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SEPTEMBER 15, 1998 7:00 PM Present were: Mayor Dave Hood, Commissioners Jeffrey J. Boyle, Thelma Irvin, Frank Gillooly, Carl G. Persis, City Manager Eugene Miller, City Attorney Randy Hayes, and Veronica Patterson, City Clerk. A G E N D A
Item #1 - Call to Order Mayor Hood called the meeting to order at 7:00 PM. Item #2 - Invocation The invocation was given by Reverend Isaiah Paul, St. Johns Missionary Baptist Church. Item #3 - Pledge of Allegiance Mayor Hood led in the Pledge of Allegiance. Item #4(A) - Adopt Proposed Operating Millage Rate Mr. Joseph Lipscomb, 22 Shadow Creek Way, stated the property tax rate indicated on the notice he received is 3.988 mills for 1998, which is 10.741% greater than in 1997 and does not compute with the figure presented in the budget. Mr. Lipscomb stated a transfer of funds from a taxpayers’ savings account is being used in balancing a budget that is not being balanced by taxes and fees. He stated these funds exist to make funds available for the City to respond to unforeseen budget emergencies and enhance the City’s financial rating, not as a budget supplement. Mr. Lipscomb indicated that when these funds are converted to a millage equivalent, this equals an additional .5953 mills, which would make an actual contribution of 23.8% greater than in 1997. He stated this increase is excessive and unacceptable. Mayor Hood reported the proposed millage rate necessary to fund the budget of 3.1433 mills is 8.56% higher than the rolled back rate. Mr. Ed Kelley, 8 Tidewater Drive, questioned why the 8.5% increase is necessary and why the reserves are being transferred to balance the budget. He expressed concern as to how this will affect the City’s ability to bond in the future and how much more the taxes will need to be increased next year. Mr. Kelley stated people will remember this sizable increase as compared to neighboring cities and the county at the next election. Ms. Harriet Damesek, 4 Sandpoint Circle, representing the Sierra Club, presented each Commissioner with the latest Sierra Club publication regarding suburban sprawl, The Dark Side of the American Dream, the Costs and Consequences of Suburban Sprawl. Ms. Damesek stated sprawl relates to the budget in that it increases the cost of operating the City. Commissioner Boyle stated he cannot support the recommended 8.56% tax increase. He outlined concerns that Capital Improvements are to double, and he stated he opposes funds being expended for a lease agreement without a policy decision for economic incentives. Commissioner Boyle noted there were no cuts or fine tuning in this budget by the Commission. He indicated that he believes the estimates of income and expenditures are very conservative. Commissioner Boyle addressed the concern regarding the reserve account by explaining that it had reached almost $4.5 million, and utilizing the identified 15% reserve allocation, there is nearly $2 million in excess reserve. He continued that he is opposed to any budget that does not have the unanimous support of the Commission, explaining that when a tax increase is to be considered, unanimous consent is needed for the citizens’ continued trust and confidence. Commissioner Boyle moved to amend the budget to adopt a millage rate of 2.96067, which is the same rate imposed for the 1997-98 budget year. Commissioner Boyle stated the road levy and the River’s project, where the taxpayers voted increases, would be in effect, but there would be no tax increase. He stated $285,000 of fund balance would be required, but there would still be more than the 15% reserve after the funds were dedicated. Mr. Bob Bentkofsky, Budget Manager, concurred that 15% reserve would remain. The motion failed for lack of a second. Commissioner Persis asked how much of the reserve would be transferred in the proposed budget; whereby, Mr. Bentkofsky replied $969,347 is appropriated in Fund Balance to support the General Fund, which is an increase of $245,000 over 1997. Mr. Bentkofsky stated the Fund Balance appropriated was 3.8% of the total revenues in the General Fund, while the $969,347 was approximately 5.5% of the total revenues. Mr. Eugene Miller, City Manager, stated that he had recommended a 12.43% increase over the rolled back rate. He stated this was discussed at length at the budget workshops, and this proposed figure is a compromise reached, although staff was reluctant to agree due to the impact that will have to be faced in the next few years. Mayor Hood stated that in January 1998, an 18.9% across the board pay increase for firefighters was passed by three (3) Commissioners, and these actions have consequences. He stated the City is giving $1.2 million in raises this year: 18.9% for the firefighters, 8.5% for the police, and the general employees have recently turned down 8.5%. Mayor Hood noted these figures do not include the added cost of heath insurance and pension funds. He stated