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09-17-1990 - Regular ---" " .. o u & CITY COUNCIL OF EDGEWATER REGULAR MEETING SEPTEMBER 17, 1990 MINUTES CALL TO ORDER Mayor Mitchum called the meeting to order at 7:00 p.m. in the Community Center. ROLL CALL Mayor David Mitchum Councilman Dan Hatfield Councilmember Gigi Bennington Councilman Russell Gold Councilman Thomas Fish Present Present Present Present Present City Attorney Jose' Alvarez, City Manager Elly Johnson, City Clerk Susan Wadsworth, and Chief Lawrence Schumaker were also present. INVOCATION, PLEDGE OF ALLEGIANCE Reverend Roger Miracle, Friendship Baptist Church, delivered the invocation. There was a pledge of allegiance to the Flag. APPROVAL OF MINUTES Workshop of AUQust 9, 1990 - Councilman Gold moved for approval. Councilmember Bennington seconded the motion. Motion CARRIED 5-0. Workshop of AUQust 15, 1990 - Councilman Hatfield moved for adoption of the August 15th minutes. Councilman Fish seconded the motion. Motion CARRIED 5-0. ReQular MeetinQ of AUQust 20, 1990 - Councilmember Bennington moved they adopt the minutes of August 20th. Councilman Gold seconded the motion. Motion CARRIED 5-0. Workshop/Special MeetinQ of AUQust 27, 1990 - Councilmember Bennington moved they adopt the minutes. Councilman Hatfield seconded the motion. Motion CARRIED 3- 1. Mayor Mitchum voted NO due to being excused from that meeting and Councilman Gold did not vote as he also was excused from that meeting. CITIZEN COMMENTS Mary Martin, 12 Woodlake Drive, Port Orange, and property owner in Edgewater, stated two years ago Council had three primary objectives: less infighting and working better together; getting the CIP off and going; and revising the old Charter and gett i ng a new one. She sa i d the on ly one that was done is 1 ess infighting. She stated the CIP has been stalled by lack of action, change of direction, etc. She reviewed the progress made by the Charter Review Committee since the first meeting was held in September of 1989. She explained she was on that Committee because she was living in Edgewater then and had planned to continue living here. She said input was requested from staff that would be affected and organizations and homeowners associations plus announce-ments were put on the back of water bills, and they took input from the Charter Review Committee meetings. She explained not all proposals were added to the revised Charter but none were disregarded, and the controversial issues, such as change of terms of office and staggered terms, were removed from the Charter and suggested they be voted on. She stated they submitted this Charter to Council in the Fall of 1989 for discussion and approval to put it on a March, 1990, ballot. She said since then revisions have been made and additional input from Council and citizens was received, one being to remove it from the March, 1990, ballot. Mayor Mitchum called time. Councilman Gold suggested she be allowed to continue. Mrs. Martin stated another promise was not kept and they waited until the last minute to hold a workshop and then only three attended. She said because of their failing to act in a timely manner, they denied the citizens a chance to vote on a revised Charter and still have the old, obsolete Charter, which they'd said was unworkable two years ago when they ran for office. Frank Roe, 2732 Juniper, stated he presented suggestions to cut the budget at the Council meeting September 10th and they said they'd already cut it $170,000 but that's not true. He sa i d a 11 he not iced that was cut was $1,600 for employees' coffee and he thinks that should stay there. He said what they do with this budget will determine if they're re-elected or not. He read an excerpt related to heading into a recession and the State money collected being short $1 million. He said Florida has one of the highest unemployment rates in the , . (.J u " , CITizEN COMMENTS (Continued) Frank Roe (Continued) nation. He stated they need a balanced budget and not by taking $336,000 out of the general fund that's been saved over the years. He suggested the following to balance the budget: Council take leadership by taking a cut from $400 to $300 a month and the Mayor cut from $600 to $400. Mayor Mitchum called time. Councilman Gold suggested he be allowed to continue. Mr. Roe continued with suggestions to balance the budget: all departments should cut 5% from their department budgets; freeze all hiring; discontinue merit raise increases for this budget because it has to be cut to the bone; no money should be allotted for expenses and travels for one year; and stop all donations, no matter what the cause. He said Council should "bite the bullet" and it will save employees' jobs for the next year when they'll really need them. Ken Millard, 238 N. Riverside Drive, stated Council acted exactly right about the Charter and they postponed action so a more adequate and complete Charter will be ready under the new regime. Frank Morris, 1814 Evergreen Drive, stated the City tore up property in front of his house by putting in a culvert and at four other houses, and it was high and dry. He said the City started it last week and it's still not done. He stated it rained today and it did nothing, it's dangerous to his children, and the mailman cannot get there. He said the City's going to put sod there and said they'll cut the grass in front of his house. He asked to see permits for 1818 and 1822 Evergreen where properties are too low. He said this costs the City about $2,000 in taxes, and he wants crushed rock in front of his house. GeorQe EwinQ, 2923 Royal Palm, stated from February 21, 1989, to August 23, 1990, they paid Dyer, Riddle two million, two hundred and twelve thousand, and so many dollars, and he asked the Mayor where the money's coming from, is it from the bond issue or where. Mayor Mitchum said it's from the BAN issue and it's for design of the water plant and design of the sewer system. Mr. Ewing asked if they paid one half million for the wellfields. Mayor Mitchum replied yes. Mr. Ewing asked if Council's aware they've paid about $3 million of the $4.7 million. He stated they'd said they'd put $4.7 million aside and earn interest and he thinks it's a big farce. He expressed concern for the amount paid to Dyer, Riddle, and the wellfields, which is the only physical thing they have. Councilman Hatfield explained part of the $2 million was for when we retained them as the City engineering firm for about one and a half years when we didn't have a City Engineer on staff and they did other than CIP. Mayor Mitchum stated part of that is design of the water plant which was done by contract approved by Council, and they don't do it for free. He pointed out the design has to meet State and DER criteria. Mr. Ewing asked if part of the $2 million coming from the water plant is to come from funds from citizens for water. Mayor Mitchum replied it's part of the CIP, it was for seed money to get the program started, and the water plant's tied in with the CIP. He explained improvements to the water plant are City-wide, not just Florida Shores will pay it, and it's paid out of the BAN, which wasn't just for sewer, and they'll be reimbursed from the respective categories. Mr. Ewing said held like to know how much of the $2.2 million is from the water plant. Mr. Johnson suggested he submit a public records request. Mr. Ewing stated a lot of the CIP is coming from Florida Shores and he hopes they won't assess Florida Shores for the water plant. Mayor Mitchum explained it's City-wide. Harry Jones, 3035 Tamarind, stated he spoke to Council at the last meeting about the Sunshine Law and asked Council to give it consideration. He read excerpts from rulings on two cases. He stated workshops are open to the public and it's the right of the public to be heard. He read an excerpt regarding resolutions or ordinances being binding if acted on at a public meeting, which means public can be present and be heard, or any action would be void. He asked Council to think about this and let them have a decision of whether they'll abide by the