
to hire more people, more famine, more police, more police
buildings, more pensions. Everybody deserves a decent pay
but who is going to pay for that when the developer leaves?
As far as she is concerned is the developer going to pay
when he leaves on the infrastructure that he leaves for the
current people to have to absorb. It is very interesting
to note. Are they going to pay for all of this
infrastructure? In the beginning they weren't going to pay
to make SR 442 go across and now they are going to pay for
that. She lived in St. Lucie and they are doing the same
thing they did there. They ruined the City. It takes an
hour to get to the opposite side of u.S. #1. The taxes
have gone up and the crime has increased. It is also
interesting to note how clever the developer was to proceed
with his two candidates and now she sees Mr. Canin who
contributed highly to one or two of the candidates and she
didn't think those candidates should vote having received
moneys for their vote.
Kathy Booth, 2204 Tamarind Drive, Conservation Chairperson
for the Southeast Volusia Audubon Society, addressed a few
environmental concerns. Southeast Volusia Audubon Society
remains very concerned about Restoration sitting on top of
the Volusia sole source aquifer with resulting fresh water
pollution and depletion of fresh water for the citizens of
Edgewater. They also think the development is not totally
consistent with environmental sensitivity specifically
referring to the conservation hamlet which is going to
consist of approximately 500 homes and therefore probably
1,000 or more people that is in the middle of the 3,300
acres of conservation land. The developer could do better
by either preferably removing the conservation village from
the plans or at minimum building it last in Phase III
instead of Phase I. Restoring the land from silviculture
is a commendable idea but the fact is the land is already
being well used by wildlife as evidenced by the developer's
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August 18, 2008
own surveys. During a swallowtail kite survey in May 2008
tracts of Florida's largest mammals, deer, bobcat and bear
were all readily seen. In the process of "restoration"
which will include much earth moving and burning, the
habitat of wildlife in those areas will be destroyed.
Where will these animals go while their habitat is being
"restored"? After the "restoration" will these animals
return and will the people by then residing in the
development especially in the conservation hamlet or
village want the wildlife to return particularly if the
wildlife includes bears. To see a bear in ones new
backyard maybe novel but the novelty will rapidly dissipate
when the bears curiosity causes it to destroy a person's
things or pets. The Florida Fish & wildlife Commission
biologist she spoke to agreed that it is inevitable that
they will be called about conflicts between bears and
Restoration conservation village residents and inevitably
they will be forced to euthanize the bears because there is
no place to relocate bears. The Southeast Volusia Audubon
Society requests a response to their recommendation and
also this was recommended at their Regional Conservation
Committee meeting recently that the conservation village be
removed from the plans or at minimum be built in phase III
instead of Phase I.
John Cordeiro, pine Tree Drive, stated he read in the paper
that Restoration is going to pull water out of Edgewater's
wells for their 8,500 homes. He asked if that was true.
Mr. Brown informed him yes. Mr. Cordeiro asked what
happens when we get a drought and those wells run dry
feeding 8,5000 more homes. What happens to our water? We
lose it. Real nice huh.
Dot Carlson, 1714 Edgewater Drive, stated she could not
have said it better than Kathy Booth. She has been out on
the land and it is wet. She has been told bears don't have
bank accounts and they don't have pockets but some of them
may need some jobs. Venetian Bay is a joke and it is an
absolute destruction of the land. What is out there is
destroyed. Where will the wildlife go? She suggested they
would go to the interstate and commit suicide. Usually
that is what happens.
Bob Lott, 2112 S. Riverside Drive, stated this falls
directly in the category he talked about earlier, fear
verses vision. This project is an evolution. It has
evolved tremendously because of input from the City and
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Council Regular Meeting
August 18, 2008
other agencies. It will continue to do that. The Planning
& Zoning Board voted unanimously to approve this project.
The same gentleman who said the Chairman of the Economic
Development Board didn't reside in the City also criticized
them for doing nothing for the last six years. They are
looking at an opportunity for 3.2 million square feet of
retail industrial space. He spoke of having the businesses
coming first and then they can build the houses. If he can
find a business that will relocate to a tent, they will try
and do that. This is a tremendous opportunity for the City
of Edgewater. He urged Council to pursue this opportunity
and continue to let it run its course. This is state of
the art. This is an opportunity for them to really move
forward. He didn't want them to allow the few people who
can't seem to grasp the vision to stop this project. He
talked to a lot of people in Edgewater and they have been
working at bringing jobs into this community for many
years. One of the problems they have is they don't have
any space for them to relocate to. This is the opportunity
for them to get that space. Give this opportunity a chance
for survival.
Linda DeBorde, 305 S. pine Street, New Smyrna Beach,
mentioned paying a lot of taxes to the City of Edgewater.
She applauded them for being where they are today. They
have brought this project this far. Can you imagine 18 to
20 years out where this project might be? Her children and
grandchildren live in the City of Edgewater and they are
excited about this project. They have to start somewhere
to make things happen. They have this started. She urged
them to keep it moving. This is economic development that
they have all been looking for in Southeast Volusia.
Pat Card, 3019 willow Oak Drive, stated many people have
never seen a really good development. A really good
development, one that is coordinated and done well, doesn't
happen over night. It takes 20 years. If you want to see
a good one, there is a little town in Texas called Spring
Texas. Twenty years ago Spring Texas had a grocery store
with the post office in the back. It was just a little
community. The Woodlands is there and the Woodlands is the
development that is a sustainable community also. It went
in and started about 20 years ago. You drive into the
Woodlands and you have a hard time telling you are in the
middle of a development. It is a monster but it is
beautifully done and it is well coordinated and it was a
show place and it was state of the art 20 years ago when
Page 25 of 50
Council Regular Meeting
August 18, 2008
they said something
the art this year.
years and they will
valuable to them.
about it. This is going to be state of
It will evolve over the next twenty
have something that he believes will be
Please vote in favor of this tonight.