there are only two ways to solve this problem: to raise taxes or cut capital spending. Mayor Hood indicated that the Commission attended Capital Improvement Workshops and voted unanimously that these were the capital improvements the community needed to be funded. He stated the City’s auditors have warned taking money from reserves is imprudent to pay for recurring expenses, and because of the policies adopted, next year there will be $926,000 in pay increases, assuming health insurance and pension contributions do not increase. Mayor Hood stated the third year there is another $773,000 of increases, making the same assumptions, and after this three-year period, it will not be possible to negotiate a reduced contract; therefore, the funding needed will continue to rise. Mayor Hood pointed out that Commissioner Boyle asserts the reason taxes are being raised is because of economic development and incentives, but in fact, the City makes money on the WDL project. He also refuted Commissioner Boyle’s assertion that a unanimous consensus is needed, and he stated he opposed the firefighters’ increases and argued at every meeting to that effect, so he will not vote for any budget with these raises included. Mayor Hood asked Mr. Bentkofsky the consequences of Commissioner Boyle’s motion for next year, assuming a normal income stream. Mr. Bentkofsky stated the payroll has taken the City to a new level of expenditures which will put pressure on property taxes, where the tax increases would probably be close to 8.5% or 9%, plus any increases due to insurance, pensions or new positions. He stated the City should not appropriate more than 5% of total revenues to be fund balance, but the City is now exceeding this somewhat at 5.5%, and he would not recommend adding to this figure. Mayor Hood concluded that if the Commission had adopted a rational pay plan of 4% or 5% per year, the taxes would not have to be increased. Commissioner Persis stated if the current rolled back rate were adopted, there would be no increase in taxes and approximately $400,000 would need to be transferred from the contingency. He stated if the same tax rate were being used this fiscal year, there would be a 2.26% tax increase over the rolled back rate and $285,000 would have to be taken from the reserve to balance the budget. Commissioner Persis stated a 3% increase would split the $400,000 between tax increase and reducing the reserve. He stated the cost for the employee contracts is $243,000 for Police, $334,000 for firefighters (which includes the increase and six (6) new positions along with benefits), and the last offer for the General Employees is $250,000, which would equal approximately $700,000, plus the total cost for capital improvements which requires support from the General Fund. Commissioner Persis stated if the firefighter increase had not been so high, all three (3) groups would have been substantially lower. Mr. Bentkofsky explained the non-property tax revenues from fees, state revenue sharing funds, utility taxes and franchise fees has historically been a $300,000 to $400,000 increase, but this year there is stronger growth in some of the revenue sources, and there was a $700,000 increase from growth. Mayor Hood asked if tax increases would be doubled if normal growth is realized next year; whereby, Mr. Bentkofsky replied the rate would be 15% to 17% with normal growth next year. Commissioner Boyle pointed out the reserve was increased from $2.6 million to $4.4 million in the past two (2) years, and there has been an average rise in assessments of 2%. He submitted that there was a clear public mandate to raise the firefighter’s salaries, and after the experiences of last summer, the mandate is even greater now. He stated the raise amounted to $175,000 to $200,000 for the firefighters union, yet the reserves were growing at a rate of $2 million; and it was in that context that the decision was made to increase the firefighters salaries. Regarding economic development incentives, Commissioner Boyle stated the Mayor unilaterally agreed to place a $150,000 parking lot into the WDL project without any matching grant, consent or discussion, and when the vote was taken on the letter of intent, the cost of the parking lot was unknown. He contended the two (2) figures (the firefighters’ raise and the WDL parking lot) are similar. Commissioner Boyle stated the money the City will receive from WDL will not be realized for 20 years, and the City will not break even for 12 years. He explained that the firefighter increase was a correction of the contract, putting back what employees once had. He stated in 1994 the step plan was taken away, and the firefighters were promised a merit plan; but the City reneged on that promise in 1995, 1996, and 1997. Mayor Hood stated the City will realize $237,000 within a year of doing the WDL project. He stated a commitment was made for the firefighters’ increase, and certain Commissioners