MARCH 4, 1997 7:00 PM

REGULAR CITY COMMISSION MEETING

HELD AT CITY HALL COMMISSION CHAMBERS

Present were: Mayor Dave Hood, Commissioners Jeffrey J. Boyle, David L. Schecter, Ed Kelley, Carl G. Persis, Acting City Manager Ted MacLeod, City Attorney Fred S. Disselkoen, and Veronica Patterson, City Clerk.


1) Meeting called to order by Mayor Hood.
2) Invocation given by Reverend Ken Zimmerman, Tomoka United Methodist Church.
3) Pledge of Allegiance.
4) Approval of the Minutes of the February 18, 1997, meeting.

5) PRESENTATION - Certificate of Appreciation to Dave Harville.

6) AUDIENCE REMARKS:

7) CONSENT AGENDA:

A) Resolution No. 97-34 appointing Dorothy Cornwell as a member of the Citizens’ Law Enforcement Advisory Board; establishing term and conditions of service; directing the Police Chief to take certain action.

B) Resolution No. 97-35 appointing Mayor Dave Hood to serve as the City’s representative on the Board of Directors of the Ormond Beach Chamber of Commerce; setting forth term and conditions of service.

8) PUBLIC HEARING on Ordinance No. 97-6 relative to the placement, construction, and modification of personal wireless service facilities; creating a new Section 3.75, and amending Sections 1.11, 5.02, 8.05, and 9.04, and Article VI of the Land Development Code by creating definitions; by creating regulations governing personal wireless service facilities; and by allowing personal wireless service facilities in certain zoning districts under certain conditions. (Telecommunication Tower Regulations) (First Reading)

9) FIRST READING OF ORDINANCES:

A) Ordinance No. 97-7 relative to colors in the Granada/Bovard Streetscape Overlay District; amending Sections 1.11, 5.04, 10.01, and 14.12 of the Land Development Code by amending definitions; amending the color approval process; amending building color regulations; and amending sign color regulations. (First Reading)

B) Ordinance No. 97-8 relative to landscape and irrigation plans and to buffer area requirements; amending Sections 8.03 and 8.04 of the Land Development Code to allow for alternate locations and/or plant material under certain circumstances. (First Reading)

C) Ordinance No. 97-9 relative to required parking for industrial, wholesale, and manufacturing establishments; amending Section 11.02 of the Land Development Code by reducing the required number of on-site parking spaces for such establishments. (First Reading)

D) Ordinance No. 97-10 relative to roof and wall signs; amending Sections 14.04 and 14.09 of the Land Development Code by prohibiting roof signs and by allowing wall signs above 20 feet, by Conditional Use Permit, for certain uses in certain zoning districts. (First Reading)

10) DISCUSSION regarding handicapped parking violations.

11) Reports, Suggestions, Requests: Mayor, City Commission, City Manager, City Attorney.

12) Close the meeting.



Item #1 - Call to Order

Mayor Hood called the meeting to order at 7:00 p.m.

Item #2 - Invocation

The invocation was given by Reverend Ken Zimmerman, Tomoka United Methodist Church.

Item #3 - Pledge of Allegiance

Mayor Hood led in the Pledge of Allegiance.

Item #4 - Approval of Minutes

Mayor Hood advised the minutes of the February 18, 1996, meeting had been sent to the Commissioners for review and asked if there were any corrections, additions, or omissions.

Commissioner Schecter moved, seconded by Commissioner Persis, to approve the minutes as submitted.

Item #5 - Presentation: Certificate of Appreciation to Dave Harville

Police Chief Robert Stewart and Sgt. Dough Rummery presented a Certificate of Appreciation to Judy Smith for Dave Harville. Chief Stewart advised Mr. Harville will also be honored at an upcoming Citizens Police Academy class for assisting the Police Department through humanitarian acts to families involved in police matters. Judy Smith accepted the Certificate and expressed her appreciation to Chief Stewart for Mr. Harville.