Don Picard, 1530 Queen Palm Drive, stated this is a really
beautiful project when you see the evolution from where it
started to where it is now it is wonderful. If it were in
Miami or Orlando that would be fine. This doubles the size
of Edgewater. At the same time Reflections is coming
behind 900 acres. All of the rest of the developments they
are going to allow between now and then are going to grow
up as well. He commented on the traffic that is backed up
on SR 44 on the weekends from the people that are going to
the beach. In a recent issue of the Edgewater newsletter,
the City encouraged people to conserve water for future
generations. It is never going to make it to future
generations. It will come to people that they are going to
allow to come into the City. Our educational facilities
are already over crowded. Volusia County is closing
several schools this year and several more over the next
few years. They are going to build schools here but at
what point and how is this going to be phased in with our
schools in terms of being able to satisfy the needs of the
current students of Edgewater. How does development impact
their taxes? How much of the infrastructure are they going
to have to pay in advance to allow this development to come
in? A recent article in the New Journal talked about
Florida regulators being asked to approve increased fees
for the public utilities, power companies, because they
want to use these moneys ultimately to build new power
sources. This is a matter of paying in advance. They pay
now so they can build power plants in the future for people
that will be here in the future, not for us. will the City
develop building codes for minimizing fossil fuel power
consumption? If this is going to be truly an
environmentally friendly community will they require solar
water and heat? will they require co generation or
sustainable houses so people don't die of heat exhaustion
during power. outages? 1-95 is the only major corridor into
and out of the era. Can you imagine the gridlock if they
had to evacuate all of these people in the case of an
emergency? What about the impact on wildlife? The area
in question is replete with bears and there is no reason to
believe the bears will stay in their allocated location.
Once their home ranges are fragmented they will find
themselves in backyards because they are easy feeders.
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Council Regular Meeting
August 18, 2008
Garbage cans are great. They will be killed because there
is no where to put them and man will once again demonstrate
his prelis to kill animals just to get his way.
Mayor Thomas stated they are beating a dead horse.
Mayor Thomas closed the public hearing and entertained a
motion.
Councilwoman Bennington moved to adopt Ordinance 2008-0-10,
Hammock Creek Green, LLC, requesting amendments to the Data
and Analysis; the Goals, Objectives and Policies; the
Future Land Use Map and the map series of the Future Land
Use Element and other applicable map series contained in
the Comprehensive Plan, second by Councilwoman Rhodes.
The MOTION CARRIED 5 - 0 .
D. 2nd Reading, Ordinance No. 2008-0-07, providing
for an amendment of the City Charter, Section
3.04 "Election and Terms" (Continued from the
July 28, 2008 meeting)
City Attorney Ansay read Od. 2008-0-07 into the record.
Acting City Manager Barlow made a staff presentation.
Mayor Thomas stated this was recommended by Ann McFall to
make it easier on her and to save the City $16,000. They
are going to give it to the voters if they want to keep the
odd numbered years or the even numbered years.
Bob Lott, Chairman, Charter Review Committee, stated it was
a recommendation by Ann McFall, Supervisor of Elections,
that they adopt this even year election term. A couple of
them they are going to impose upon them to serve a little
longer than they signed up for but they believe it is
important not only for the $13,000 the Mayor has eluded to.
That cost will probably go up over the years. That is our
current cost. We will save that cost initially and most
cost in the future. We have a very low turnout in odd
numbered years. When we have very important issues on the
ballot whether they be Charter amendment issues or just
voting for Council people, we end up having 1,400 to 1,500
people in a City of 20,000 plus making these decisions. On
even numbered years since they are coupled with general,
national and state elections we tend to have double the
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Council Regular Meeting
August 18, 2008
turnout. The feeling is they will get better
representation at the ballot box of the citizens of
Edgewater. There are other advantages to going to this
even year election.
Mayor Thomas opened the public hearing.
The following citizen spoke:
Dominic Capri a , 606 Topside Circle, stated he wanted to
talk about the $16,000 they would be saving. If they think
they are going to save the $16,000 they are dreaming
because they are not. He was sure they would be paying
more to the County when they have to pick up the work. He
believes that everyone on the Council is really interested
in the City. He made a recommendation the last time and
didn't hear a word from any of them if it was good or bad.
He recommended that if they really believe in the City and
they can go to even numbered years each Councilmember could
submit a resignation at due time and then run for office.
That was to bring them to the even numbered years. They
were elected for four years and not five years and one
month. He would like them to give that some consideration.
At least tell him what they think.
No one responded.
Mr. Capria stated nothing, that's what he thought.
Councilwoman Rhodes stated she didn't think he wanted to
know.
Mayor Thomas thought it was the most ignorant thing he has
ever heard in his life.
Councilwoman Rogers stated she thought it was 9:25 p.m. and
they needed to vote so let's get on with it.
Mayor Thomas closed the public hearing.
Councilwoman Rhodes moved to approve Ord. 2008-0-07,
providing for an amendment of the City Charter, Section
3.04 UElection and Terms", second by Councilwoman
Bennington.
The MOTION CARRIED 4 -1.
Councilwoman Roqers voted NO.
Page 28 of 50
Council Regular Meeting
August 18, 2008
E. 2nd Reading, Ordinance No. 2008-0-08, providing
for an amendment of the City Charter by deleting
Section 1.01 (a) (1) (Continued from the July 28,
2008 meeting)
City Attorney Ansay read Ord. 2008-0-08 into the record.
Acting City Manager Barlow made a staff presentation.
Bob Lott, Chairman, Charter Review Committee, stated every
five years sitting Council elects one person from their
district and the Mayor elects one at large and they sit
down and review their City Charter. They do that because
it is an evolution. Things change. They need to look at
the Charter to make sure they are staying in step with
everything that is happening countywide, statewide and
nationwide. This was a very serious issue with their
board. They have had the opportunity since they invoked
the initial 35-foot height limitation to see what the
effects are. Initially that was a very emotional vote. It
passed by 51 to 49. Not exactly a referendum or a mandate.
A year later when they went back and once people realized
what that meant, they went back and said to let them take
out the public buildings, industrial, and commercial
buildings and it was a resounding 73% who said they kind of
made a mistake and let's don't do that. Since that time
they have had the opportunity to witness another city who
has adopted this type of restriction in their City Charter.
