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04-06-1998 - Regular '-'" ...., CITY COUNCIL OF EDGEWATER REGULAR MEETING APRIL 6, 1998 7:00 P.M. COKKUNITY CENTER MINUTES CALL TO ORDER Mayor Allman called the Regular Meeting to order at 7:00 p.m. in the Community Center. ROLL CALL Mayor Randy Allman Councilman James Gornto Councilman Myron Hammond Councilman Gary Roberts Councilwoman Judith Lichter city Attorney Nikki Clayton City Manager Kevin Grace City Clerk Susan Wadsworth Police Chief Lawrence Schumaker Present Present Present Present Present Present Present Present Present INVOCATION. PLEDGE OF ALLEGIANCE The invocation was delivered by Councilwoman Lichter. There was a pledge of allegiance to the Flag. PRESENTATION OF PLAQUES/PROCLAMATIONS A. Mayor'S Award of Excellence Plaque and Proclamation to Steve Hardock Mayor Allman read a proclamation and presented Steve Hardock with the proclamation and a plaque. B. Plaque and Proclamation of Appreciation to Joe Martin for his efforts with economic development Vice Mayor Roberts read and presented Joe Martin with a Certificate of Appreciation plaque. APPROVAL OF MINUTES A. special meetinq and reqular meetinq of March 2, 1998 Councilman Gornto made a motion to approve the minutes of March 2, 1998, second by Councilwoman Lichter. The motion CARRIED 5-0. B. Reqular meetinq of March 16, 1998 Councilman Gornto made a motion to approve the minutes of March 16, 1998, second by Councilman Roberts. city Clerk Wadsworth informed Council of a correction on Page 9 changing Assistant community Development Director to Acting Community Development Director. The motion CARRIED 5-0. CITIZEN COKKENTS REGARDING AGENDA ITEMS ONLY Doris Hill, 112 Lincoln Road, spoke in opposition to extending the employment of Nikki Clayton as the city Attorney for the City of Edgewater. She spoke about the City paying two attorneys to handle the News Journal suit. .--- ..., Ms. Hill feels City Attorney Clayton has failed to handle the Meadow Lake Homeowner's suit filed by Perry Barrett against the city. The big problem she has with City Attorney Clayton is her part in failing to notify the City in a timely manner that this inverse action suit had been refiled against the City. It was apparent at the March 16th meeting she hadn't advised the Council and City Manager that a failure to answer the court by March 16th would result in default and could have resulted in the judgment in favor of Mr. Barrett. Ms. Hill stated according to the McIntosh firm of attorneys, this would have been precedent setting and could have been harmful to the City. Ms. Clayton was the attorney of record in January when this decision came down. Ms. Hill would like the Council to look more closely at her qualifications before they make any decisions to continue further with Ms. Clayton. She feels any action rushed through tonight would be most inappropriate. Dominic Capria, 606 Topside Circle, stated he is not against hiring Nikki Clayton. He spoke about the Special Meeting of February 9th. Council considered but did not follow through in giving City Manager Grace the authority to interview other candidates. This bothers him because they terminated the past attorney because of the money that was being spent. He is afraid they are going in that same direction. He feels Council should follow through on their commitments and interview for in-house attorneys like they said they would. If it is Nikki Clayton, so be it. He feels she has done a good job. He again stated he is not against hiring Nikki Clayton, he is against the principles of the way they are going about it. Dick Martinez, 317 Schooner Avenue, stated the former City Attorney was paid $95,000 including benefits for a 40-hour week. He spoke about City Attorney Clayton's fees would result in a 25- hour week at $130,000. If she worked a 40-hour week, it would cost $208,000 which would be more than twice the cost of the former attorney. He is sure Ms. Clayton is competent but he can't believe they are about to embark on an effort where it would cost twice as much as it previously did. He also feels Council should advertise this position, get competitive bids and then make a decision. Ferd Heeb, 115 N. Riverside Drive, does not feel City Attorney Clayton should be appointed to a permanent position because she brings to the position a certain amount of controversy. He spoke of the firings of Krista Storey and George McMahon because they were controversial. He feels City Manager Grace has been well received by City staff and citizens. He stated Council is about to step back into the flaming pit where controversy reigns supreme. There are many qualified attorneys willing to serve the City who bring no baggage to the position. He urged Council to take this into consideration. Henry Dardinski, 2704 Sabal Palm