Item #6 - Audience Remarks

Wilmette Avenue and Main Trail Intersection
Ms. Rita Press, 875 Wilmette Avenue, Willow Pond Apartments, stated she represents herself and 162 other people living in Willow Pond Apartments as well as countless people living in Ormond Beach who travel on the Wilmette Avenue Extension but cannot cross over to Main Trail. Ms. Press presented a petition with 116 signatures from people requesting the City Commission open Main Trail to cross traffic. She stated residents of The Trails cannot cross over to go to the Barnett Bank or the Senior Center. Ms. Press stated that she understands that the reason Wilmette Avenue was originally not made a through street is because The Trails residents feared that traffic would cross Wilmette Avenue, go through The Trails and out to Granada Boulevard; however, at that time Granada Boulevard was a two-lane highway and is now four-laned. Ms. Press contended Main Trail is not a through street to Granada Boulevard, because it has a 25 mile-an-hour speed limit through a winding road and using Nova Road to access Granada Boulevard is much easier. She stated there is a great deal of confusion at this intersection, which will cause accidents to occur; and when the police start issuing $70 tickets, the Commission will receive many angry calls from recipients. Ms. Press stated Main Trail is a public road which has access to the Recreation Center and the Magic Forest, as well as the homes in The Trails. She noted that in order to travel from Wilmette to Main Trail, one must make a left turn onto Nova Road and a right turn into a private shopping center, which is illegal. Ms. Press pointed out that Main Trail is not a private road for the residents of The Trails, but is maintained by all the residents of Ormond Beach through taxes. She advised a large number of the people she represents are elderly and fear crossing Nova Road, and she presented a picture of an accident which had occurred when one of these elderly residents attempted to cross Nova Road. Ms. Press urged the City Commission to readdress this issue and open The Trails/Wilmette intersection to through traffic.

Mayor Hood stated that when this issue was originally discussed, many of the Commissioners agreed with much of what Ms. Press stated; however, in 1989, the City Commission voted for Main Trial to have the signalization that now exists. He advised that on the night the Public Hearing was held on this issue, the chambers was packed with people opposing through traffic, and no one expressed a counter viewpoint; therefore, the present City Commission voted to uphold that governmental promise and abide by the 1989 decision for the interim. He advised the City has now obtained DOT approval to fix the traffic light to help eliminate the confusion. He stated after this is accomplished and a reasonable period of time passes (90 to 120 day) when the police will enforce the traffic rules, then the City Commission has agreed to revisit the issue if the residents request it.

Ms. Tina Share, 1317 Overbrook Drive, stated people are violating the signalization and going straight across Nova Road. Ms. Share stated she regularly takes her daughter to Nova Recreation Center to attend gymnastics classes, for which she pays a fee to the City of Ormond Beach for the service. She stated she was pleased that opening Wilmette would facilitate access to the gym, but the prohibition of crossing Nova Road has nullified any benefit she may have had by the construction of the Wilmette Avenue Extension. She suggested lifting the prohibition on the east-west flow of traffic on Wilmette/Main Trail. Ms. Share suggested lowering the speed limit to 15 miles per hour and installing speed bumps to act as a deterrent to using Main Trail as a cut through to Granada Boulevard.

Ms. Barbara Goldstein, 12 Eclipse Trail, asked if another traffic light could be placed after the playground area which would allow access across Nova Road into the Recreation Center and playground area but would stop the cut-through traffic.

Mayor Hood stated this idea had been investigated, but a light would not be allowed at the playground area because it is too close to the Nova Road light, and would cause more traffic and safety problems. Mayor Hood also stated the City has plans to eventually build another entrance on the north side of the Nova Recreation Center as part of the Capital Improvement Program.

Item #7 - Consent Agenda

Mayor Hood advised the action proposed to be taken for each item on the Consent Agenda is so stated on the agenda. He asked if any member of the Commission had any questions or wished to discuss any one or more of the items separately.

Commissioner Schecter moved, seconded by Commissioner Kelley, for approval of the Consent Agenda as submitted.