They are finding that this is not the optimum way to govern
a community. They are not and never have been a pure
democracy. They are a democracy by representation. We
elect officials to study items and make the right decisions
for them and if they don't they have the opportunity to
replace those elected officials and move forward. St. Pete
Beach adopted this resolution and the Mayor has since come
back and said it stifled the town. They can't keep up with
state mandated growth issues because every single thing has
to go to a referendum vote. Every citizen has to research
and understand every item on that ballot. That isn't what
they signed up for in this country when they talk about a
democracy. They are finding it has been very restrictive
and they find the Land Development Code does not do well in
the City Charter. We already have a 35-foot height limit
in the Land Development Code and uphold. In order to get
around that, there are many steps they have to go through
to make that happen. By adding the almost insurmountable
step of educating and explaining to every citizen that is
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August 18, 2008
going to vote what the total ramification of each amendment
to that particular Charter ordinance would be and they are
finding out it is insurmountable. It stifles any
opportunity to do intelligent growth. Give them an
opportunity to educate the public and to go out and explain
to people what the total ramification is of the decision
and give them a chance to vote on it again. They were
unanimous on that and they are standing firm.
Councilwoman Rogers stated they have 23 residential
projects on the books right now. They are not yet
developed. We have commercial projects that are sitting
there that haven't yet started. We have a few that have
started. This 35-foot height restriction hasn't stopped
them. Other things have stopped them at this point. At
some point the 23 residential projects will come to pass as
well as the ones they have on the books for commercial.
The restriction hasn't limited that. If all of these
developments were going on and permits had been pulled and
things were happening and then they were actually stifling
in this economy then maybe they should consider this 35-
foot height coming out of the Charter. How did it get in
the Charter? Citizens signed petitions and it was voted.
It was 51% and 49%. The people that were trying to get the
petitions, trying to get the 35 foot height amendment
didn't have the economic resources to do the advertising or
marketing that those that wanted the 35 foot height removed
had. The City funds were working against the citizens that
signed those petitions. She feels it needs to stay right
where it's at for now. Let's say these 23 residential
projects get passed and the commercial projects we have on
hand happen and everything is fully built and when they are
actually stifling that is when they need to revisit it.
Not right now. This is premature. The citizens voted for
it. She feels they are beating the dog.
Councilwoman Bennington stated anyone that wants to put
building code requirements in our Charter does not
understand the Charter or the building code or our Comp
Plan. We do not have a democracy. We have a republic.
They are elected to represent the citizens. They cannot
govern by petition. It doesn't work. It did for our
founders but it doesn't work in this day and age. This
issue may not be affecting us right now but it will in the
future and if they just let it sit they will have to
address it in the future. The Charter Committee recommends
this. Every five years they form. They need to get this
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August 18, 2008
out of the Charter. The Charter is the skeleton our
government is based on. It is not made to fill in all
these little whims and put ordinances and codes in there.
That is not what the Charter is for. If they can't as a
city enforce our Codes and our Comp Plan then they are in
serious trouble if they have to go to the Charter to make
the employees and Council enforce that. This needs to come
out. At least it needs to be voted on to come out. She
feels very strongly about this. She has served on several
Charter committees in this City.
Councilman Cooper thinks Councilwoman Bennington and
Councilwoman Rogers brought up issues from both sides.
They are trying to micro manage departments that have been
there for years for people that have been elected and micro
management doesn't work. If they are going to micro manage
everybody through the Charter their Charter will be
hundreds of pages long. They have to trust the directors
of the City to bring a project forward. They have to trust
them to do their job. It is in there already and is
already protecting us. Why are they afraid of voting on
this? He loves the fact that they let the citizens vote.
If they voted it in and maybe it wasn't enough funds or
education if they are better educated now and the citizens
have a better handle or a lesser of a handle or they like
it or don't like it he doesn't understand. Just let them
vote. He trusts the citizens of Edgewater to make an
honest decision.
Councilwoman Rhodes stated she isn't going to ask them to
trust any City official, or to trust any department head or
any employee of the City. She is going to ask them to
trust the voters. They can put this on the ballot every
time it comes up if they want to and whatever the will of
the people is will be the will of the people. Put it on
the ballot and allow the voters their voice.
Mayor Thomas stated he was instrumental in getting this in
the Land Development Code where he feels it belongs. He
doesn't think it belongs in the Charter although he has
received a lot of comments so what he started doing is poll
the public. It was a very close vote. It was 51% to 49%.
He commented on the people he has polled being pro or they
are negative against it. There is no in between. It's a
50/50 deal. What he doesn't like is they put it on the
ballot one time and the people went out and voted for it.
If you don't vote, don't gripe. He has voted since he was
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21 years old. This reminds him of a bunch of kids getting
together and say let's vote on this and the vote comes back
and they don't like it so they vote again. He feels that
sends the wrong perception. The people voted on something.
He is going to vote no not to send it back to the ballot.
Councilwoman Rogers stated the condo, the suit that was
filed against the city. If this 35-foot height would have
bee in the Charter could the developer have sued the City?
City Attorney Ansay stated developers always have a great
advantage in coming up with ways to sue the City. She
didn't handle the case but thought it would have been a
different case and probably a lot stronger for the City had
that issue been resolved. Councilwoman Rhodes stated it
wasn't in the Land Development Code then. City Attorney
Ansay stated the problem wasn't whether it was in the
Charter or not. It wasn't evidenced in any function of
City law. That is where the real rub came in that suit.
Had it been established clearly in the Land Development
Code or the Charter she thinks it surely would have
strengthened the City's position.
Councilwoman Rogers stated the City has been sued before
when things were in the Land Development Code and
developers have come forward wanting a variance. If it is
in the Charter, the City is protected from those potential
lawsuits. City Attorney Ansay stated the Charter is
definitely the most supreme document. They have to go
through a whole lot of work to amend it and get around it.
There are variance procedures described in dealing with can
they get around the height restriction. Just because it
was in the Charter it didn't end everyone's ability to come
forward and claim that they are vested from it and that
they should be allowed to proceed. At the end of the day
it is law beyond the City that will determine whether these
property owners have vested rights and should be able to
proceed. She thinks the proponents of the measure would
certainly argue that by having it in the Charter it is a
lot less likely to be curtailed by staff and future
Councils along the line. She feels that is accurate on what
they believe and that is why they put it there.