Drive, spoke about City Attorney Clayton charging $100 per hour. He questioned if the City is getting its moneys worth at $100 per hour. He asked Mayor Allman, Councilman Roberts and Councilman Hammond how much Perry Barrett gave to them during their campaign. Mayor Allman stated not one dime. Mr. Dardinski spoke about City Attorney Clayton representing Perry Barrett in the past. He feels it would be a disservice to the City to put a fox in with the chickens. Page -2- Council Regular Meeting April 6, 1998 .... ...., Gerry Small, Indian River Blvd & Victory Palm Drive, spoke about Florida Power & Light. She feels they have been treated as second class citizens. She spoke about the mess they made to her lawn and being forced to come back and redo her lawn. Ms. Small has serious consideration about the appointing of the permanent attorney as Ms. Clayton. She wishes Council would give more consideration to other people. Candace Natoli, 35th Street, spoke about the power poles that go through the center of Florida Shores. She feels the power poles could be disguised as lighthouses. She expressed concern regarding the City Attorney appointment. She referred to the State Code of Ethics - Article V. She asked that the Commission on Ethics be invited to give an opinion. She presented their address. Mike Visconti, 316 pine Breeze Drive, feels Florida Power & Light knew those poles were unwanted in Edgewater. He spoke about not being able to do anything about this because Florida Power & Light owned the right-of-way. He went on to speak about ways to beautify the poles. Mr. Visconti spoke about the widening of S.R. 442 and losing thirteen homes. He suggested negotiating with Eckerds and have DOT buy that piece of property. Have Eckerds buy the piece of property south of Barnett Bank. He feels they should have the retention pond between U.S. #1 and the Library. He would like to see City Manager Grace negotiate with Eckerds. Paul Jenkins, Willow Oak Drive, has a problem with the process being used on the City Attorney situation. He feels if Council has decided they do not want a firm, they should open up the bidding to all the single individual attorneys who did not apply under the firm status. Ron Prekup, 1829 Lime Tree Drive, spoke on the qualifications of City Attorney Clayton. He was accused by the News Journal of being involved in a conspiracy on the Florida Sunshine Law. He spoke about Ms. Clayton representing him at his deposition and the way she handled it. He feels Council is doing a good job. The other attorney we had was not certified to litigate. Ms. Clayton is certified in the various courts to litigate cases. Edward Fahey, 920 S. Riverside Drive, made contributions to anyone on the Council that asked for it. He made these contributions because he didn't like what we had in Edgewater and he wanted to see it gone. He feels Council is doing a good job. It is okay with him if Council decides to put Ms. Clayton on. Edward Keenan, 1905 pine Tree Drive, spoke about Ms. Clayton not being the attorney of record for Mr. Barrett by any means when this case was won. Mr. Dorn was the attorney who represented Mr. Barrett. Mr. Keenan spoke about eliminating thirteen homes and putting in a retention pond. He stated there are eight or nine lots on Indian River Boulevard that could be turned into ponds and would like Council to look into this. He spoke about beautifying Indian River Boulevard and the retention ponds. Mr. Keenan feels if the Council is comfortable with the work Ms. Clayton is doing, they should keep her. CITY COUNCIL REPORTS Councilman Hammond spoke of the main drive in the wooded area in the Meadow Lake Subdivision. On 28th Street the ditch has been blocked that drains over there. He asked if this ditch could be opened up. Page -3- Council Regular Meeting April 6, 1998 .... ..", councilman Hammond stated a few people have approached him about giving reasons why he does things. He spoke about people criticizing what is going on. He didn't really want this job but he took it. He does think for himself. He might not say much but when he does, it is from his heart. councilman Roberts spoke about S. R. 442, the homes that will be lost and using the property where Eckerds is going in being mentioned to DOT. Council asked them to try and find alternative locations for water storage. We will do our best to get them to listen more. councilman campaign. around the has turned done. Roberts stated Mr. Barrett did not donate to his He wanted this job because there were a lot of people City that weren't doing a good job. He thinks Council this place around and he is proud of what they have Councilwoman Lichter spoke about murals being painted on the side of buildings. She sat down with the City Historian and has gone through all the slides of our history since the civil