assured the public taxes would not have to be raised as a result; however, now an increase is needed to balance the budget. Commissioner Boyle stated his motion was for no tax increase, and he believes the raises can be accomplished without the tax increase. He pointed out there are reserves in excess of what this and other Commissions have established, and that the City’s employees are the most valuable asset in the City. Mr. Miller encouraged the compromised rate of 8.5% be accepted. He stated that even though this is not what he originally recommended, through good management and policies, it will be sufficient. Commissioner Gillooly stated he gave an oath not to raise taxes for the firefighters’ raise and explained that the difference in the firefighters’ salary was to come out of the reserves, not the increased taxes. He stated part of the reserves was achieved from savings from the firefighters. He explained that the recommended 8.5% increase would equal a $20 property tax increase on a $100,000 home with homestead, and $8.37 of this figure is attributed to the bond issue for the River’s project. Commissioner Gillooly stated for this $20, besides the Rivers project, a third man was gained on fire trucks and money went to the recreation programs. He noted the community is growing, and Ormond Beach has been fortunate to not have a tax increase in the past few years; however, money is needed to maintain the quality of life that citizens insist upon. Commissioner Gillooly indicated he favors the staff recommended increase of 8.5%. Commissioner Irvin stated she can see the need for a tax increase in the future, but she does not favor an increase this year, stating there are other options not yet put forth. Commissioner Persis stated it would be irresponsible to take the approximate $400,000 needed from the reserve, because that would just delay the inevitable. He recommended splitting the cost between an increased tax and taking the remainder from the reserve fund, stating that while not ideal, it is a fair compromise. Commissioner Persis moved to approve a tax increase of 3% and to appropriate $200,000 from the fund balance. Commissioner Gillooly questioned if this motion passed, how much would remain in the reserve fund beyond the 15% that has been designated; whereby, Mr. Bentkofsky replied $650,000 would remain for appropriation. Commissioner Gillooly asked Mr. Miller to comment on this proposal. Mr. Miller again alerted the Commission to be vigilant when taking money from the reserves because of its effect on future years. Mr. Paul M. Lane, Finance Director, agreed the problem is balancing the budget in future years and stated taking funds from the reserve is a "stop gap measure" that will postpone the difficulty; therefore, he recommended approval of the 8.56% increase. He stated a similar tax increase of 5% to 8% next year is probable, assuming the proposed increase is approved. The motion died for lack of a second. Commissioner Gillooly stated that even with the 8.56% increase, Ormond Beach has the third from the lowest assessment in Volusia County. Commissioner Gillooly made a motion to approve the staff recommended increase of 8.56% with an operating millage rate of 3.1433. The motion died for lack of a second. Commissioner Boyle stated if the Commission approves a tax increase, the increase cannot be claimed to be for isolated expenditures such as the firefighters’ increase or any other specific program. He stated if there were an increase, it would be for the following: the salary increase for the firefighters, the salary increase for the police, the salary increase for the general employees, $60,000 given to the art museum, $125,000 for the skateboard park, $160,000 for the South Ormond Recreation Center, $700,000 for two (2) recreation fields, and other projects. Commissioner Boyle stated he finds it irresponsible for any government entity to take money from the taxpayers when there is excess reserve over and above what has been identified as a minimum reserve requirement. He stated it is doubtful that capital improvements will be doubled next year, which would leave extra funds available. Commissioner Persis asked what the millage rate would be with a 3.0% increase, and Mr. Bentkofsky replied it would be 2.982 mills. Mayor Hood stated while he strongly objects, due to reasons previously noted, he would be willing to approve the 8.56% increase. Commissioner Persis indicated he could not accept the 8.56% increase, because he agrees the reserve is high due to a good year and that needs to be taken advantage of, but in a limited way. Commissioner Persis moved, seconded by Commissioner Gillooly, to approve a tax increase of 3%, which would be 2.982 mills, and to appropriate $252,000 from the fund balance.
Commissioner Boyle moved, seconded by Commissioner Persis, to adopt .64387 for the proposed debt service millage rate and .11164 for the 1997 General Obligation Bond Sinking Fund.