Item #8 - Personal Wireless Service Facilities

Mr. Clay Ervin, Planning Director, stated that in October, 1996, staff requested a moratorium be put in place regarding the construction of telecommunication towers to give staff the opportunity to research the issue and come up with standards to protect the overall residential and aesthetic quality of the City, as well as allowing the practical use of this type of technology. Mr. Ervin stated that since that time staff has met with a variety of groups, including a group put together by the Volusia Council of Governments, and a series of guidelines was established as a model ordinance used throughout the United States. He advised that in this ordinance, staff is suggesting changing various sections of the Land Development Code to better regulate telecommunication towers and antennas. He stated ten (10) different new terms which are being used in the telecommunication industry are being recommended to be included in Section 1.11, Definitions, of the Land Development Code. He advised staff is encouraging the use of camouflage towers and antennas and the idea of co-location.

Mr. Ervin stated that specific design criteria was established in Section 3.75 to try to protect the residential areas and the aesthetic quality of the City, as well as providing design standards for the towers. He advised telecommunication towers will be prohibited in single-family zoning districts; they will not be located in the Granada Streetscape area; and they will not be allowed in the area extending from Beach Street north and south eastward to the Atlantic Ocean in an effort to protect the residential areas and to insure that the historic atmosphere and ambiance of the beach and river are protected. He advised that any area hereafter designated as a historic district would not allow telecommunication towers; however, this does not prohibit the use of camouflage antennas. Mr. Ervin stated the City must be fair and equitable in allowing these facilities; and the industry must have the ability to provide these facilities somewhere in the City.

Mr. Ervin stated that the regulation regarding minimum setbacks is one area where the telecommunications companies have differing views from staff. He advised staff will be asking that anyone who comes forward with applications for communication towers provide an inventory of what towers exit in the area, so these sites can possibly be used rather than constructing a new tower. He stated staff is recommending building height exceptions to exceed maximum building height for antennas in lieu of towers. He noted the other changes to the Code regard landscaping requirements and the type of fencing allowed to secure the telecommunication company’s investments.

Ms. Laura Bellflower, planner and attorney with the law firm of Holland and Knight and representing Primeco Personal Communications, offered the Commission a packet of information including a summary of the Telecommunication Act as it relates to local governments and two (2) fact sheets from the FCC regarding commonly asked questions. Ms. Bellflower stated Primeco was concerned about the tone of the ordinance and the purpose statement, suggesting it should be more balanced in recognizing the citizen’s desire to have these types of services and the City’s desire to provide regulation of the services. The second concern Ms. Bellflower noted was that there would be insufficient sites available in the City, given the requirements proposed. She expressed the greatest concern with the spacing requirements, the setbacks, and the prohibition of towers in so many of the districts. Ms. Bellflower stated these proposed regulations strictly limit the number of areas available to place towers.

Mayor Hood stated the City has this right, as long as there are some sites that are available. Ms. Bellflower stated the City has the right to regulate towers in a land use situation, but if that results in the prohibition or the effect of a prohibition, it is not allowed. Ms. Bellflower further stated that if there is a set number of tower sites and that number is not sufficient for all the carriers, the carriers coming in later may be precluded. Mayor Hood asked if Ms. Bellflower had any clear evidence that if this ordinance is passed, there will not be sufficient sites available to handle the carriers that are reasonably anticipated. Ms. Bellflower stated she does not have specific proof nor does staff have evidence to the contrary, and she stated none of the carriers can know exactly where the towers will need to be placed.

Mr. Ervin stated staff did not do an individual parcel analysis as to the impact of these setbacks, and he allowed there will be some limit to the ability to acquire parcels on US1 and Granada Boulevard south; however, some sites north on US1 will meet the requirements. Mr. Ervin offered to work with the telecommunication companies on this issue.

Mayor Hood expressed concern that if regulations make it easier to place towers in Ormond Beach, the telecommunications companies will bypass other communities and place all their towers in Ormond Beach. Ms. Bellflower stated that if regulations are stricter in one area and more lenient in another, and a tower could be placed in either place, they would place the tower where the regulations were less restrictive, but this is frequently not the case.

Mr. Ervin stated that as per the ordinance, antennas are allowed in nearly all zoning districts, but towers are limited, and there are seven (7) to eight (8) story buildings along the beach that have existing antennas and can accommodate telecommunication antennas. He advised some camouflage antennas would also be acceptable.