Councilwoman Rhodes stated maybe future populations of the
City won't think the way they do now. Why do you hamstring
them? City Attorney Ansay stated that is really more of a
policy and less of a legal debate. At the end of the day
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they have the one argument. If they don't make the right
decision people would say they would throw them out of
office but they don't put the whole LDC into the Charter.
She felt probably ECARD and the folks that support this
would say they put it in the Charter because this Council
or their predecessors weren't doing their job. They are
both valid arguments. Either way there are ways around it.
It definitely is an unusual place to have a land use
restriction like this but there are other cities that have
them.
Councilwoman Rogers felt the point that needed to be looked
at was we do have a number of residential developments that
are not yet complete as well as commercial projects that
are not yet complete. Let's have those built. Let's see
what the impact is. Right now they have so much on the
books that hasn't happened they have to see these
developments come through. They have been approved without
a 35-foot height restriction and some are vested and can go
a little beyond that. They aren't there yet. She feels
this is premature to be put on the ballot at this time.
Mayor Thomas opened the public hearing.
The following citizens spoke:
Dominic Capri a , 606 Topside Circle, stated they voted
already. How many times are they going to vote? The City
Charter as he understand it they look at it every five
years. This hasn't been in the Charter for five years.
The way it explains it on there they are going to confuse
the public. He didn't think this wording should be put on
the ballot. The citizens voted. The Comp Plan and the LDC
has the building heights in it so they say it is in there
so let's take it out of here. Once they get it out of here
what do you think you are going to do? You are going to
fight to take it out of the Land Development Code and Comp
Plan. They are taking a step at a time. There they go
with the building heights to the sky. That is exactly what
is going to happen. They keep saying 12%, which is very
true and he has worked on the polls for years. That is
high because the citizens of Edgewater don't trust the
council. He talks to people and they say what's the use of
voting. They are going to do what they want to do anyway.
His comment is if you didn't vote, don't bitch.
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Ted Brown, Baker & Hostetler, stated he has a firm
conviction that government needs to be run by its
representatives. That means the people at this dais now
and in the future. The question was raised it's been voted
on and how many times will it be voted on again? It will
be voted on again as often as there are people who desire
to do something different and if the only way they can do
it is to go back and get another referendum they could be
doing it he didn't know how many times. The real question
is do they want to reclaim the ability of your city to run
itself from the dais as opposed from the ballot box. If
this 35-foot height limitation is not removed the project
they voted to transmit tonight cannot be built. It's an
important vote. It is a defining vote for the future for
what they talked about west of 1-95. He urged the Council
to give careful consideration allowing that to go back to
the people to see whether or not they believe in the
vision, which they have put forth for this community. They
are going to participate as citizens in helping to educate
them and helping them to understand what this is about.
When this initially surfaced in the community it was really
about protecting the riverfront. It came back before the
people when the expansion of it was understood and they
removed a part of it. Now there is an ongoing need for
them to be able to review, consider, digest, modify,
approve and deal with as a Council whatever anybody brings
in front of them because they have been elected by the
residents of this community to do so. If they want to see
that right by not allowing the people to speak on this now
with an informed contender to help educate on the other
side that is their prerogative. He urged the Council in
the strongest way he could to send this back to the
electorate now so they can understand whether they have a
project or not in November.
Bob Lott, 2112 S. Riverside Drive, stated Councilwoman
Rogers said let's wait until we are stifled and then let's
deal with it. He has never in all his life run his
personal affairs that way. He proactively has vision and
looks to the future that things are going to change. He
spoke of Councilwoman Rhodes saying she envisions a point
in time where people need to live where they work. He
commented on needing to create vertical density, which may
require projects that have retail at the bottom, office
space on one or two floors with residential areas above.
He urged the Council to give themselves the opportunity to
make these decisions. Take it out of the Charter where it
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August 18, 2008
doesn't belong. Let the people decide again.
this twenty times because things change.
They may do
Carol Ann Stoughton, 2740 Evergreen Drive, stated whether
they were voted in by one vote or 100 votes, that is the
way it went. It belongs in the Charter. She would like to
know how much it cost us for our Attorney to not allow the
density question to be put on the ballot, which was not
ambiguous?
Mayor Thomas asked what that had to do with 35-foot. Ms.
Stoughton stated because they have it back on the ballot.
She stated this all started with fireworks given to the
Fire Company and when this developer first started his
development he had no mention of six stories high. You can
see what is going on here. They carefully placed their
people in office. She hoped Mr. Barlow didn't decide to
pay another company to come in and educate the people to
the developer's way of thinking. The people know what is
going on.
Bill Glaser,' 1703 Needle Palm Drive, asked if he understood
one of the Council said that because we live in a republic
that the people do not have the right to petition their
government. Councilwoman Bennington stated that was not
what she said.
Mr. Glaser stated when the Council doesn't do what the
citizens' feel is in their best interest, then if they want
to petition them for something then they will petition them
for something. If it is to change the Charter, if they get
enough petitions and get it on the ballot and the people
vote for it then it will go in the Charter. Just because
the voters voted for the 35-foot height limit the whole
United States is in a depression. If they want to petition
the Council they will petition them.
Councilwoman Rhodes stated and they absolutely should but
that doesn't mean they don't listen to the other 20,000
voters.
Marcia Barnett, 124 Flamingo Road, stated the term smart
growth is our future. In communities across the nation
there is this growing concern about the current development
patterns that some call sprawl. We have it in Florida
Shores. There are no longer in long term interests of our
cities, our suburbs, small towns, rural communities or
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Council Regular Meeting
August 18, 2008
wilderness areas that cannot protect anybody, that kind of
sprawl. The features that distinguish smart growth vary
from place to place but in general new smart growth is more
town-centered, transit and pedestrian oriented and has a
greater mix of housing, commercial and retail uses. It
also preserves open space and many other environmental
amenities. Restoration is the perfect smart growth example
however the 35 foot height requirement in the Charter
threatens to prevent these smart growth principles form
occurring and exposing the project as well as other good
projects to uncertainty that would prohibit the City from
recruiting new businesses and creating new jobs. This
height limit is already in the Land Development Code. If
you have been given the authority to safeguard our
community's quality of life through their decision making
efforts she encouraged the council to accept the
recommendations from their own appointed review committee
of Edgewater citizens and take the height limit from the
Charter and let the voters decide on its merits. The
affirmation vote on this legal measure will send a strong
message that our City's best days are our own and our own
smart growth are just ahead.