War. She would like to attend the Beautification Committee's next meeting and pick their brains on the subject. City Attorney Clayton informed her there would be no conflict because it is an advertised public meeting. Councilwoman Lichter spoke about the benches and the advertisements on these benches. She was approached by a businessman who has ten of these signs for the sum of $250 per month. He can not advertise at that price. He feels they need to weigh whatever they do and think about it. City Manager Grace informed Council of a meeting he had with the gentleman who does the bench advertising. He has a follow up meeting scheduled with him and Jack Corder of how they might tone down the benches. Councilwoman Lichter asked about compiling a list of the social services that Edgewater offers. Mayor Allman asked City Attorney Clayton to prepare a list of service contracts and the status of each because many businesspeople in the City have told him that the City has not been business friendly in the past. He feels nothing is ever bid out to give new people a chance to compete. He wants to stop business as usual and open up City operations to competition. Mayor Allman was approached by a banker who brought him a proposal for banking services. He says if we bank with him he can double the yield of our investments. That sounds like a good reason for the City to do some shopping. He distributed and went over a list of the continuing service contracts. Mayor Allman asked for Council's support on this. Councilman Gornto made a motion to put the various services that are biddable out for bid and look into these things that have not been reviewed and try to get a better price, second by Councilman Roberts. Councilwoman Lichter feels they should include small items such as the water service. The motion CARRIED 5-0. City Manager Grace informed Council one of the been looking at is the copy machine situation. of different contracts. He has asked staff to RFP that will hopefully organize that into one purchase contract. Page -4- things staff has We have a number pull together an large lease or Council Regular Meeting April 6, 1998 ..... ~ Councilman Gornto has read the Florida Power franchise contract and the minutes that related to that period of time when those poles were controversy. He has spent time at the substation and toured four substations on Mason Avenue, LPGA, and two in Port Orange. He feels if things don't get better, his personality will change on this issue. Councilwoman Lichter asked if Mr. Coleman was supposed to be there this evening. City Manager Grace stated he has a meeting tomorrow with Mr. Coleman and Mr. Gerwe with FP&L to address some of these issues. He wants to see if they can resolve some of these things at staff level. PUBLIC HEARINGS. ORDINANCES AND RESOLUTIONS A. Public hearing Ord. 98-0-02 Amending Article IV (Tree Preservation & Protection) Mayor Allman read Ord. 98-0-02 and opened the public hearing. Acting Community Development Director Lynne Plaskett made a staff presentation and recommended approval of this ordinance. George Ewing, Royal Palm Drive, spoke about having to have four trees on the site in order to get site preparation. He referred to Section 14-56. This ordinance says when you get a site preparation you have to get a permit from the City to have a certain number of trees on the premises. After the dwelling is completed, the ordinance says you can remove all the trees. Ms. Plaskett stated this ordinance does not address single family homes. This ordinance is only for projects that require site plan approval which is commercial projects. She feels the reason this provision was put in was the same as for allowing exemptions to single family duplexes for certain things. She suggested if people aren't happy with having to leave certain types of trees on their property, they should make the property owner aware the trees can be removed and replace them with trees of their choice. Mr. Ewing feels this needs to be changed and Council needs to look at it. Mayor Allman asked Ms. Plaskett to look into that. Mayor Allman closed the public hearing and read the amendment. Councilwoman Lichter made a motion to approve Ord. 98-0-02, second by Councilman Hammond. The motion CARRIED 5-0. B. Public hearing re: request of Florence Anderson and Raymond L. Anderson for amendment to development agreement for property located at rear of 1904 South Riverside Drive Acting Community Development Director Plaskett made a staff presentation and recommended approval of the Amendment to the Anderson Development Agreement. Mayor Allman opened the public hearing. Ray Anderson, 1905 S. Riverside Drive, presented an update of what they have done up to this point. He requested an extension. Councilwoman Lichter noted that the Planning & Zoning Board