decisions set forth relative to the Sunshine Law or not. Mayor Mitchum stated he feels they abide by it. Mr. Jones said many times the Mayor has said there will be no citizen comments and everyone was a violation of this act. Councilman Fish agreed with the Mayor that the times they didn't allow people to comment were workshops and he doesn't feel they violated any Sunshine Law. Mr. Jones suggested they read the decisions of the court, as Council on many occasions violated the law by not hearing citizen comments. He said he agrees citizen comments need to be controlled but every time they set up an agenda and there's no place for citizen comments, they're in violation of the Sunshine Law. 2 Council Regular Meeting Minutes September 17, 1990 ", u (.) , CON~ENT AGENDA City Enqineer's recolllllendation to reject bids for Roberts Road temporary sidewalk and include construction in contract for riqht-of-way clearinq and drainaqe work: Radio Station I-100's request for Boy Scouts to use outside the front entrance of City Hall on Saturdays from Nov. 3 to Dec. 8 for aluminum can drop off for recyclinQ to benefit needy kids for the holidays: Parks & Recreation Director's recolllllendation to award bid for Veterans Park fishinq pier extension to Daytona Dock & Seawall Servi ce in amount of $12,733.48: Pub 1 i c Works Director's recolllllendation to accept the bid from V. E. Whitehurst & Sons, Inc. in amount of $35,100 for sale of chip spreader: Finance Director's request to write off uncollectible utility accounts of approximately $616.31: and Police Chief's request to enter into service aqreement with Motorola COlllllunications and Electronics, Inc. at $4,305 - Mayor Mitchum asked if Council wants to remove anything. Councilmember Bennington asked to remove A (Roberts Road sidewalk) and Councilman Fish asked to remove D (sale of chip spreader). Mayor Mitchum requested a motion to close and approve the consent agenda. Councilman Hatfield so moved. Councilman Gold seconded the motion. Motion CARRIED 5-0. City EnQineer' s recolllllendation to reject bids for Roberts Road temporary sidewalk and include construction in contract for riqht-of-way clearinq and drainaqe work: Councilmember Bennington asked for an explanation. Mr. Johnson explained because they changed the plan from temporary to permanent sidewalk and already put the bids out, this is just rejecting them as a formality and the other should be in shortly. Councilmember Bennington asked if they sent out the new spec1s. Mr. Johnson rep 1 i ed yes. Counc il member Benn i ngton moved they approve the City Manager's recommendat i on. Counc il man Hatf i e 1 d seconded the mot i on. Mot i on CARRIED 5-0. Public Works Director's recolllllendation to accept the bid from V. E. Whitehurst & Sons, Inc. in amount of $35,100 for sale of chip spreader - Councilman Fish asked how much they paid for this equipment. Mr. Johnson said it's a 1982 model. Public Works Director Carl Overstreet said they paid about $47,000 originally. Councilmember Bennington asked if it was used when they bought it. Mr. Overstreet replied yes, and they bought it before he was employed here. Councilman Hatfield asked how much it's been used. Mr. Overstreet replied there1s a total of 125 hours on the meter, but it hasn't been used in the last 2-1/2 years since he's been here. He added it has expensive belts on it and they got a good bid according to market prices. Councilman Fish moved they accept the recommendation of the Public Works Director and award the bid. Councilman Hatfield seconded the motion. Motion CARRIED 5-0. NEW BUSINESS Appointment of citizen to Capital Improvements ProQram COlllllittee - Councilman Hatfield moved to take it off the table. Councilmember Bennington seconded the motion. Motion CARRIED 5-0. Councilmember Bennington nominated John Nixon. Councilman Hatfield nominated NoraJane Gillespie. Mayor Mitchum pointed out she's running for office. Councilmen Gold and Fish concurred with nomination of John Nixon. Roll call on John Nixon CARRIED 4-1. Councilman Hatfield voted NO. Harry Jones re: Capital Improvements ProQram - Mr. Jones stated the CIP should go forward and be #1 on the City's agenda. He complimented Mr. Livengood on his comments on the bond where he stated the bond issue, if they go into it, will run for its total length and there's no provision made for early payoff. He said Mr. Livengood also commented on what Councilmember Bennington brought up, that if they have a rough year and don't have money to pay it, there'll be an assessment made and it will affect everyone in the City. He said any money received will be used for that project only and any money left over would have to be spent on that project. He said he was talking about the $15 million bond issue and asked an engineer from Dyer, Riddle how much of the $15 million the City would get and he replied all of it, but that's a misstatement. He stated they were told by Mr. Livengood the bond issue would probably sell for 75-80% of face value and bonds are never sold for face value. He said the reduction is watering the bonds but he calls it milking the people, and if they sell it for 80%, they'll get $12 million and out of that will come bond broker fees, attorney fees, Financial Advisor fees, and they'll end up with $10 million at best. He stated they're recommending increases in services so they could pay it and he understood it would be paid over a 5-year period with payments of 3 Council Regular Meeting Minutes September 17, 1990 ~ u u NEW'BUSINESS (Continued) Harry Jones re: Capital Improvements Proaram (Continued) $3,658,360.40 per year with a final cost in 5 years of $18,291,802, which is what they'd pay for $10 million. He recommended to Council that he sees there will be some increases in rates but if they're making payments in excess of $3 million a year, wouldn't it be advisable to put in those increases, but to save the money and put it in when they have enough money on hand to start it and do the work themselves. He stated they'll have to contract some and would pay the contractor for what he does, but if Dyer, Riddle takes it over, they'll have to also contract for that work and the City will have to pay the contractor's bill plus Dyer, Riddle's profit. He said this isn't the only outlet but maybe they could get away with it and do it to the City's advantage. He noted the City would have to hire the labor force but there are a lot of unemployed people in the City and they could use them. He stated they should use their money to do their project to improve their City and help those in the City who need a job and it would be a lot less than if they go out for a bond issue. Frank J. Roe re: Florida Shores Sewer System and other items - Mr. Roe stated Mr. Jones forgot the money they received on the bond issue, and they have to pay $4.7 on the first bond they took out for the money they borrowed from the bank. He stated there is no money budgeted for interest on that $4.7 million. Mr. Johnson explained the money's budgeted when the Council adopts it. Mr. Roe asked if it's $750,000 more. Mr. Johnson explained the rate would be about $300,000 for next year. Mr. Roe said that will make it $5 million. Mr. Roe said he's been recycling for 5 years and has had no trouble at all. He said they'll save on the landfill but Council didn't say they'll give it back to them and will charge $1.60 per month and keep the less money they pay for the landfill. He stated the senior citizens deserve a permit if they don't want to recycle, and want to do it voluntarily. He suggested they go out for bid because it won't be the same price. Mr. Roe stated the City's in a serious state and he's made suggestions to Council to cut the budget. He said two Councilmen aren't running for re-election and he hopes they leave the City in a better financial shape than when they got here, and he has no malice against the three running and won't say anything against them. He said he hopes they'd clear up the budget business and not have it cost them $336,000 from the general fund. NoraJane Gillespie re: sidewalk - NoraJane Gillespie, 1719 Willow