Mayor Thomas closed the public hearing and entertained a
motion.
City Attorney Ansay wanted to make note that at the bottom
of Page 2 of 6 the section they are referencing in the
Charter is Section 1.01 (a) (1). There was at the bottom of
Page 2 of 6, it was listed as Section 1.10, which should be
Section 1.01. Any motion let's make it contingent on that
one change, switching those two numbers around.
Councilwoman Bennington moved to accept Ord. 2008-0-08 as
in their agenda, deleting Section 1.01. Councilwoman
Rhodes stated changing 1.10 to 1.01. City Attorney Ansay
stated it is deleting Section 1.01. It is just that in the
ordinance there was one case where there was a type-o and
it was listed as Section 1.10. Councilwoman Rhodes stated
she thought she wanted that mentioned in the motion. City
Attorney Ansay stated deleting the correction section.
Councilwoman Bennington moved to accept Ord. 2008-0-08,
deleting Section 1.01, second by Councilwoman Rhodes.
The MOTION CARRIED 3 -2. Mayor Thomas and Councilwoman
Roqers voted NO.
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Mayor Thomas called a fifteen-minute recess at this time.
The meeting recessed at 9:50 p.m. and reconvened at 10:05
p.m.
F. Resolution No. 2008-R-08, adopting the
Environmental Core Overlay (ECO) Map, formerly
known as Map "A"
City Attorney Ansay read Res. 2008-R-08 into the record.
Acting City Manager Barlow made a staff presentation.
Mayor Thomas stated basically all they have done is change
the name. They are also trying to adopt the Turnbull
Hammock System in that map.
Mayor Thomas opened the public hearing.
The following spoke:
Clay Henderson, Riverside Drive, New Smyrna Beach, stated
he has been involved in this issue for some time. He made
the Council aware of the amount of time the Mayor has been
spending on this over the last several years. He feels
they have made a lot of progress. This map has been a
consensus effort and everybody has come together around
this. The County transmitted its Comp plan last week. The
City has transmitted the Restoration amendments tonight so
they will be going along a parallel path. What is unique
about this is that the County identified in its map about
1,100 acres in the City of Edgewater that is part of ECO
and under what they voted to transmit earlier tonight, that
will all be designated as conservation. As this goes
forward and there will be lots of discussion about this
they can hold their hats high that they are the first city
in Volusia County to take this effort.
Mayor Thomas closed the public hearing and entertained a
motion.
Councilman Cooper made a motion to approve Res. 200B-R-OB,
adopting the Environmental Core Overlay (ECO) Map, formerly
known as Map UA", second by Councilwoman Rhodes.
The MOTION CARRIED 5 - 0 .
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Council Regular Meeting
August 18, 2008
G. Resolution No. 2008-R-09, opposing Niagara
Bottling LLC's Consumptive Use Permit Application
with St. John's River Water Management District
City Attorney Ansay read Res. 2008-R-09 into the record.
Acting City Manager Barlow made a staff presentation.
Councilwoman Rhodes stated they want commercial but not
this.
Councilwoman Bennington stated she heard on television that
there is a lot of cities that are doing this with these
bottling companies and not allowing them to do it.
Councilwoman Rhodes couldn't believe this whole proposition
would be considered by anybody.
Mayor Thomas opened the public hearing.
The following citizen spoke:
Ferd Heeb, 115 N. Riverside Drive, asked the Council to
please pass this and that they would save him a trip to
Palatka. To say his wife is encouraging him to attend the
public hearing is an understatement. Now he can tell her
the whole City is behind it.
Mayor Thomas closed the public hearing and entertained a
motion.
Councilwoman Rhodes moved to approve Res. 200B-R-09,
opposing Niagara Bottling LLC's Consumptive Use Permit
Application with St. John's River Water Management
District, second by Councilwoman Rogers.
The MOTION CARRIED 5 - 0 .
H. Resolution No. 2008-R-10, authorizing and
directing that the Charter amendment related to
density west of 1-95 proposed by Edgewater
Citizens' Alliance for Responsible Development,
Inc. be submitted to the electors of the City of
Edgewater at the November 4, 2008 General
Election
City Attorney Ansay read Res. 2008-R-10 into the record.
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Council Regular Meeting
August 18, 2008
City Attorney Ansay stated several months ago the City
authorized the filing of a declaratory action to resolve
the legal issues related to the proposed Charter amendment
presented by ECARD to be placed on the ballot. The
amendment permitted or restricted and that was one of the
big issues density west of 1-95 to one unit per 20 acres.
The petitions were submitted to the City. At that time the
interested and effected land owners west of 1-95 brought
forth a number of legal issues and challenged whether or
not the measure was legal or not. In order to avoid taking
the process in our own hands, since there were legitimate
concerns we filed that declaratory action to ask the court
what do we do. We are caught between two very opposing
sides. One wanting to get something in the Charter and one
saying it is totally illegal. We now have a ruling from
the judge and the ruling basically came out and said that
the language as it is drafted violates state law in that it
is inconsistent with the land uses and the Comp Plan of the
County and the City. The judge also declared it was
illegal because it violated a particular Florida Statute
that says you can't use these types of measures to effect
five or fewer parcels of land. The judge was very
concerned about the fact that there may be an appeal and so
directed that the measure and ordered the City to place the
measure on the ballot anyway. While he ruled it is illegal
he also ruled that it be placed on the ballot. The
resolution before Council is carrying out the wishes of the
court and doing exactly that. This train is being driven
by interested landowners whose property is being affected
by the measure as well as the citizens that have gone
through the effort of getting the petitions signed to get
the measure on the ballot. The City will continue to be
part of the process. There has been some communication as
to whether or not there will be an appeal although none has
been filed yet. There is a hearing tomorrow on a motion
related to whether or not the order that came out is
actually final and can be appealed. She thought that was
the judge's intention but he failed to directly address a
couple of the issues that were raised and there is case law
that suggested maybe it wasn't final and appealable. To
resolve that, one of the interested landowners has brought
a motion before Judge Rouse to get a ruling on that. She
presumed there would be an appeal. In the meantime the
City should comply with the courts order and place the
measure on the ballot. That is what the resolution before
them does.