recommended the extension with no one voting against it. Mayor Allman closed the public hearing. councilwoman Lichter made a motion to grant Mr. Anderson his extension, ,second by Councilman Roberts. The motion CARRIED 5-0. Page -5- Council Regular Meeting April 6, 1998 ~ ..""" c. Public hearin9 re: development a9reement for All Storage Phase III located at 1904 Hibiscus Drive Mayor Allman opened the public hearing. Acting Community Development Director Plaskett made a staff presentation and recommended approval. Councilman Gornto asked Ms. Plaskett to explain this being zoned B-2 and having 30% coverage and wanting to go to 42%. Ms. Plaskett explained initially it was 42% but Mr. Geil informed her it is now 35%. He questioned being able to give a variance to go to 35% without putting Mr. Browning at risk. Ms. Plaskett elaborated on the four options Mr. Browning has. City Attorney Clayton explained she developed the language for the developer because she figured he had had some patience with the City and wanted to go ahead and expand. The phases had been anticipated when the initial plan was brought forward. Because of the inability for the City's timing to meet the developers timing, rather than make a developer wait, if he wanted to assume the risk then we said proceed because it is really going to be up to the City to carry the day for the entire area that has been proved for this industrial planning and rezoning. We didn't want anyone to believe there was going to be some precedence set by this. Councilman Gornto stated the project he just completed is one of the nicer ones in the area. He feels what he is doing down there is what they want to see occur in that area. Ms. Plaskett explained part of the criteria they have to follow is that it is in compliance with the Comprehensive Plan. until that rezoning occurs, it is not. Councilman Gornto asked the timing to getting the plan changed the way they want it. Ms. Plaskett stated probably by the end of the year. City Attorney Clayton explained that is why they decided to do what they could to help the developer proceed and at the same time advising there were some things the City may not be able to control. Luis Geil, 2105 Saxon Drive, New Smyrna Beach, elaborated on the 35% increase in allowable lot coverage. John Browning stated B-2 does require a limit of 30% and I-1 allows 42%. He is asking for an additional 5%. The configuration on that particular lot will not be a hardship on anybody. He asked Council to allow him to go to 35% and to remove the requirement that he has to tear this down, if they so decide, later on. John Moore, Economic Development Board, feels Mr. Browning has the right to develop his land. He feels the Comp Plan should be amended. He feels maybe this will give DCA a little incentive to see the City wants to develop this as an industrial area and better the property. He feels Council should make this exception for any of the property owners on Guava and Hibiscus Drives. Councilman Gornto asked if they do make an exception, what problems does that cause. City Attorney Clayton explained it sets a precedent for anyone else out there who has B-2 zoning to ask for the same conditions which are more intense or dense under the industrial although it hasn't gone through the rezoning. Councilwoman Lichter feels they can not take away the stipulation and they have to take it the way it is written. Page -6- Council Regular Meeting April 6, 1998 '-" ....., City Attorney Clayton spoke about the LDRA struggling with this issue. She explained a point was made that if the Council wishes to encourage economic development, we've got to be flexible in the development of alternatives so they don't circumvent but that they incorporate into a workable way what they have on the books or change what they have on the books. City Attorney Clayton stated if the gentleman were to find that we didn't get approval and had to request a variance, she thinks Ms. Plaskett's analysis of the variance where it isn't a special circumstance like this would be correct but under this circumstance she feels Council would be somewhat committed to considering favorably any kind of variance request later on. Councilman Roberts asked if they should be approving the fact that Mr. Browning wants to put on 35% limited at that until the change of zoning and then if he wanted to increase his building space up to 42% from the 35%, he could. City Attorney Clayton explained using the logic that we are trying to apply here, he should be allowed to go up to whatever it is that he would be allowed to under the zoning and land use we have applied for already. The City is on record approving this area for uses up to 42% coverage. Councilman Gornto stated they would be adopting an agreement that says Mr. Browning may be required to remove