Oak, asked support of a joint use sidewalk of about three-tenths mile of Old County Road from Park to Ocean with a forty foot right of way by Coronado Paint. She said the East side is preferable, which would be four foot wide by 1,586 in length at an estimate of $9.00 per foot for a total of $14,274, less $1,950 approxi- mately the Big Wheels has raised they'd like to put towards it. She asked Council to consider the need because they have 37 classrooms and nearly 800 children at Edgewater Public School. She asked they also consider: two school advance signs, reflective, with a children's emblem, at a cost of $12.50 each from the County, plus pole; and two bike route signs, reflective, $7.50 each, plus pole, also from the County; a speed zone reduction sign for the period 7:15 AM to 8:15 AM and 1:30 PM to 2:30 PM. She stated they applied to the Volusia County Sheriff's Department for an additional crossing guard at Park Avenue and Old County Road and have consulted: Mr. Ed Higgins, Volusia County Traffic; Richard Wiskerman, Florida DOT; David W. Dill, Operations Manager of Coronado Paint; Gates Castle, City Engineer; Carl Overstreet, City Street/Public Works and Stormwater Operations; and Mrs.Kelley, Principal at Edgewater Public School. Councilman Hatfield requested this be brought up on the next agenda. Councilman Fish agreed. Councilman Hatfield requested a copy of Mrs. Gillespie's information. Perry R. Barrett re: proposed sewer impact fee raise - Perry Barrett, Ponderosa Homes, 602 Indian River Boulevard, stated he was going to speak on proposed impact fee raises and appreciates impact fees weren't raised and were rejected. He said he and other builders are not 100% opposed to impact fees but they'd like to see what they get for their money when they raise impact fees. 4 Council Regular Meeting Minutes September 17, 1990 r " u u NEW'BUSINESS (Continued) Attorney Robert Merrill's reauest for review of SP-9005. Marwin. Inc. - Restaurant Site Plan (U.S. 1 and Shanari-La Drive) - Mr. C. Allen Watts, Cobb Cole & Bell, represented Marwin, Inc., the applicant for a restaurant site plan, He said Mr. Merrill is his associate who filed the letter requesting Council review of the Planning Board's action taken in the last week of August. He asked the City Attorney what format theylll follow because City Code provides in Section 715.02 that the Planning Agency shall, subject to review of the City Council. approve site plans. He said they got a vote of 3-3 and had a staff recommendation that it met all requirements of the City Code and before they can seek further judicial review, it appears they're required to come to the City Counc il, but he I s not sure if it I s the purpose of Counc il to take further evidence or review the record made before the Planning Board. City Attorney Alvarez stated the material before Council is item 5.F. and consists of: the letter from Mr. Wattsl office requesting the review by Council of the LDRA decision; minutes of the meeting of August 29, 1990; minutes of the meeting of August 9, 1990; copies of documents introduced by Mr. Watts - a deed of easement properly executed, Exhibit A with a deed, legal description of the property; title services opinion of ownership and encumbrances, an opinion of the title company of who owns a particular piece of property and if there any legal encumbrances; warranty deed showing ownership; minutes of the meeting of July 12, 1990; letter from the City Engineer to the Planning Director dated June 5, 1990; letter from DeLoach and Peterson, June 14, 1990; memo to Mr. Frank Ferguson from former City Manager William Powers; memo to Mr. Frank Ferguson from City Manager Elly Johnson; memo to Mr. Karet from City Engineer dated May 15, 1990; department head check list for site plan review; memo of May 14, 1990, from Michael Hayes, Life Safety Inspector; department head check list again; memo to department heads from P & Z dated May 8, 1990; memo to Mr. Karet from Mr. Wadsworth dated May 11, 1990; Planning and Zoning Department comments on the proposed restaurant, undated; and application for a site plan review stamped April 30, 1990. He said the format is not certiorari, it's review of the records for any obvious errors, it will not be a trial. Mr. Watts asked if there will be no new testimony required before Council from the applicant or the audience or anyone else. City Attorney Alvarez agreed that1s correct. Mr. Watts stated he feels he's legally confined to bringing a summary or argument to their attention, just those matters already in the record, because Mr. Alvarez is advising them he doesn't have the right to add any additional material to the record. He provided copies of two cases, by way of legal argument. Mr. Watts stated Mr. Alvarez has summarized the procedural route this application took before it arrived here and he became involved in it at the July meeting of the Planning Board, at which it appeared that most of the substantive comments had been addressed, there were two or three minor revisions that had to be made to the site plan, so revisions they'd agreed to verbally were on the final site plan prior to its approval. He said there was one remaining question from the legal standpoint as to whether Mr. Tomlinson and Marwin had the legal right to make use of the Shangri La road into the restaurant as their secondary access as had been shown on the plan, and up to that point no one had raised an objection. He said they discussed the matter thoroughly before the Planning Board and undertook to bring back to the Planning Board, as soon as they could obtain it, a certificate from a title insurance company attesting to who owned the right to give access to the road since the City at that point was disclaiming any ownership interest in it as a public road. He said they also undertook to bring back an easement from that person that the title company said owned it if the City didn't. He said the certificate from the title insurance company states the four individuals that held interest in that road subject to the easement of the City arising by dedication of the plat, and they brought in the easement duly executed by those people in favor of Marwin allowing them to make use of that entrance road. He said they felt all requirements had been met at that point and the matter was continued on August 9th because Mr. Alvarez was out of the country, and was reviewed the end of August when there were comments made for the first time by residents in Shangri-La about concerns other than legal ownership, and the Planning Board on motion to approve the site plan as being in full compliance tied on 3-3 vote. Mr. Watts stated professional staff of the City has recommended approval and stated they met all requirements of the ordinance and that fact cannot change. He said he thinks they have only one alternative and that1s to break the tie with 5 Council Regular Meeting Minutes September 17, 1990 u u NEW 'BUSINESS (Continued) Attornev Robert Merrill1s request for review of SP-9005. Marwin. Inc. - Restaurant Site Plan (U.S. 1 and Shanari-La Drive) (Continued) the Planning Board and approve this site plan. He said he1s given Council copies of the two decisions and he hopes the City Attorney will give his interpretation on the two decisions. He said the primary decision is a case out of the Eleventh Circuit Court of Appeals in Atlanta, the court which governs the State of Florida. He briefly reviewed the case, with a popular uprising against approval of a plat and the County Commission in that case voted not to approve it, and the court held that in light of compliance with requirements of all regulations, the commission had an administrative duty to approve the plat and their refusal to do so was violation of due process of law under the Fourteenth Amendment to the U. S. Constitution, and the court ruled it was proper to bring a civil rights action against the County for their denial. He said the other case is from Orange County decided by the State Court of Appeals regarding the City of Apopka and a special exception for an airport in Orange County. He reviewed