Item #4(B) - Adopt Annual Budget ORDINANCE NO. 98 - 38
Commissioner Boyle moved, seconded by Commissioner Persis, for approval of Ordinance No. 98-38 on first reading.
Mayor Hood closed the Public Hearing. Item #5 - Approval of Minutes Mayor Hood advised the Minutes of the September 1, 1998, meeting have been sent to the Commissioners for review and asked if there were any corrections, additions, or omissions. Commissioner Gillooly stated page 1530, the eighth paragraph down, states "Commissioner Gillooly expressed dissatisfaction that this relocation was originally to have been at no cost to the City, which could not be accomplished due to lack of groundwork." He asked that the minutes be clarified by stating "Commissioner Gillooly expressed dissatisfaction with the moving costs since this relocation was originally to have been at no cost to the City, which could not be accomplished due to lack of groundwork." Commissioner Persis moved, seconded by Commissioner Gillooly, to approve the minutes with the above-noted amendment.
Item #6 - Audience Remarks No audience remarks were offered. Item #7 - Consent Agenda Mayor Hood advised that 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 questions or wished to discuss any one or more of the items separately. Commissioner Gillooly asked that Item #7 (G) be discussed separately. Commissioner Boyle moved, seconded by Commissioner Irvin, for approval of the Consent Agenda, minus Item #7(G).
Item #7(G) - Ormond Beach Chamber of Commerce Service Contract RESOLUTION NO. 98 - 158
Commissioner Boyle moved, seconded by Commissioner Persis, for approval of Resolution No. 98-158, as read by title only. Commissioner Gillooly stated he would ordinarily have no problem with a request of this sort since the Chamber does a very commendable job of promoting the City, and he welcomes them as partners in this endeavor. He stated that to the best of his knowledge, the Chamber has been apolitical and has not, in the past, publicly attacked candidates or incumbent City officials. He stated the Chamber has taken stands supporting or criticizing certain issues, and this is, of course, a right we all share in a democracy. Commissioner Gillooly reported, however, that in two (2) recent newsletters there was an unfounded attack on him and two (2) other Commissioners, and the information in the article was purposely incomplete and distorted. Commissioner Gillooly stated statements were made that the three (3) Commissioners denied the Chamber an opportunity to host a series of summer concerts, thus implying that it was thwarted in its efforts to provide a service to the community; however, what was not mentioned was that to comply with the Chamber’s request, four (4) ordinances would have had to be repealed in less than a month’s time. He stated even if he were not one of the Commissioners involved, he would be just as angered if any public official was attacked by an organization that should, by its very nature, be far above smear politics. Commissioner Gillooly concluded by stating that for his remaining three (3) year term, he wants it to be understood that he will, in the future, vigorously oppose any public funding for any group that is so blatantly partisan and irresponsible. Having stated this caution for the future, Commissioner Gillooly indicated he will now vote yes for this contract. Commissioner Boyle stated this is a good contract for the City, and the members of the Chamber do donate their time and resources for the benefit of Ormond Beach. He stated the newsletter goes to their members, and they have a right of free speech which allows them to print anything they desire. Commissioner Boyle agreed he also had a problem with the two (2) recent articles, and he met with the Chamber Board to try to clear up some issues. He stated their bylaws demand they be apolitical and non-partisan. Commissioner Boyle pointed out the Chamber serves a special interest, and elected people are subject to criticism. He noted the Newsletter stated three (3) Commissioners are "no growth Commissioners," yet the City had $50 million worth of new construction last year. He stated this kind of reporting can do damage to the City, and he hopes in the future, anything printed is carefully researched. Commissioner Irvin agreed that she also is sensitive to the comments made in the articles and spoke to the Chamber regarding this. She indicated she is looking forward to working with the Chamber in the future.
Item #8(A) - Bovard Avenue Streetscape Master Plan Commissioner Persis moved, seconded by Commissioner Boyle, to close the public hearing on Item #8(A). The motion carried unanimously. RESOLUTION NO. 98 - 161
Commissioner Persis moved, seconded by Commissioner Boyle, for approval of Resolution No. 98-161, as read by title only.