Ms. Bellflower stated that the spacing requirements may be counterproductive to what the City is trying to accomplish to locate in non-residential areas since if you place one tower in a commercial area, another tower is disallowed for 1,500 feet. She stated also that Daytona Beach and Port Orange have eliminated the need to obtain occupational licenses, and she questioned whether the City can impose occupational licensing requirements on telecommunication companies.

Commissioner Schecter asked Ms. Bellflower if she had specific language she would like the City Commission to entertain. He stated he would agree to Ms. Bellflower’s comment regarding the purpose statement, but he stated it is up to the telecommunication industry to determine if there are sufficient sites available. He stated the City has a right to set the ground rules, and in lieu of specific recommendations from Ms. Bellflower, he is in favor of the ordinance.

Commissioner Boyle stated that the Commission cannot determine if this ordinance would be inhibiting at some point in time; therefore, he favors passing the ordinance, and if an insufficiency is noted, the people petitioning for a tower or antenna can come before the City Commission for reconsideration.

Ms. Bellflower advised she will supply a map at the next hearing to show insufficiency.

Mr. Rob Merrell, representing BellSouth Mobility, stated he had made similar comments regarding spacing at the Planning Board meeting. Mr. Merrell agreed that the ordinance will need to be tested. He pointed out that it is difficult to change an ordinance once it is passed, but he stated he understood that, without proof of insufficiency, the City Commission would need something substantial to change the setbacks. He stated he hoped the map Ms. Bellflower will present will supply that. He asked the City Commission to take a look at some of the existing towers. Mr. Merrell stated only sixty (60) calls are handled per tower; therefore, there will be capacity needs in Ormond Beach, and the highest capacity need for that service will be along the roadways and in subdivisions where cellular phones are used the most. He suggested placing towers closer together in industrial areas, such as the City’s industrial park, to form a "tower farm" where there would be less resistance to the aesthetics. He stated there are no safety reasons for not permitting towers, since they are designed to be stronger than any other structures.

Mr. Ervin stated the "tower farm" idea was considered, but the industrial area to which Mr. Merrell referred is at the Municipal Airport and would, therefore, be unacceptable. He noted most of the other areas are adjacent to residential areas. Mr. Ervin admitted that since this is new legislation, staff will probably have to come back to the City Commission to make adjustments in the future, but he advised staff is receptive to suggestions by the telecommunication industry

Commissioner Kelley moved, seconded by Commissioner Schecter, to close the public hearing on Item 8. The motion passed unanimously.

Commissioner Schecter moved, seconded by Commissioner Persis, for approval of Ordinance No. 97-6, on first reading, as read by title only.

Mr. Fred S. Disselkoen, Jr., City Attorney, pointed out that the last "Whereas" paragraph makes the findings that are required under the Telecommunications Act, which is that these amendments do not unreasonably discriminate among the providers of functionally equivalent services and do not prohibit or have the effect of prohibiting the provision of personal wireless services. He advised that since there is no evidence at this point to the contrary before the Commission, that is why the Commission is making these findings; and if there is subsequent evidence at a future public hearing, the Commission can then revisit that particular finding. Also, regarding the question of obtaining an Occupational License, he stated it may be that if the company does not have a business office within the City of Ormond Beach, an Occupational License may not be necessary. Mr. Disselkoen suggested that on page 9, under item L, the wording "unless otherwise prohibited by law" be added at the end of the first sentence.

Commissioner Schecter moved, seconded by Commissioner Kelley, to amend Ordinance No. 97-6, to add the phrase "unless otherwise prohibited by law" at the end of the first sentence under letter "L" on page 9 of the ordinance.

Commissioner Kelley warned against making ordinances too restrictive, as the consumer of the telecommunication services will pay the cost of overregulation. Commissioner Kelley pointed out that a 300 foot setback off I-95 will eliminate a large amount of land that could be made available for a service that is essential. He stated he believes these types of an antennas will be temporary, considering the new technology being discovered every day.

Commissioner Boyle stated he is in favor of this ordinance and that the Commission handle future remedies on a case-by-case basis.