circum- stances and the outcome that held the large number of objections from members of a neighborhood who expressed their lay opinion as to whether it was or was not a good thing to do, but who were not sworn, who were not cross examined, the court held that isn't proper evidence upon which to base a denial of the special exception. He stated the court held that objections of a large number of neighborhood residents are not a sound basis for denial of a permit and the court held the opinions of neighboring property owners are not competent. Mr. Watts said held like Council to inquire of the City Attorney, whether having been informed about the relevant law on the matter before them tonight, what each of their individual positions would be if they fail to follow the law. He stated he understands the law that if it's been made known to them, and he's tried to take some pains to make it known to them, and they choose not to follow it, then if there's litigation that arises as a result of it, they wouldn't be covered by any insurance the City has, and would be individually liable, and taxpayers wouldn't reimburse for this defense or any damages that would be awarded against them in their individual capacity. He stated this isn't a threat and they have tried to work through this and comply scrupulously with everything the City has asked, and they did that with the Planning Board. He said if they had gotten the tie broken the night they were there, they wouldn't have to be here and because the Board didn't carry out what it should have done when they complied with all requirements of law, they should have approved the site plan, and now Council is in a difficult position of ruling in a matter they1re not ordinarily called upon to rule. He said they'll have to rely on their own attorney, and not what he tells them, but there are risks to the City if they don't follow the law. He said they feel they're entitled to approval of the site plan and were entitled to it in August, and would like their favorable decision tonight. He explained he can only respond to information they have in front of them in the record from the Planning Board. Councilman Gold asked if there's a possibility the builder has considered adding another single lane entrance road next to Shangri-La to keep traffic going into the building and off the Shangri-La road altogether. Mr. Watts replied the site plan doesn't show a turn lane coming in from U.S. 1 and they did offer to remove the median from the point where the driveway enters Shangri-La Drive out to U.S. 1 so they could construct an additional left turn storage lane for traffic that would go north on U.S. 1. He said that offer was rejected by the Homeowners Association, speaking through Mr. Ferguson, and then withdrawn by Mr. Tomlinson so that option isn't before Council and wasn1t before the Planning Board when they voted. He added they have to vote on the plan before them and they can't tinker with it at this hearing, all they can deal with is the record from the Planning Board. City Attorney Alvarez said if he made an option, and he wants to restate, it was made as a part of the record below. Mr. Watts stated it was made a part of the record below and withdrawn because Mr. Ferguson indicated it wasn't satisfactory to the homeowners. Councilman Gold asked if he'll reconsider. Mr. Watts said they wouldn't mind restoring it to the plan as long as there's no procedural objection that would delay them in any way. He said if the action of the Planning Board is reversed on that condition, which is ironic that a 3-3 tie is a denial under Roberts Rules of Order, but if that would make the difference they'd do it if they don't have any further delay. 6 Council Regular Meeting Minutes September 17, 1990 u u NEW'BUSINESS (Continued) Attorney Robert Merrill's request for review of SP-9005, Marwin, Inc. - Restaurant Site Plan (U.S. 1 and Shanqri-La Drive) (Continued) Councilman Fish asked if there was at any time in the plan a separate ingress or egress without using Shangri-La onto U.S. 1. Mr. Watts replied no, and the Planner recommended to the Planning Board, which was the only professional recommendation they had except for his engineers, that if this project was limited to one entrance, the one entrance should be on Shangri-La. He said if they want to make it safer than it is, they should take the entrance off U.S. 1 and don't take the entrance off Shangri-La, but they had DOT approval for entrance on U.S. 1. Councilman Hatfie ld requested they hear from Attorney Sid Peterson, the Attorney, for Mr. Ferguson. Mayor Mitchum asked City Attorney Alvarez if it's correct that it's a review, it's not a request for an appeal and not a public hearing. City Attorney Alvarez said that's correct. Mayor Mitchum asked if it's correct that there can be no appeal of a decision tonight. City Attorney Alvarez asked if he means appeal to the courts. Mayor Mitchum said usually a request is made of an appeal of a decision by LDRA, and the memo states the site plan review is subject to review of the City Council. City Attorney Alvarez stated Council, based on the record that was developed in front of the Board, must decide whether they wish to uphold or reverse or modify that decision, and if Council finds the Board acted unreasonably, capriciously, in violation of the evidence before it, or in clear violation of the law, which he'll advise them on later. Mayor Mitchum asked if that's in the review or appeal process. City Attorney Alvarez replied it's for the purpose of Council overseeing the actions and giving applicants a second chance at it, it's in the nature of overseeing it, but an appeal means a new trial will take place at this level with new evidence, which would then be unfair and improper because the Board didn't have that evidence. He said in a sense they're appealing to Council to review what the Board did and reverse it, and the other side will appeal and say review what the Board did and uphold it. He said they'll hear the argument from both sides and have the record of what happened in front of them. Mr. Watts explained they used the word review in their request because that's the word in the ordinance. Mr. Sid Peterson, Law firm of DeLoach and Peterson, New Smyrna Beach, represented Shangri-La Homeowners Association. Mr. Peterson stated there's a consensus of opinion, that was fortified by several opinions of City Managers, present and past, and he believes the City Attorney, that Shangri-La Drive was a private road and to that extent the Shangri-La Homeowners Association on several occasions requested and received permits and made certain improvements to Shangri-La Drive such as street lights, sprinklers, stop signs, entrance signs, etc.. He stated that for four and a half years at least the people of Shangri-La Homeowners Association, relying on the advice and information of the City, spent $17,000 on the entrance way to Shangri-La Drive. He said they learned of a site plan for a restaurant. He stated they have no objection to the restaurant, and their only objection is for the second access on Shangri-La Drive and that objection stems from the belief and thoughts these people have had for the last five years. He said in preparing for the Planning Board meeting, after research they all concurred the City misled them, that this is a public road. He said they came to a conclusion and he agrees with his opinion that it's a public street. He said they have other objections from a safety standpoint because if it's a private road, nobody can use it but them. He said safety was the issue at the Planning Board meeting of using Shangri-La Drive as another ingress and egress to the restaurant site. He stated Mr. Watts wants them to believe that by denying a person two accesses to his property he's Constitutionally deprived of his civil rights under the Federal and Florida State Constitution and somehow you are liable and could be personally liable if you don't go along with him. He said there's a basic rule of law under 1983 that the City government cannot be held liable for deprivation of civil rights unless the government's action impacts on the value of the land so as to destroy all economically viable use of the property, and they're not taking the use of the property away, but they sa i d one access on U. S. 1 is enough, and they don I t need another access on Shangri-La Drive and interfere with the use of 100 people in Shangri-La. He said their evidence of what the people said about safety was just as competent as what the developer presented. He said neither presented a traffic engineer and common sense should prevail that if you're going to bring that many people to an intersection, there will be a hazard, and 95% of the businesses have one access. 