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Council Regular Meeting
August 18, 2008
Councilman Cooper stated he tells them it is illegal and
then he tells them to put it on anyway. It doesn't make
sense the judge would be so gray. Let's break the law and
what would be the ramification of the City if it now deems
illegal so we get sued again. Would we be held in contempt
of court if they didn't put it on? Councilwoman Bennington
stated she asked the same thing. City Attorney Ansay
stated the short answer is certainly any time you disregard
a courts order there could possibly be sanctions and
ramifications to that. She would not encourage them to do
that. She concurred it was highly unusual and they have
been unable to find any precedence for a case where a court
has ruled an action is illegal but told a party to do it
anyway. In fairness to Judge Rouse, she clearly understood
what he was trying to do. In every other ballot case when
a judge rules it is illegal the judge says don't put it on
the ballot but here given the tight time frames she thought
his goal was let them appeal the underlying decision on the
merits, i.e. that it is illegal and if they are successful
and the appellate court agrees with them and overturns his
decision that they still have that ability to continue
forward and not be put back two years. The reaction she
has gotten from everyone on the Council and staff is one of
confusion because it is a highly unprecedented thing for a
judge to make a ruling that something is illegal but says
do it anyway in the short term and let's see what works
out. We are ordered to place it on the ballot irrespective
of the fact that the law as it exists now in this final
judgment is that the measure is illegal. We still must do
it and she recommended they do that.
Councilwoman Rhodes stated it isn't illegal for it to be on
the ballot. It is illegal if it passes. City Attorney
Ansay stated as a general proposition in any other case
where the law provides that when a ballot measure is
contrary to state law it is not to be placed on the ballot.
What often happens is it is placed on the ballot first and
then the lawsuit proceeds to determine whether it is legal
so it was already on the ballot to begin with before the
decision of illegality comes out. That is where they find
most of the cases. Here we were ahead of the curve. You
don't find that scenario very often.
Councilman Cooper stated they tried to get a ruling so they
did the right thing and he bypassed everything they tried
to do and didn't give them a ruling. Councilwoman Rhodes
stated he gave us a ruling and said put it on the ballot.
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Council Regular Meeting
August 18, 2008
Our question was do we put this on the ballot and he gave
them that answer. Councilwoman Bennington stated he also
gave them something Mr. Henderson taught her when he was
the City Attorney here and she said Clay why can't they
write these ordinances so people can really understand
them. He said how do you think the attorney's make their
living? Now we have a judge that we have to go and
interpret his ruling.
Councilman Cooper commented on the confusion he believes
this is going to create for the citizens. He questioned
how they fix this?
Councilwoman Rhodes stated the judge said in his order that
he trusted the citizens of the City were of average
intelligence and could understand it. City Attorney Ansay
stated originally there were five legal issues that were
thrown out to the City and the City said to the judge these
are the five challenges that have been raised with us. One
of them was is this measure confusing, is it ambiguous.
The judge ruled on that particular ground that he didn't
feel it was ambiguous. He didn't' find it illegal on that
particular ground but he did on the other two. They had a
very long hearing before Judge Rouse where ECARD's lawyer
presented a very compelling case for ECARD and attorneys
representing four of land owners, with the Snowden's
talking for themselves, the ruling came after a pretty
spirited debate on the issue. After hearing both sides the
judge was compelled by some of the arguments on both but he
did ultimately conclude it was illegal on at least two of
the grounds."
Mayor Thomas opened the public hearing.
The following citizens spoke:
Carol Ann Stoughton, 2740 Evergreen Drive, stated Kelly
Cuculianski of the News Journal wrote a very good article
and this is not ambiguous. It says a proposed City Charter
amendment may violate State law but a judge ruled that
voters should be allowed to have their say on the
controversial measure in November. She thanked Kelly.
City Attorney Ansay explained that the order is very clear.
There is a part that says it is ordered and adjudged that
the article was a little bit inaccurate in that it used the
word may. The court concluded it is. If an Appellate
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Council Regular Meeting
August 18, 2008
Court overrules that the answer would change. As they sit
here today the judge has ruled in that regard.
Ted Brown, Baker & Hostetler, for the Restoration project,
stated it his considerate opinion that they have no choice
but to put this matter on the ballot. They have a court
order in front of them that compels that. To say he
understands what the judge has done would be misleading
them greatly. As the City's counsel has advised them this
is unprecedented in terms of their own research on this
matter. Until someone reverses that decision through the
appellate process or the judge himself reverses it on his
own initiative, they must go forward. Whether or not this
passes and forgetting the legal implications of the other
part of the court's order depends to a large extent on what
the City does as reps of this community. Whether they get
out and convince people that the right way to run a City is
to entrust the power to their elected representatives, it
doesn't forestall the right of petition initiative but you
cannot run a City through the constant purview of petition
initiatives. He is hopeful. One of the reasons they are
going to participate actively as a developer in this
community is because they own a lot of land, they have a
lot of money invested in Edgewater, they don't think this
is the way to run the railroad and they are hopeful that
the weight of what this means that the citizens of this
community once told and can understand they have great
faith that they will understand that it is important to the
long term future of the City of Edgewater that the Council
and their successors have the unencumbered authority to
make decisions about what it is this City is going to do
and what is in it's best interest. They stand ready to be
shoulder to shoulder with the Council and other citizens
who want to see this matter on the ballot and hopefully
when it is on the ballot they can clear the issue at all
time and these legal arguments will not need to be dealt
with from this point forward. They look forward to working
with the City. They are hopeful the combination of all of
that will enable them to claim victory in November and move
forward.
Councilman Cooper stated there may be an appeal and
depending on how fast that comes into fruition if the
appeal overrules this ruling and they have it on the ballot
now what would happen? City Attorney Ansay explained if
there were an appeal and the appeal were resolved prior to
November 4th finding that the measure is indeed valid and
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August 18, 2008
legal, not illegal, reversing Judge Rouse, then it is on
the ballot anyway and the voters get to vote on it and
whatever happens in terms of the election would be
instituted into the Charter. If it passes, you put it in
the Charter. If it doesn't, you don't. There are a number
of procedural steps that would need to take place. If the
court were to affirm the decision and basically say they
thought Judge Rouse made the right decision, that this is
illegal, the court would also likely deal with the issue of
the fact that it is on the ballot. They would likely rule
the election is moot or not to be considered. The way that
works in the election process is they have up until
election day to instruct the Supervisor of Elections to
count or not count certain measures that are on the ballot.