Mayor Hood stated he will vote for this ordinance subject to seeing an overlay showing proof of insufficiency. He agreed this is a balancing question and stated he would much rather err on the side of the citizen’s aesthetic desires than on the side of the telecommunication industry because the telecommunication industry can far better survive any errors as opposed to the citizens.

Mr. Ervin agreed with Mayor Hood’s assessment and stated staff would look forward to having an overlay/map presented from the industry. Mr. Ervin pointed out that the next reading of this Ordinance would be April 1st and if not approved at that time, the moratorium will end. Mayor Hood requested that Ms. Bellflower provide staff with the map/matrix at least ten (10) days prior to the next City Commission meeting to give staff a chance to review it and insure its accuracy, to which Ms. Bellflower agreed.

Item #9(A) - Colors in the Granada/Bovard Streetscape Overlay District

Commissioner Schecter moved, seconded by Commissioner Kelley, for approval of Ordinance No. 97-7, on first reading, by title only.

Item # 9(B) - Landscape and Irrigation Plans and to Buffer Area Requirements

Commissioner Schecter moved, seconded by Commissioner Persis, for approval of ordinance No. 97-8 on first reading, by title only.

Commissioner Schecter requested a copy of this ordinance be sent, with a cover letter to Mr. Gregory Avakian, so that he will be made aware the Commission is putting many of his thoughts into action. Mayor Hood asked to have Mr. Eugene Miller, City Manager, send Mr. Avakian this letter.

Item #9(C) - Required Parking for Industrial, Wholesale, and Manufacturing Establishments.

Commissioner Schecter moved, seconded by Commissioner Kelley, for approval of Ordinance No. 97-9 on first reading, by title only.

Commissioner Schecter suggested that the language in the last sentence of Section D that calls for one parking space for each employee on the largest shift, whichever is greater, be deleted. He reasoned that certain facilities could not meet the City’s parking requirements due to lack of land accessible to the facility such as those facilities surrounded by wetlands.

Mr. Ervin admitted there will be problems going from a nonlabor intensive use to a labor intensive use, but this would hopefully be noted through the occupational licensing process, and the new user would have to provide sufficient parking. Mr. Ervin stated a large number of communities are using the employees for determination in parking even though it is difficult to implement.

Commissioner Kelley stated he does not want to penalize companies for expanding or coming to Ormond Beach by having them meet too restrictive parking requirements.

Commissioner Schecter moved to amend Ordinance No. 97-9 to delete the language in the last sentence of Section D that calls for one parking space for each employee on the largest shift, whichever is greater. The motion died for lack of a second.

Item #9(D) - Roof and Wall Signs

Commissioner Schecter moved, seconded by Commissioner Persis, for approval of Ordinance No. 97-10 on first reading, by title only.

Commissioner Boyle stated there must be a balance between the aesthetics and the need for businesses to locate in Ormond Beach.

Commissioner Boyle moved, seconded by Commissioner Schecter, to amend Ordinance No. 97-10 to delete Sections I, IV and V with the remaining sections renumbered as suggested in the staff report.

Commissioner Schecter requested staff to survey the eight (8) to twelve (12) businesses who are dealing with roof signs to find out their position on roof signs and to contact the owners of the downtown businesses whose signs will be in a nonconforming position by 1997 or 2001 to find the best solution to that situation.

Commissioner Kelley disagreed with being too strict on signage, stating a business must be able to put up signs advertising their business or they will not come to Ormond Beach.

Item #10 - Handicapped Parking Violations

Mayor Hood advised that Mr. Eugene Miller, City Manager, is recommending handicapped parking violations be increased from $15 to $100. Mr. Tom Lipps, Assistant to the City Manager, stated the recommendation is to write tickets based on the State statute which establishes $100 and allows a municipality to go up to $250 by local ordinance. He advised staff determined that $15 is too low to be a deterrent; whereas, the $100 fee will be a significant deterrent and would not require a change of signs from businesses that have placed the appropriate signage up between October 1 and the present. He reported only five (5) tickets were issued last year for handicapped parking violations. He stated that he and Chief Stewart agree increased enforcement is also a significant issue.