7 Council Regular Meeting Minutes September 17, 1990 (,.) u NEW 'BUSINESS (Continued) Attorney Robert Merrill1s request for review of SP-9005, Marwin, Inc. - Restaurant Site Plan (U.S. 1 and ShanQri-La Drive) (Continued) Mr. Peterson said he thinks the Planning Board correctly made its decision. He said they maintain this is a public road and the City has to recognize it, the improvements in Shangri-La Village are public along with the water management- wastewater management system, drainage system and sewer system, and Edgewater is going to assume responsibility for those. He said if the City wants to make Shangri-La Drive immediately open to the public and accessible to the developer then the City immediately needs to put these people in the position they were in before they were misled for five years and spent $17,000 on their driveway. Councilman Gold stated the main problem is one ingress and one egress. He asked if they want two exits out of the business. Mr. Peterson replied they want two entrances and two exits. Councilman Gold pointed out Burger King has one in and one out. Mayor Mitchum clarified it's one in and out and one out. Mr. Peterson said their recommendation to compromise was to widen the ingress and egress onto u.S. 1 and close access to Shangri-La Drive which would give additional parking spaces and widen it onto u.S. 1 and make it a safer entrance and exit from there. Mr. Watts stated Mr. Peterson erred regarding the Federal question he raised about being liable in Federal action only if there's an absolute taking of all value and that's true if it's taking property that requires public compensation, but this doesn't deal with taking of value of the property, but deals with due process of law. He said in this case due process means they announce the rules in the manuals and procedures and Code of Ordinances and anyone that complies is entitled to get a permit, and you don't change in the middle. He briefly reviewed items they'd complied with. He stated he and Mr. Peterson and Mr. Alvarez all agreed that it's a public thoroughfare and it may not be resolved about who has the obligation to maintain it, but the public has the right to use it, which includes Mr. Tomlinson. He said the evidence in their packet regarding the single access point is the testimony of Mr. Karet that says if it were limited to a single point of access, it should be on Shangri-La Drive. Copies of the plan were distributed for Council's review. City Attorney Alvarez asked the record reflect all Council members now have copies of the site plan and plat. Mr. Watts said the entrance on u.S. 1 is as far north and separated by the most distance possible from Shangri-La Drive and it's at the recommendation of DOT. He said they don't like to allow entrances closer than a couple hundred feet apart for safety reasons and they try to get as much separation as they can between driveways and intersecting streets. He said that's why the one entrance point to U.S. 1 is at the far northern edge of the project. He said when someone comes out of the restaurant and wants to go north, if they aren1t allowed to come out on Shangri-La Drive, they'll come out on U.S. 1 and must cross two lanes of traffic and do a U-turn at the median cut at Shangri-La Drive, which is illegal, to go back north on U.S. 1. He said this is an unsafe condition, and he understands U-turns are illegal at those medians in Edgewater and will stand corrected. He said the staff and his opinion is that it presents a less safe condition than the plan they offered. He said they were asked by neighbors to consider an alternative plan not to allow anybody to come out and do what he just said and if the evidence in that plan is less safe than the applicant's plan, it would be difficult for them to reject the applicant's plan in preference for one that the ev i dence says is 1 ess safe. He sa i d they not on ly deny th i s applicant his site plan approval but it puts them in a very exposed position the first time there1s an accident with someone making a U-turn. He stated it will be shown on the records they had a chance to avoid that situation but they chose not to because there were neighbors who objected to having the drive come out on their side. He said with any other corner lot in the City where they have a median cut already in existence, and you come out on Shangri-La and can go straight across at a median cut rather than cross two lanes of traffic and make a U-turn, at any other place a professional would show that, and if he didn't show it, staff would require it. He stated in this case it proved to be politically unpopular so it was questioned. He said they have to address where the safety lies and the only processional advice they have is they have the safer plan. He pointed out half the Planning Board agreed with them and it's not a case where they have to overturn the majority of the Planning Board, because if Counci 1 votes for them, they'll have as much support on the Board as the neighbors had in the hearing below. 8 Council Regular Meeting Minutes September 17, 1990 " u u NEW'BUSINESS (Continued) Attorney Robert Merrill's request for review of SP-9005. Marwin. Inc. - Restaurant Site Plan (U.S. 1 and ShanQri-La Drive) (Continued) Councilman Hatfield asked Mr. Karet to comment on the safety factor. Mr. Mark Karet, Director of Planning and Zoning, restated his comment made at the Planning and Zoning Board that whenever they have a use and they increase traffic driving vehicles are inherently unsafe and both exits will increase the danger to people traveling those roads and there's no question of that. He said at the present arrangement of the plan presented by the developer presents less conflicting traffic movement than the one ingress and egress on U.S. 1. Councilman Hatfield asked if it's taking traffic and running it down and making a U-turn. Mr. Karet explained if all they have is the entrance to U.S. 1, if you Ire coming from the South and you cannot enter through Shangri-La Drive, you have to go past the site and make a U-turn, and if you have to go north, you have to make a conflicting turn as well. He said if you have two entrances, the distribution of trips is split between them and will have less conflicting traffic. Councilman Hatfield asked the City Attorney who owns the street based on the upkeep by the Property Owners Association, and by the assumption of letters in the file. City Attorney Alvarez replied that issue was settled, all parties agreed it I S a pub 1 i c thoroughfare and open to the pub 1 i c, and who owns the asphalt or dirt underneath are technical questions that have no practical bearing on this issue. He added this is not an issue. City Attorney Alvarez stated this is the first time tonight he heard the arguments that the decision of the LDRA was based on public opposition and public outcry. He explained this is nothing new to the City from a legal point of view. He reviewed a case of 6 or 7 years ago regarding a decision made by the then Board of Adjustments based solely on unpopularity of the application. He said a decision at the Circuit Court level, which is recognized as a well established principle, is that because a particular application is unpopular, that alone is not a sufficient legal basis to reject or approve it. He said he doesn't feel that's been an issue and it shouldn1t be introduced at this last step, and if records showed the LDRA was solely guided