If a court were to say it was illegal and it didn't count,
they would tell Ann McFall not to go through the process of
counting all of these votes. It now has become moot by a
court order and therefore it is ineffectual. Ann McFall
has informed her that could be done as of November 4th.
That would only be if the court were to make that decision.
Mr. Brown agreed with City Attorney Ansay's explanation.
City Attorney Ansay explained up until such time as a court
says it shouldn't be counted the process has to go forward.
It has to be put on the ballot and it has to be counted.
Admittedly this really is a new area of law. She has had
very good conversations with counsel for ECARD about the
law and the issues. She thinks they are correct in that
there is not a whole lot of authority and it is very likely
that the City of Edgewater may be one of the test cases in
this area of the law.
Councilman Cooper asked if it was likely that an appeal can
be judged upon that quick in this short period of time.
City Attorney Ansay stated in election cases the court has
the amazing ability to rule really quickly on these types
of issues. They generally make every effort to do so
understanding there are certain time frames. Here it is on
the ballot already. She suspects if either of the two
parties are interested in seeing a resolution quickly
before the election that they will get one.
Clay Henderson, Riverside Drive, New Smyrna Beach,
representing Mercedes, the Reflections project that is also
affected by this, stated he has never quite seen anything
like this. He agreed they have no choice but to move it
forward to the ballot. He commented on a situation in the
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August 18, 2008
County back in 2004 where an initiative was placed on the
ballot to amend the County Charter and the 5th District
Court of Appeals stepped in with about two weeks to go
before the election and declared it to be invalid. It did
not count and that could be the case here. The Reflection
situation is a little different. They still have an active
counter claim against the City on the basis of protecting
their rights. They have their land use amendment. It was
given to Council and DCA approved it. They have the
rezoning. The Council granted that order. They even have
a conceptual permit from St. Johns. To come in and be able
to do this by Charter, if they can do this, this turns
everything that all of them know about growth management
and permitting on its ear. They look at they will take the
order on its face value. They believe it is illegal and
will continue to process their paperwork with the City and
they have every confidence the City will continue to
receive it, and review it and process it in the order
because they are entitled to those rights that have been
given to them by this Council and approved by the other
parties. They will be there with them but they are in a
little different situation and will continue to move
forward to protect their rights in the matter. He
commended the Council for bringing the declaratory action
and asking the judge for his advice. He thinks that was
prudent and he complimented the City Attorney for doing it.
Bob Lott, 2112 S. Riverside Drive, stated they have three
counsel who have suggested that although it is illegal on
two counts they have no choice because they are officers of
the court to. advise the City to abide by the court's
decision.
Mr. Lott asked City Attorney Ansay what the sanctions and
consequences she referred to were? City Attorney Ansay
stated judges have the power to issue sanctions, contempt
orders. It could be monetary sanctions. She felt jail
time would be highly unlikely. Typically contempt when it
comes to a final judgment usually involves a particular
person. She didn't think they would throw all five of the
Council in jail. She would not encourage the City to do
anything in the court's eyes that would be viewed as
contempt. We are in the process of litigating with this
very judge a vested rights determination where they have
said a developer is not vested and the developer is
appealing and they are going to be back before Judge Rouse
in a couple of weeks to argue our case. She doesn't want
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August 18, 2008
to have to go in there and try to plead her case to the
judge when at the same time he lS asking her why her client
disobeyed his order.
Mr. Lott stated they are going to do what they are going to
do but he would do it under severe protest. He thinks that
having the court system make laws, he thought it was up the
laws to interpret and enforce laws. This to him doesn't
fall under that category. They aren't enforcing the law.
Councilman Cooper asked if they could do it under protest?
Councilwoman Bennington stated what difference does that
make? Councilman Cooper stated because you go on record as
saying you really want to put something on that you were
already told" is illegal. City Attorney Ansay stated her
legal opinion would be that doing it under protest may make
them feel better but she didn't think it would have any
legal effect. The fact of the matter is it will still go
on the ballot. The Council's direction to her and she does
understand if it is they are doing it because they are
being ordered to do it, if there ultimately is an appeal
and the is of whether or not this whole thing was proper to
require them to place it on the ballot when it was deemed
illegal she can make sure that any Appellate Court knows
their distaste for that. Beyond that they still have to do
what they are ordered to do.
Bill Glaser, 1703 Needle Palm Drive, asked if any of the
Council had ever perused the Florida Statutes. Mayor
Thomas stated he has enforced them. Mr. Glaser asked about
Title 12 - Municipalities, Chapter 171 - local government
boundaries. It has to do with annexation procedures.
Number two says following final adoption of the ordinance
of annexation by the governing body of the annexing
municipality, the ordinance shall be submitted to a vote of
the registered voters of the area proposed to be annexed.
There is another jewel on here. The governing body of the
annexing municipality may also chose to submit the
ordinance of annexation to a separate vote of the
registered voters of the annexing municipality. He found
that kind of interesting. He went out and searched. He
never found one city in the State of Florida that ever
allowed the voters to vote on whether they wanted property
annexed into the City. They have that opportunity to give
that choice to the voters when they are annexing large
tracts of property into the City and there they would have
their answer. How many people wanted it and how many
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didn't want it and they wouldn't have all this petition
business.
Pat Card, 3019 Willow Oak Drive, stated he looks at this a
little bit differently. He thinks this judge has put them
in a commendable position. They have the opportunity to
ignore one person or all of the Legislature of the State of
Florida.
Mayor Thomas asked Ted Brown if a judge ordered them to do
something if he would do it. Mr. Brown responded by saying
yes. Mayor Thomas then asked Clay Henderson if a judge
ordered him to do something if he would do it. Mr.
Henderson informed him he was in a special situation.
Unlike anybody else in this room, he can be held in
contempt of household. Councilwoman Rhodes asked him if
that was a yes. Mr. Henderson informed her he does what he
is told.
Mayor Thomas closed the public hearing and entertained a
motion.