Item #8(B) - The Other Place Nightclub and Sports Bar CUP Mr. Kevin Denny, Acting Planning Director, reported staff has received several letters from tenants of the Ellinor Village Shopping Center, along with a letter from the Homeowners’ Association supporting this request. Mr. Dean DeMattio, Cardinal Drive and Atlantic Avenue, owner of the Pirate’s Cove Miniature Golf next to the property in question, stated there is a parking problem at night. He advised there is litigation pending against Pirate’s Cove from one of the patrons of The Other Place, which is costing them money to defend themselves for using their lot after hours. He stated the proposed use is inconsistent with the family atmosphere they are trying to promote; the vandalism has significantly decreased since the bar has closed; and he fears there is a significant possibility vandalism will increase again if the bar is reopened. Commissioner Persis moved, seconded by Commissioner Gillooly, to close the public hearing on Item #8(B). The motion carried unanimously. RESOLUTION NO. 98 - 162
Commissioner Persis moved, seconded by Commissioner Boyle, for approval of Resolution No. 98-162, as read by title only. Commissioner Boyle asked if staff is recommending denial due to the parking issue; whereby, Mr. Denny agreed staff was concerned regarding the parking and explained that they examined the issue using the daily use perspective. He stated the parking at night would probably not be a problem, but staff was using the conservative approach in that staff cannot control the uses in the shopping center and was concerned that if a restaurant would move into the shopping center, there may be a parking problem. Commissioner Boyle stated he would approve the proposal, but only subject to the conditions recommended by staff. He asked staff to work with the owners of The Other Place and Pirate’s Cove to resolve the problems involved. Mayor Hood noted that the Resolution includes the staff recommendations. Commissioner Persis stated he believes this to be a good project. He questioned if the west wall would be painted; whereby, Mayor Hood pointed out that painting the west wall to match the remainder of the exterior is a provision of the Resolution. Mr. Denny advised that the wall has already been stuccoed.
Item #8(C) - Southwest I-95 Complex Amended Development Order Commissioner Boyle moved, seconded by Commissioner Persis, to continue this item to the October 20, 1998, City Commission meeting.
Item #8(D) - "Zinser Parcel" Planned Business Development Mr. Denny stated this parcel is considered a Planned Business Development because the applicant is requesting to impact the wetlands beyond the percentages established in the Land Development Code (.6 acres of impact). He noted the City Commission has recently reversed its decision on the Comprehensive Plan policy that allowed these impacts, but that will not become effective until the end of this year. Mr. Denny explained the Development Review Board denied this request based on their concern regarding the mitigation plan which was not occurring within the City. He stated that it is staff’s interpretation of the Land Development Code that the applicant is not required to mitigate within the City limits. He explained the Code states that if they do not meet the Land Development Code mitigation standards, they must pay into the Development Opportunity Fund. Mayor Hood asked if there were legally any grounds the Commission could use to deny this request; whereby, Mr. Randal Hayes, City Attorney, stated there is no legal ground to deny the request. Commissioner Boyle questioned that it is the responsibility of the City Commission to interpret the Land Development Code and to determine if the project meets Code. Mr. Hayes explained that the Code makes the Planning Director responsible for being the official interpreter of the Code, and based on language as it relates to this project, his interpretation is reasonable. Commissioner Boyle questioned what would occur if the Commission has a different interpretation. Mr. Hayes stated they may have a different interpretation, but to deny the request there must be some finding articulated which would satisfy any motion to deny that the criteria have not been met. Mayor Hood pointed out there is no factual basis upon which an argument can be made on which the Commission can deny the request. Mayor Hood stated if the request is denied, it would lead to a failed law suit costing the taxpayers money. Commissioner Gillooly asked if the Planning Director believes there is compensation for Ormond Beach if the mitigation is taking place in a swamp in Flagler County and Ormond Beach does not gain any additional wetlands; whereby, Mr. Denny replied that the Code states that if you cannot meet mitigation standards, the developer must pay into a Development Opportunity Fund at a rate per acre established by the City Commission, and for this reason they are not required to provide any mitigation. Commissioner Boyle asked Mr. Denny to explain how the mitigation will occur. Mr. Denny