by popularity of the application, held have so advised the Board at that time. He pointed out the Board wrestled at two meetings and took all possible evidence on the two pending issues, one was ownership, which was settled, and the second was the traffic safety issue, and that was the issue that split the Board and that determined the decision. He said if they can introduce into the records statements like political uproar and public objections, those statements cannot go unchallenged because if they1re introduced into this record it will be laying a legal base for a reversal at Circuit Court level. He said they all have a duty to their respective client and must do what they can legally and ethically to protect their clients' interests. He said they should not introduce foreign matters and not engage in threats that you could be sued. He said they've been sued many times and the decisions should be based on what they feel and what they can see from the record is in the best interest of the public health and safety of the citizens of Edgewater. He stated that's the criteria that's used by all legislative municipal or county boards or commissions in making a decision. He stated they aren't there as a tie breaker, there is a motion to approve from the last page of the minutes of August 29th and the motion failed 3 to 3 and by the rules applicable, the motion to approve did not pass. He said they must now determine if they wish to reverse, uphold, or modify in any way the decision of the LDRA. Councilmember Bennington stated in reviewing all these papers and the site plan, she moved the Council uphold the decision of the LDRA Board. Councilman Fish seconded the motion. City Attorney Alvarez suggested to clarify the record, the motion is that SP 9005 will not be approved. Councilmember Bennington clarified SP 9005 will not be approved on the basis of evidence they have here and the documentation. Motion CARRIED 3-2. Mayor Mitchum and Councilman Hatfield voted NO. Mayor Mitchum stated the decision of the LDRA Board was upheld, and the site plan has been denied, but that doesn't mean they can't resubmit. Mr. Watts stated the records reflect they met all requ irements already. Councilman Hatfield requested a recess. Mayor Mitchum called a recess at 8:35 p.m. and called the meeting back to order at 8:47 p.m. 9 Council Regular Meeting Minutes September 17, 1990 w u ORDINANCES, PUBLIC HEARINGS, AND RESOLUTIONS First Readina: Ord. 90-0-36 Re: Creatina Art. IX of Chapter 19, environmental standards for potable water well field protection to comply with Volusia County requirements Mayor Mitchum read the ordinance. ORD. 90-0-36 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING CHAPTER 19, UTILITIES AND SERVICES, BY CREATING ARTICLE IX, ENVIRONMENTAL STANDARDS FOR POTABLE WATER WELL FIELD PROTECTION: BY PROVIDING FOR DEFINITIONS; BY PROVIDING FOR LEGISLATIVE INTENT AND PURPOSE; BY PROVIDING FOR SCOPE; BY PROVIDING FOR DESIGNATION OF ENFORCEMENT OFFICIAL AND HIS POWERS AND DUTIES; BY PROVIDING FOR ESTABLISHMENT OF WELL FIELD PROTECTION ZONES; BY PROVIDING FOR VARIANCES; BY PROVIDING FOR HAZARDOUS SUBSTANCES REGULATED; BY PROV I DING FOR WELL FIELD PROTECTI ON ZONE PERMITS; BY PROVIDING FOR CONTAINMENT STANDARDS; BY PROVIDING FOR HAZARDOUS SUBSTANCE INSPECTION PROGRAM TO COMPLY WITH FEDERAL LAW; BY PROVIDING FOR VIOLATIONS AND PENALTIES; BY PROVIDING FOR STOP WORK ORDERS; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. Councilman Gold moved for approval of Ordinance 90-0-36. Councilman Hatfield seconded the motion. Motion CARRIED 5-0. Ord. 90-0-37 Amendina Chapter 19, Sec. 19-63, establishin" a $1.60 per month fee for weekly curbside collection service for paper, Qlass and aluminum - Councilman Hatfield asked if they should continue with this since they voted the bid down. Councilmember Bennington said the amount was left in the budget and they were told to go out for bid. Councilman Hatfield asked how they'll know itls the exact figure. Mr. Johnson replied he can1t guarantee what bids they'll get but the going rate is $1.50 to $1.54 of the cities that already bid it. Councilman Hatf i e 1 d asked if they need to pass th i s even if they don I t have the other passed. Mr. Johnson rep 1 i ed they have to do the program whether wi th the contract or by themselves. Mayor Mitchum read the ordinance. ORD. 90-0-37 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING CHAPTER 19, "UTILITIES AND SERVICES", OF THE CODE OF ORDINANCES OF THE CITY OF EDGEWATER, FLORIDA, BY ESTABLISHING A CITYWIDE RESIDENTIAL RECYCLING FEE OF ONE DOLLAR AND SIXTY CENTS ($1.60) PER MONTH; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. Councilman Hatfield moved for adoption of Ordinance 90-0-37. Councilmember Bennington seconded for discussion. She recalled at last Friday's meeting she brought up the exemption the County has for recycling and she'd like to include it in the ordinance as number 7, adding "unless resident has signed an exemption statement", if that1s the correct legal term. Mr. Johnson said they're waiting for the outcome of the County on how they1re going to handle the program and they're also looking at raising tipping fees and reimbursing from tipping fees. He suggested City Attorney Alvarez look at it between now and second reading and they could look at it if it has to be changed for exemptions. Councilman Hatfield asked if these fees would be the same if it1s voluntary, or if it would be $3.00. Mr. Johnson replied it's based on the number of garbage customers and if the City does it, they have to hire personnel and it will be based on number of personnel they hire and equipment. He added other cities are waiting to see what the County will do, and Daytona Beach charges a flat rate whether you recyc 1 e or not. City Attorney Alvarez stated if the majority of Council directs, helll make the change. Councilman Fish said he has no problem with it. Mayor Mitchum asked how they'd handle it. Councilmember Bennington suggested it could be the same way they charge those that put out more than 3 cans, but she doesn't feel people who are recycling and use limited amounts of garbage and trash now should pay extra and they're helping by recycling. Councilman Gold agreed with her, noting if the contract's based on number of households, they probably won't keep it at $1.60 and it will go to $2.00, the same as the County. Councilmember Bennington asked why they don1t include businesses because they have it. Councilman Hatfield asked if they can use the ECU formula. Mr. Johnson replied most cities aren1t going to commercial because their operations are long term with a private carrier such as Tomoka or IWS. Councilmember Bennington pointed out Guava has a lot. Mayor Mitchum said the City picked up his business when it was on Hibiscus. Mayor Mitchum stated they need to make that adjustment and in the instance when they have IWS or someone else, they'd not charge it. Councilman Hatfield said $1.60 won't cover it if they're cutting some of the City out. He asked if when they put it out for bid they should say it may not be 100% participation from the City. Councilmember Bennington pointed out that a lot of businesses have City pick up and they could include businesses to offset the number of exemptions theylll have. Mayor Mitchum asked how many commercial accounts they have. Finance Director Fred Munoz replied about 300. 