Councilwoman. Rhodes moved to approve Res. 2008-R-10,
authorizing and directing that the Charter amendment
related to density west of I-95 proposed by Edgewater
Citizens' Alliance for Responsible Development, Inc. be
submitted to the electors of the City of Edgewater at the
November 4, 2008 General Election, second by Councilman
Cooper.
The MOTION CARRIED 5 - 0 .
8. BOARD APPOINTMENTS
A. Economic Development Board - Councilwoman Rogers
appointments to fill the expired term of Eric
Caplan, who seeks reappointment (Continued from
the July 28, 2008 meeting)
Councilwoman Rogers moved to reappoint Eric Caplan to the
Economic Development Board, second by Councilwoman Rhodes.
The MOTION CARRIED 5 - 0 .
B. Firefighters Pension Board - Councilwoman Rogers
appointment to fill the expired term of Gary Butt
who seeks reappointment and has been re-elected
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Council Regular Meeting
August 18, 2008
by the other Board Members (Continued from the
July 28, 2008 meeting)
Councilwoman Rogers moved to reappoint Gary Butt to the
Firefighters Pension Board, second by Councilwoman Rhodes.
The MOTION CARRIED 5-0.
C. Firefighters Pension Board - Councilwoman
Bennington's appointment to fill the expired term
of Martin Tse, the Board recommends appointing
Deborah Harrison (Continued from the July 28,
2008 meeting)
Councilwoman Bennington moved to appoint Deborah Harrison
to the Firefighters Pension Board, second by Councilwoman
Rogers.
The MOTION CARRIED 5 - 0 .
9. OTHER BUSINESS
A. City Clerk's release from probation and annual
compensation of $50,000 effective August II, 2008
Councilwoman Rogers moved to release the City Clerk from
probation and that they allow her to have an annual
compensation of $50,000 effective August 11, 2008, second
by Councilwoman Rhodes.
The MOTION CARRIED 5 - 0 .
B. Approval of a one year extension with McDirmit,
Davis & Company, LLC and authorization for the
Acting City Manager to execute the engagement
letter and conduct the request for proposal
beginning with fiscal year ending September 30,
2009
Acting City Manager Barlow made a staff presentation.
Councilwoman Rogers asked when they would start the other
process to retain someone else. Acting City Manager Barlow
suggested probably January. Finance Director McKinney
stated he went through this whole thing last year and it
took them six months from start to finish.
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Council Regular Meeting
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Councilwoman Bennington questioned the money coming out of
the General Fund and if they were going to prorate the
Enterprise Fund for their share. Finance Director McKinney
informed her it is taken care of in the cost allocation.
McDirmit, Davis even though there was up to three one-year
renewals they have only committed for one more renewal. He
thinks they are ready for a change. Councilwoman Rhodes
always thought it was good to switch auditing companies.
Finance Director McKinney informed her they are required to
now by the Auditor General.
Due to there being no comments, Mayor Thomas entertained a
motion.
Councilwoman Bennington made a motion to approve the one
year extension with McDirmit Davis & Company and to
authorize the Acting City Manager to execute the engagement
letter and conduct the request for proposal beginning with
fiscal year ending September 30, 2009, second by
Councilwoman Rogers.
The MOTION CARRIED 5-0.
10. OFFICER REPORTS
A. City Clerk
City Clerk Wenzel thanked the Council and stated she would
do her best not to let them down.
B. City Attorney
City Attorney Ansay had nothing at this time.
C. City Manager
Acting City Manager Barlow reminded the Council of the
workshop on August 23rd in the Community Center for the
Envision Edgewater process. City Clerk Wenzel will be
coordinating refreshments as well.
Acting City Manager Barlow reminded them of the Enterprise
Fund workshop on August 25th at 6 p.m. in the community
Center.
Acting City Manager Barlow informed Mayor Thomas provided
the WAV meeting continues on Wednesday that Brenda Dewees
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Council Regular Meeting
August 18, 2008
would also be attending. One of the discussions is the
Health Department is requesting that the cities add an
assessment to their water bills, which they claim offsets
the cost to continue with the Safe Drinking Water Act.
It's a $.95 per every single residential connection, once a
year and $15 for all others. The language in the request
is quite confusing and not very descriptive. They have
concerns if they are mandated or required to utilize the
services of the Volusia County Health Department verses
going back to FDEP for their services. There is a lot to
be flushed out of this request. They are digging into it.
They aren't sure how far the initiative has gone.
City Attorney Ansay stated the only thing she knows is the
Executive Director has been asked to get support at the WAV
Board. She thought her recommendation was going to be to
do it. That is based on information conversations where
she thought it was a good idea. It's on their agenda for
Wednesday.
Acting City Manager Barlow presented an update on Tropical
Storm Fay.
Councilwoman Rhodes asked if all staff would be there
tomorrow. Acting City Manager Barlow confirmed all staff
would be here and that they weren't planning on closing any
government offices in Edgewater.
Councilwoman Rhodes asked about trash collection tomorrow.
Acting City Manager Barlow informed her they would probably
have it picked up before the storm. Councilwoman Rhodes
asked if recycling would be the same. Acting City Manager
Barlow confirmed recycling would be the same.
Acting City Manager Barlow stated they would open up a
citizen info~mation center so they can call and talk to a
real live body with real information. They have already
stacked sand piles at Rotary Park, Whistle Stop Park and at
Fire Station 57. Bring your own bags and bring your own
shovels. He would be monitoring the flooding issues
throughout the City. He further commented on the City
departments being prepared. He then reported that Volusia
County had announced they were closing the schools on
Tuesday and Wednesday and they have opened up two shelters.
He didn't anticipate any significant issues with this
storm.
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Council Regular Meeting
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Mayor Thomas stated he would be coming down here after his
dentist appointment and getting in the field with somebody.
He asked Acting City Manager Barlow to line it up.
1) Tentative Agenda Items
There were no Tentative Agenda Items to be discussed at
this time.
11. CITIZEN COMMENTS
There were no Citizen Comments at this time.
12 . ADJOURNMENT
There being no further business to discuss, the meeting
adjourned at 11:00 p.m.
Minutes submitted by:
Lisa Bloomer
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Council Regular Meeting
August 18, 2008