explained that mitigation for St. John's River Water Management District will occur in the Hull Creek Swamp at a ratio of 25 to 1, and no mitigation will occur for the City’s purposes as previously discussed. Mr. Denny stated the developer will pay $3,890 into the Development Opportunity Fund. Commissioner Gillooly summed the situation up by stating that for under $4,000, a developer is getting the right to destroy .6 acres of wetlands in a good commercial area. Commissioner Boyle stated a few years ago there was an amendment to the Comprehensive Plan which allowed this wetland impact, but it has since been rescinded and the window for this type of application will close at year’s end. He asked if Mr. Holub has any other applications submitted which would also take advantage of this amendment. Mr. Denny replied Mr. Holub has three (3) applications—the other applications two (2) are the Ormond Town Commercial, which is located behind Express Lube, and Lot 11 in Southwest Interchange. Commissioner Boyle asked if the mitigation requirements have been satisfied on the code violations on the adjacent properties at the Southwest Interchange. Mr. Denny replied they have been satisfied. Commissioner Persis stated it is unfortunate that this project must be allowed, but the legal point is the most important issue since a law suit is certainly not desirable. Commissioner Irvin asked if any board, other than the Development Review Board, has reviewed this project; whereby, Mr. Denny replied that this project was only reviewed by the Development Review Board, but these changes were reviewed by the Planning Board and the City Commission prior to changing the policy in 1996. Commissioner Boyle stated a property owner who lives at the perimeter of this development has had flooding this winter which had not occurred for 75 years. He noted that although the threat of a law suit is a very real threat and must be considered, the key question is that the Land Development Code states that when wetlands are impacted, it is necessary to create, preserve or enhance wetlands. Commissioner Boyle indicated that it implies this mitigation would occur within the City limits since it is City Land Development Code. He stated contradicting this is a controversial amendment. Commissioner Boyle noted he sees a contradiction between preservation and this amendment. He explained preservation indicates land that was otherwise going to be developed, and it is highly unlikely that a large swamp, where a portion has already been dedicated in Flagler County, would be developed. Commissioner Boyle stated he believes the Commission has every right to make an interpretation about the contradiction in the Land Development Code and to determine if the mitigation is adequate. He stated staff agrees all codes have been met, yet the Development Review Board voted four (4) to one (1) they did not agree mitigation was adequate and recommended denial. Commissioner Boyle stated he would vote to deny the application, but would approve of a reapplication that promised a two (2) to one (1) mitigation within Ormond Beach. Mr. Doyle Tumbleson, an attorney representing the developer, stated the existing Land Development Code and ordinances permit Mr. Holub to do what has been requested. He pointed out that the code states if mitigation cannot be done in the City, the developer must pay into the Development Opportunity Fund, and it is from that fund that the enhancement and preservation of wetlands will occur. He stated the mitigation is being done in Flagler County because that is where the Water Management District requested the mitigation take place. Mr. Tumbleson noted the Water Management District is setting aside large blocks of land in the Cypress Swamp to preserve that which is a larger and more important functioning ecosystem as opposed to this isolated Class 2 wetland. Mr. Joe Hopkins, Design Engineer with The Performance Group, 140 South Beach Street, Daytona Beach, explained that within the development plan, only 47% will be impervious and 53% will be enhanced landscaping exceeding the Land Development Code’s requirements or preserved landscaping using a system of retaining walls and an underground exfiltration system. Regarding hydrology, he advised The Performance Group has a clear understanding what the groundwater conditions are on the site, which is not within the flood plane as designated by FEMA. He stated this site has been studied, and they feel confident they are not creating a downstream effect. Mr. Joe Young, Biological Consulting Services, New Smyrna Beach, stated this system was drained historically for many years by a channelized drainage system, and only recently, with the development of the Southwest Interchange, that parcel became an isolated wetland. He stated the value of the site as a functioning wetland is very poor. Mr. Young stated that if this wetland were a half acre or less in size, there would be no mitigation at all for the St. John's River Water Management District. He explained that taking a poor quality wetland