10 Council Regular Meeting Minutes September 17, 1990 w w ORDINANCES. PUBLIC HEARINGS. AND RESOLUTIONS (Continued) First Readinq: Ord. 90-0-37 Amending Chapter 19. Sec. 19-63. establishinq a $1.60 per month fee for weekly curbside collection service for paper. glass and aluminum (Continued) City Attorney Alvarez said in the Code they now have charges for the following classifications: residence, multiple dwelling, business or commercial, profess- ional, trailer park, and equipment reserve fund, and they could instead of doing it the way proposed, just increase those existing fees by $1.60 each. Mr. Johnson said it could be worded as a Citywide recycling fee and all people who get utility bills would pay recycling fees. He added the problem with exemptions is, are they actually recycling, most will do it, but some won It. City Attorney Alvarez explained exemptions have to be a different section altogether. Public Works Director Carl Overstreet stated under Senate Bill 1192 he has to keep an exact account of what's spent on recycling as the grant requirement and it has to be kept separate. City Attorney Alvarez stated Council should act by motion as to whether they wish to grant exemptions, and if so, it should be referred back to administration for an evaluation of how it will be enforced and practical aspects before he writes an ordinance that can I t be enforced. Counci lman Hatfield withdrew his motion. Councilmember Bennington withdrew her second. Councilmember Bennington moved they instruct the City Attorney to research and rewrite this ordinance 90-0-37 to include exemptions for people that already are, or will, recycle. City Attorney Alvarez said the $1.60 per month charge wouldn't be applicable to those businesses or residences which voluntarily engage in a recycling program. Councilmember Bennington added and theylll sign a statement to that affect, and the ordinance should include businesses as well as residences. Mayor Mitchum stated they're creating an enforcement nightmare. Councilman Hatfield asked if the County does this under Home Rule Charter, does this come under ours. City Attorney Alvarez said the only way the County can adopt an ordinance that has enforceability within the City, pursuant to the County Charter that was recently voted by County voters, is for minimum standards for protection of environment. He added they adopted ordinances with minimum standards on tree protection and wetlands protection and those standards will be enforced within the City whether or not we adopt an ordinance, and we cannot adopt an ordinance in conflict. He referred to an instance where possibly they could find recycling is a Countywide matter. Councilman Hatfield pointed out they're all dumping into the County landfill, which is theirs, and that's an environmentally sensitive dumping site. Councilman Hatfield seconded the motion to look at it. City Attorney Alvarez suggested this be sent back to administration to determine the enforceability aspect of it and check with the County. Motion CARRIED 3-2. Mayor Mitchum and Councilman Gold voted NO. Res. 90-R-47 Appointing one member to Industrial Development Board due to resignation of Galen McClain - Councilmember Bennington moved to take it off the table. Councilman Fish seconded the motion. Motion CARRIED 5-0. Councilman Hatfield said Mr. McClain resigned to run for County Council and held like to ask him to reconsider now. Mr. McClain, from the audience, indicated yes. Councilman Hatfield moved to reject Mr. McClain's resignation and allow him to stay on the board. Councilman Gold seconded the motion. Motion CARRIED 5-0. Councilmember Bennington stated she'd contacted two applicants and both are very capable and would be an asset to the City. Councilman Hatfield stated Mr. McClain has done a wonderful job and is an excellent Board member. Res. 90-R-50 Supportinq Constitutional Amendment No.3 on November. 1990. ballot limiting unfunded State mandates on cities and counties - Mayor Mitchum read the resolution. RES. 90-R-50 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, URGING FLORIDA CITIZENS TO SUPPORT THE CONSTITUTIONAL AMENDMENT #3 ON THE NOVEMBER 1990 BALLOT LIMITING UNFUNDED STATE MANDATES ON CITIES AND COUNTIES; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. Councilman Hatfield stated he wished they could have done this earlier because it's very important, and moved for approval. Councilman Fish seconded the motion. Motion CARRIED 5-0. Res. 90-R-52 Declaring candidates for primary election to be held October 2. 1990 - Mayor Mitchum read the resolution with names of candidates. RES. 90-R- 52 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, DECLARING THE CANDIDATES FOR A PRIMARY ELECTION FOR MAYOR, AND COUNCIL SEAT FOR ZONE 1 AND ZONE 3, I N THE CITY OF EDGEWA TER, FLOR I DA, AND PROV I DING FOR 11 Council Regular Meeting Minutes September 17, 1990 " ", <.J u ORDI~ANCES, PUBLIC HEARINGS, AND RESOLUTIONS (Continued) First Reading: Res. 90-R-52 Declaring candidates for primary election to be held October 2, 1990 (Continued) APPOINTMENT BY THE SUPERVISOR OF ELECTIONS OF VOLUSIA COUNTY, FLORIDA, OF ELECTION WORKERS FOR THE PRIMARY ELECTION TO BE HELD IN THE CITY OF EDGEWATER ON OCTOBER 2, 1990; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. Candidates are: Mayor - Earl D. Baugh, Gigi Bennington, Harry G. Jones, Frank J. Roe, and Tanya B. Wessler; Council Zone 1 - John C. Gross, Kirk E. Jones, and Owen K. Millard; Council Zone 3 - NoraJane Gillespie, Russell A. Gold, and John T. Wilbur. Councilmember Bennington moved to adopt 90-R-52. Councilman Gold seconded the motion. Motion CARRIED 5-0. Res. 90-R-53 Appointing one member to Land Development & Regulatory Agency due to resignation of Don Bennington - City Clerk Wadsworth stated she received two telephone calls from applicants, Mr. Mehl wants to withdraw because he doesn't think he's qualified, and Louise Martin asked to be removed from the list until after the election. Councilmember Bennington nominated Donald Masso. Mayor Mitchum nominated Bill Rossiter. Roll call on Donald Masso CARRIED 3-2. Mayor Mitchum and Councilman Gold voted NO. Roll call on Bill Rossiter DID NOT CARRY 2-3. Councilman Hatfield, Councilmember Bennington, and Councilman Fish voted NO. Mayor Mitchum read the resolution, inserting the name of Donald A. Masso for an unexpired three year term to end March 21, 1992. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, APPOINTING ONE MEMBER TO THE LAND DEVELOPMENT AND REGULATORY AGENCY OF THE CITY OF EDGEWATER, FLORIDA; PROVIDING FOR A TERM OF OFFICE; PROVIDING FOR RIGHTS, PRIVILEGES AND RESPONSIBILITIES; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. Councilman Gold moved for approval of Resolution 90-R-53. Councilmember Bennington seconded the motion. Motion CARRIED 5-0. Res. 90-R-54 Appointing two members to the Board of Trustees of the Firemens Pension Trust Fund - Councilman Gold nominated Ben Wagner. Councilmember Bennington nominated Robert J. Morin. Mayor Mitchum closed the nominations. Roll call on Ben Wagner CARRIED 5-0. Roll call on Robert J. Morin CARRIED 5-0. Councilman Hatfield asked if they have to approve the Fire Department appoint- ments. Mayor Mitchum replied itls just these two. He read the Resolution, inserting the names of Ben Wagner and Robert J. Morin for two year terms to end September 17, 1992. RES. 90-R-54 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, APPOINTING TWO MEMBERS TO THE BOARD OF TRUSTEES OF THE CITY OF EDGEWATER, FLORIDA, FIREMENS PENSION TRUST FUND; PROVIDING FOR POWERS, DUTIES, AND RESPONSIBILITIES; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. Councilman Gold moved for approval. Councilmember Bennington seconded the motion. Motion CARRIED 5-0. Mayor Mitchum suggested a motion to go from regular meeting to public hearing. Councilman Fish so moved. Councilmember Bennington seconded.Motion CARRIED 5-0. Second Reading:(Public Hearing) Ord. 90-0-32 Amending Chapter 13, Personnel, re: Merit Board recommendations shall gO to City Manager and City Council - Mayor Mitchum read the Ordinance. ORD. 90-0-32 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING CHAPTER 13, PERSONNEL, SECTION 13-22 (c),"DUTIES AND FUNCTIONS OF THE MERIT BOARD" OF THE CODE OF ORDINANCES OF THE CITY OF EDGEWATER, FLORIDA, BY PROVIDING FOR RECOMMENDATIONS OF THE MERIT BOARD TO GO TO THE CITY MANAGER AND CITY COUNCIL; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PRO- VIDING FOR AN EFFECTIVE DATE. He requested audience comments. There were none. Ord. 90-0-33 Amending Chapter 5, Animals & Fowl, as recommended bv Police Chief and Animal Control Officer - Mayor Mitchum read this ordinance. ORD. 90-0-33 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AMENDING CHAPTER 5, ANIMALS AND FOWL, OF THE CODE OF ORDINANCES OF THE