part of this if it is not approved. Councilman Hammond asked how they can tell someone they can go ahead and build and then tell them to tear it down. City Attorney Clayton explained she thinks the point is that he has the choice of assuming the risk knowing he has the ability to either purchase more land, ask for a variance or at least likely tear the building down. He would have the option of seeking a variance at which time the Council would have the opportunity to decide what they wanted to do. City Manager Grace stated if they don't get approval from DCA, what would be in front of Council is going to be a variance, not a proposal to tear the building down. City Attorney Clayton stated she heard Mr. Geil state they were requesting that provision be removed. The LDRA struggled with the issue. They wanted to have the applicant know he was moving at his risk. They didn't want to be forcing him to tear it down either. She stated she could perhaps reword the agreement so it says a variance as opposed to the kind of language that the applicant says will cause a banker to not be able to approve the agreement, if that is a concern. Councilwoman Lichter asked if it would be rewritten to say he could apply for a variance. City Attorney Clayton stated he could apply for a variance and purchase more land. Councilman Roberts asked because this is a public hearing, do they have to go through two. City Attorney Clayton stated this is the second public hearing. The first one was held with the LDRA and then they forwarded their recommendation which was unanimous. They were concerned about whether the applicant was willing to do the agreement. She asked if there is a problem for the applicant with this agreement that they could make more palatable, short of removing the provision entirely. Mr. Browning feels what is being suggested is okay. Mayor Allman closed the public hearing. Page -7- Council Regular Meeting April 6, 1998 ...... ~ Councilman Roberts made a motion to approve the development agreement providing the language where the developer acknowledges that he is assuming a portion of the risk but is aware he may be able to seek a variance or purchase additional land to bring his land into conformity, second by Councilwoman Lichter. The motion CARRIED 5-0. D. ,Public hearing re: request of James C. and Rosemary Carder for amendment to development agreement on Pelican Cove West Phase II Acting Community Development Director Plaskett made a staff presentation and recommended approval of the amendment to the Pelican Cove West Phase II development agreement. Mayor Allman opened and closed the public hearing due to there being no citizen comments. Councilman Roberts made a motion to accept the amendment to the development agreement on Pelican Cove West Phase II, second by Councilman Hammond. The motion CARRIED 5-0. CONSENT AGENDA A. Request of Fire/Rescue Services to purchase 7 sets of firefighters turnout gear at cost of S5,580 piggybacking on City of Orlando's contract B. Renewal of Florida Department of Transportation Highway Maintenance Contract Councilman Gornto made a motion to approve the Consent Agenda, second by Councilman Hammond. The motion CARRIED 5-0. OTHER BUSINESS A. Appointment of Nikki Clayton as City Attorney city Manager Grace presented the background information and informed Council of the modifications made to the contract. Councilman Roberts made a motion to appoint Nikki Clayton as City Attorney, second by Councilman Gornto. Councilwoman Lichter stated that in no way is this a personal issue nor is it a matter of qualifications of attorney. What she wants to address and why she is against this motion is for the process involved. She does not think hiring one person without advertising meets the legal and financial needs of the City. Councilwoman Lichter spoke about City Attorney Clayton being hired as Interim City Attorney back in October. Several weeks later the contract and hours were spelled out. That total sum at that point could average $129,900 a year. One of the biggest complaints about our past attorney was how much she was making and what they were getting for their tax dollars. It was decided and recommended, with the help of Kenneth Hooper, that a firm would probably be the best most economical way to go. Councilwoman Lichter spoke about the interviews they held for firms. On February 9th, Councilman Roberts felt if they were going to consider an individual over a firm, then they should advertise for individuals and see who responds. She said City Manager Grace expressed his thoughts in terms of in-house attorney. You work it out on a per hour basis and have an attorney that works out to be about $46 per hour including benefits. Page -8- Council Regular Meeting April 6, 1998 ..... .., Councilwoman Lichter stated Mayor Allman felt