Ms. Barbara Goldstein, 12 Eclipse Trail, representing the Handicapped Adults of Volusia County and the Post-Polio Support Group Florida East Coast, stated that the $15 fine is low, but she would prefer Ormond Beach go along with the County Council’s motion for $250 rather than the $100 recommended by staff. Ms. Goldstein recommended the signs read maximum fine to $250, which would not automatically mean the fine would be $250, but up to $250. While preferring the $250 fine, she stated she would agree with the $100 fine in hopes that it will be raised to $250 at a future date. Ms. Goldstein stared her organizations strive to see uniformity in the Volusia County municipalities having the same setup in fines and parking enforcement. She stated she will be working with Chief Stewart on a volunteer program. She noted another item of concern is to make sure the parking spaces are retrofitted in the proper way, that the spacing is done properly, and that access lanes are noted they are not to be used for parking. Ms. Goldstein expressed her appreciation to the Ormond Beach City Commission and expressed hope that they will continue in their efforts since the disabled community is growing.

Commissioner Schecter moved, seconded by Commissioner Boyle, to adopt a $100 fine for handicapped parking violations and to ask Chief Stewart to be aggressive in enforcement methods.

Commissioner Kelley stated he recommends the recipients of the handicapped stickers not utilize the spaces and then have an able bodied person exit the vehicle from that space to conduct activities, thus tying up that space from a truly handicapped person’s access.

Commissioner Boyle stated he felt a $100 fine would be a deterrent to abuse of the handicapped parking spaces.

Commissioner Persis stated education is also an important issue, since police officers cannot be in every parking lot to enforce the laws. He advised that even in this enlightened age, some people are still not aware these spaces are not to be used without a handicap sticker.

Item #11- Reports, Suggestions, Requests

Mayor Hood’s Representation
Commissioner Boyle expressed his appreciation to Mayor Hood for agreeing to represent the City Commission on the Chamber of Commerce, as well for his work on the VCOG and MPO.

Black College Reunion
Commissioner Schecter expressed his appreciation to Chief Stewart for information provided in a Friday, February 28th, memorandum from the City Manager regarding Black College Reunion, and he requested a one (1) page report summarizing what the Police Department has done in coordination with the other departments be provided at the first City Commission meeting in April.

Eastern Sector Police Station
Commissioner Schecter requested Chief Stewart supply a summary of what is being accomplished regarding the Eastern Sector Police Station.

Halifax/Indian River Task Force
Commissioner Schecter informed the Commission he must resign his seat on the Halifax/Indian River Task Force due to time constraints. He stated he was informed that there are two (2) staff members who would be interested in serving in this capacity. Mayor Hood asked the remaining Commissioners if anyone would be interested in serving on the Task Force. Since no Commissioner offered to fill the post, Mayor Hood requested that Mr. Miller offer the names of the people interested

Vehicles Parked at Hand Avenue and Nova Road
Commissioner Kelley stated that the vehicles previously parked at Hand Avenue and Nova Road are now parking at the entrance to Forest Hills. He asked that this be addressed through code enforcement.

Commission Dress Code
Commissioner Kelley recommended formally adopting a less restrictive dress code for the summer months, perhaps having short sleeve shirts with the City logo imprinted on them. He offered to supply the shirts. Mayor Hood asked that this be placed on one of the April City Commission meetings for discussion.

Motorcycle Safety
Commissioner Persis cautioned the audience to be aware of the motorcycles currently in the Ormond Beach area and stressed driving safely.

Persis Family Condolences
Commissioner Persis expressed his appreciation to the Mayor, the Commission, the City Manager, the City Attorney, members of City staff, and citizens for the condolences his family received after the death of his wife’s sister and brother-in-law in an airplane accident.

All Area First Team Soccer Team
Mr. Disselkoen congratulated Commissioner Kelley on his daughter’s making the All Area First Team Soccer team.

Ormond Main Street Report
Mayor Hood stated he received a letter from Ormond Main Street asking for their proposals to be placed on the April 1st City Commission agenda. There being no objection, Mayor Hood asked staff to place this item on the April 1st City Commission agenda.

Item #12 - Close the Meeting

The meeting was adjourned at 8:30 p.m.

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