CITY OF EDGEWATER, FLORIDA, BY CHANGING THE NAME OF NEW SMYRNA BEACH-EDGEWATER HUMANE SOCIETY TO SOUTHEAST VOLUSIA HUMANE SOCIETY; BY ADOPTING APPLICABLE STATE LAWS, INCLUDING ALL THOSE CONTAINED IN THE FLORIDA STATE LAWS RELATING TO ANIMALS PUBLISHED BY THE FLORIDA FEDERATION OF HUMANE SOCIETIES, INC.; BY ALLOWING RESTRAINTS TO INCLUDE TRANSPORTATION IN A PICK UP TRUCK; SUBJECT TO VOICE COMMAND; INCLUDING CUSTODIAN UNDER DEFINITION OF OWNER; EXPANDING VICIOUS ANIMAL DEFINITION TO INCLUDE THOSE TRAINED FOR FIGHTING; LICENSING OF CATS; REDUCING REDEMPTION TIME FROM 7 TO 3 DAYS; EXEMPTING AS VICIOUS ANIMAL, ONE WHO BITES IN DEFENSE OF THE OWNER, A TRESPASSER OR ANY OTHER PERSON OR ANIMAL WHICH HAS THREATENED IT; BY SHARING RESPONSIBILITIES BETWEEN THE HEALTH OFFICER OR ANIMAL CONTROL OFFICER; 12 Council Regular Meeting Minutes September 17, 1990 . .. ,," . u u " . ORDINANCES. PUBLIC HEARINGS. AND RESOLUTIONS (Continued) Second Readinq:(Public Hearinq) (Continued) Ord. 90-0-33 Amendinq Chapter 5. Animals & Fowl. as recommended by Police Chief and Animal Control Officer (Continued) PROHIBITING VACCINATION BEFORE EXPIRATION OF QUARANTINE; REQUIRING VACCINATION OF DOGS AND CATS; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE. He requested audience comments. There were none. Mayor Mitchum requested a motion to go from public hearing back to regular meeting. Councilman Hatfield so moved. Councilman Gold seconded the motion. Motion CARRIED 5-0. Ord. 90-0-32 - Councilman Hatfield moved for approval of adoption of Ordinance 90-0-32 on second reading. Councilman Gold seconded the motion. Motion CARRIED 5-0. Ord. 90-0-33 - Councilman Fish moved they adopt 90-0-33. Councilmember Bennington seconded the motion. Motion CARRIED 5-0. UNFINISHED BUSINESS There was no Unfinished Business brought up at this meeting. COUNCIL/OFFICERS REPORTS City Attorney - City Attorney Alvarez had no report at this time. City Manaqer - Mr. Johnson requested Council direct the City Attorney to prepare a resolution appointing a study committee as set out in the memo from Land Development & Regulatory Agency to work on the sign ordinance and to have it at the next meeting. City Attorney Alvarez said that would be no problem. City Council - There were no Council reports at this time. QUESTIONS FROM PRESS There were no questions from the press. CITIZEN COMMENTS NoraJane Gillespie stated she's been involved in recycling for 33 years and the procedures they used on exemptions was a certificate can be picked up at City Hall and signed by the person, and when they recycle they get it signed by the recycler. She said they have 11 recycling centers in this County. She stated Mr. Overstreet needs a complete and thorough count, just as she gives him for the 153 people who are recycling for the bike path, for his credit on the grant and they could set it up as monthly accounts, to be renewed monthly, and that would take the load off him, and have the breakdown from the recyclers, but the person would have to wait until the end of the month to get their money or turn it over to charity. She added she gets hers the 15th of the following month with a complete list of everyone and how much. She said this will cover #2 plastic and cardboard at B&S and they're picking up from five commercial businesses which have a lot. She stated 1 ast month they picked up 12,107 pounds from those businesses, they're trying to set up with a tire center, and she's working with Mobil Oil to take #3 and #5 plastics. She reviewed how used baby diapers are recycled to make posts for manatee signs. Councilman Hatfield stated they recycle through his church as a collective group. He asked if the City will take his minister1s word. Mrs. Gillespie replied her minister signs off for their people, they list with the church and when the church turns it in to the recycler, they get the credit. Mr. Johnson said there's a problem with the billing process with computer billing and asked how they worked it. He said some will give exemptions for 4 to 6 months, and if they don't follow through, you back bill. He pointed out the company bids on a fixed number, and they could get to a point where the bidder won't stay with the City. Mrs. Gillespie said Satellite Beach had a problem with a voluntary program already going Citywide and they lost about 8% of what they'd expected on the contract, and they gave them three months and if they don't comply within that three months and have their certifications, they were automatically billed. She explained they bill everybody but if you bring a certificate then you1re credited and it was easier to collect ahead instead of exempt. She said they're recycling about 12,000, including South Patrick Shores and the County areas under their contract, and using a triple bin system now because the volume1s gone up. 13 Council Regular Meeting Minutes September 17, 1990 'J " , ..,,~ . u u . CITliEN COMMENTS (Continued) Frank Roe stated they have the bins distributed and asked if they are separate bins for separate items. Mr. Johnson replied all the items will be in one bin. Mr. Roe asked if it's paper, or anyth i ng. Mr. Johnson rep 1 i ed it I S paper, aluminum, and glass. Mr. Roe asked if they'll collect every week. Mr. Johnson replied they plan to collect every week. Cliff Clark, 1818 Evergreen, corrected an earl ier statement under the first Citizen Comments regarding driveways at 1818 and 1822 being too low. He said elevation was taken from the City Engineer and he has specifications for proper drainage. He said he has pictures showing the situation at the time and later the elevation was put in at the next address that created disturbance of the water laying there. He said the party at 1814 Evergreen stated 7 years ago he put that in, but 1986 was when it was, he wasn't there 7 years ago. He said the driveway was built up without any culvert under it and the area where he's using for parking was built up with rock, blocking off drainage, so as a result, a small rain shows where it got up to the driveway and a heavy rain had to cross the road and go over it, creating a nuisance. He said a week ago the City put part of this drainage in, which is according to City regulations, and Mr. Overstreet said he has to put a culvert in and drain it to the canal which will finish that side. He said as it is now they had a light rain and the road slants and it goes to the other side of the road and drains into a ditch on that side. He said the City also put in a 30 foot culvert at 1814 at City expense which should give adequate parking for the average citizen, most have 12 or 16 foot driveways. He added if there are excessive vehicles, the City shouldn't be responsible for putting in a parking lot along side the street for them. He said this has been a problem since about 1986 and today's small rain did drain off to the po i nt where the cu 1 vert is and it wi 11 be taken care of. He thanked Public Works that he doesn't have water backing up into his yard. Frank Morris showed pictures of the job the City's spending about $2,000 on. He said he had crushed stone put in, in 1986, just like it is at the top of these street at 442 at the new house. He said he doesn't see why he has to have sod and change his lifestyle. He said he'd like Council to check if there was ever a permit for drainage in front of Mr. Clark's house because it's too low. He said if Council looks up the street and at his house that's been there a number of years, they'll see contour of the street has gone down because of the way they put the cement apron in front of the new houses and that caused the water. He said the City's spending this money for one person and now they want to put sod in front of his house and he's been harassed too long. ADJOURN. Mayor Mitchum suggested a motion to adjourn. Councilman Gold so moved. Councilman Fish seconded the motion12Me ting was adjourned at 9:35 p.mn. Minutes submitted by: / ___L/ - ~~ ~ Lura Sue Koser ~,;J-/~ ~ MAYOR /- - ~ ~ p ~ A TT~T : ~~~~ CITY CLERK! A;rroyed this I day of ') u-- , 199 d . ~ ~ MA OR 14 Council Regular Meeting Minutes September 17, 1990