they should advertise for individuals and see what is out there. After they are interviewed, then call a workshop and discuss the pros and cons and decide which way they are going to go. Councilwoman Lichter feels they need to advertise and do interviews. She does not think they should hire this evening. She. thinks they should advertise for individuals. She feels it is unfair to the City, to the taxpayers and other attorneys. This is not personal. Mayor Allman referred to a memo written by Ken Hooper on November 19th as far as outsourcing of the City Attorney function. If it is $125,000 per year, which he doesn't believe it will be that high, we aren't paying any benefits or severance pay and we are getting top notch quality assistance which they have had for six months. Councilwoman Lichter spoke about since they have started, they have also already gone out for outside legal counsel. It is very clear in this contract, that it may well not stop at that point. She is not going to go by the nickel at this point. She stated you don't have the whole picture until you have competition and all the facts. The motion CARRIED 4-1. Councilwoman Lichter voted NO. B. Councilman Gornto appointment to Animal Control Board Councilman Gornto appointed Dr. David Vanis. C. Name change for city newsletter (Tabled March 16, 1998) City Manager Grace likes the name The Edgewater Shorelines. Councilwoman Lichter suggested River Talk. City Clerk Wadsworth also likes The Edgewater Shorelines. Councilman Gornto made a motion to change the name to the Edgewater Shorelines, second by Councilman Roberts. The motion CARRIED 5-0. GENERAL CITIZEN COMMENTS/CORRESPONDENCE Shelly Gianino, 1709 S. Riverside Drive, spoke about opening up business to other people in the City. It surprises her one more time that they would say one thing and when push comes to shove it doesn't go down that way. Ron Prekup, 1829 Lime Tree Drive, spoke about Glenn Althafer, who just retired as a State Trooper with the Florida Highway Patrol with 34 ~ years. He spoke about a party they had for Mr. Althafer. He thanked the people that were involved for coming out to pay congratulations to Mr. Althafer. Mike visconti, 316 pine Breeze Drive, spoke about Item 7B, regarding the renewal of the Florida Department of Transportation Highway Maintenance Contract. He spoke about wanting to remove the trucks that park on the empty lot on the west side of Cow Creek Road out by 1-95. He feels they should do something about those trucks and do something about that entranceway which is a disgrace coming into Edgewater. There was a brief discussion regarding who owns this piece of property. City Manager Grace stated he was told the property being parked on is owned by the Department of Transportation. He suggested approaching them with this and see if they can't police their own property better. Page -9- Council Regular Meeting April 6, 1998 ..... ..... Councilman Roberts stated if they are on County land, maybe County Code Enforcement could look into this. City Manager Grace agreed to look into this and see what they can do. OFFICER REPORTS City Clerk Wadsworth had nothing at this time. City Attorney Clayton informed Council two cases have been dismissed. On the case regarding Lorraine Wiley falling on a sprinkler head in Edgewater Landing, they voluntarily dismissed the City from that matter. The News Journal has dismissed one of its two counts in its lawsuit against the City based on a lack of evidence. They say they have no evidence to establish the count for a public records violation and so they are asking the judge for voluntary dismissal of that count. They have responded that we have no opposition to that dismissal of the count but will continue to hold the right to seek attorney's fees that we have incurred at the end of the matter. city Attorney Clayton welcomed all the input she received tonight and hopes the Council will be able to judge her performance as benefitting from both the criticisms and the encouragement. City Manager Grace spoke about legislative action pertaining to HB3075/SB270 regarding Police and Fire pensions. City Manager Grace requested authorization for the Mayor to send a letter to the legislative delegation opposing this bill. There was a consensus of Council for City Manager Grace to mail out a letter. City Manager Grace presented a FIND update. They are hoping to get the new application out to the EDA in the next day or two under the Mayor's signature. city Manager Grace informed Council they are still working on their report on where the City is on all of its projects. ADJOURNMENT There being no further business to discuss, Councilman Roberts made a motion to adjourn. The meeting adjourned at 8:45 p.m. Minutes submitted by: Lisa Kruckmeyer Page -10- Council Regular Meeting April 6, 1998