with no wildlife value and mitigating it in the Cypress Swamp where it provides a very valuable ecosystem is of a greater benefit to fish and wildlife. He reported this site only provides for a place for rainfall to set and percolate. Mr. Young stated areas of wetlands that equate to approximately one-third of the site will remain in tact. Commissioner Boyle asked if Mr. Young would agree there is some value in isolated wetlands; whereby, Mr. Young agreed, but clarified that the size of the isolated wetland is an important part of the value as well as the adjacent uses. Commissioner Boyle stated that arguments for the value of isolated wetlands are to retain the trees, provide green space between developments, reduce urban sprawl, and help break brush fires. Mr. Tumbleson stated that Mr. Sean Daly, a member of the Development Review Board, made the point that the actions of the developer were compensatory, yet the Comprehensive Plan and Land Development Code implementing the policies describe the meaning of the word compensatory mitigation which is for replacement or to pay into the Development Opportunity Fund at the rate suggested. Mr. Tumbleson asked that a letter dated October 17, 1996, to Mr. Holub from Joe Jaynes, Environmental Engineer, and a memorandum dated May 15, 1998, from Clay Ervin, then Planning Director, be placed on record. Mayor Hood accepted the memorandum as part of the record. Mr. Tumbleson asked Mr. Denny if Policy 5.4.49 of the Conservation Element of the Comprehensive Plan allows 100% impact on certain isolated impacts associated with development of planned commercial development and office projects along major corridors within the City; whereas, Mr. Denny replied this is correct related to isolated Class 2, Class 3 and Class 4 wetlands. Mr. Tumbleson asked Mr. Denny if this property, with its proposed use, complies with the provisions of that statement. Mr. Denny answered it is his opinion that the property does comply with the provisions. Mr. Tumbleson asked if it were true that the Land Development Code, Section 12.11(B)(10), has implemented criteria for that policy. Mr. Denny concurred. Mr. Tumbleson stated that in Mr. Denny’s report to the Development Review Board and the City Manager for this meeting, those criteria were stipulated. Mr. Denny agreed. Mr. Tumbleson asked if Mr. Denny was familiar with the provisions of the above noted section; if they have been reviewed; and if it is Mr. Denny’s opinion that Section 12.11(B)(10) permits mitigation outside City limits. Mr. Denny indicated that these facts are stated in his staff report. Mr. Tumbleson asked if mitigation is required within the City limits; whereby, Mr. Denny replied it does not. Mr. Tumbleson asked that if a developer does not mitigate within the City limits, is there an alternative way of preserving or enhancing wetlands. Mr. Denny answered that the Development Opportunity Fund is a mechanism of preserving wetlands. Mr. Tumbleson asked if part of this application is an approval of the payment of the appropriate amount into the Development Opportunity Fund; whereby, Mr. Denny concurred that it was. Mr. Tumbleson asked if it is Mr. Denny’s opinion, as the Acting Director of Planning, that the proposed application complies with the requirements of Section 12.11(B)(10); whereby, Mr. Denny answered that it was. Mr. Tumbleson clarified that Section 13.01(P) of the Land Development Code is the section that provides for the Development Opportunity Fund, and Mr. Denny concurred. Mr. Tumbleson asked what is the fund per acre provided in this section. Mr. Denny stated that Mr. Holub’s fee is $3,890, but he was unsure of the per acre cost. Mr. Tumbleson stated that this fee was based on a mitigation of two (2) to one (1) one of less than one-half acre at $3,890 per acre. Mr. Denny stated $3,890 is a flat fee per acre or portion of an acre of impact. Mr. Tumbleson asked if reference was made to the Comprehensive Plan and zoning ordinances and if the proposed use of this property is consistent with these items; whereby, Mr. Denny replied it was. Mr. Tumbleson noted that pages 4 and 5 of the report specify certain findings and conclusions. He asked if Mr. Denny finds these findings true and correct. Mr. Denny agreed that these findings are correct. Mr. Tumbleson asked it if is Mr. Denny’s opinion that the proposed use complies with all requirements of the City of Ormond Beach Comprehensive Plan and Code of Ordinances. Mr. Denny replied it did, except for the comments as noted by the Site Plan Review Committee which do not relate to wetlands. Mr. Tumbleson asked if it is Mr. Denny’s opinion that the Development Review Board recommendation of denial is consistent with the City Comprehensive Plan and Ordinances. Mr. Denny replied the denial is not consistent. Mr. Paul Holub, applicant, stated in 1996 he annexed this property into the City of Ormond Beach at the urging of staff so that when the property was developed it would meet all the City requirements rather than those of the County. He stated he annexed into Ormond Beach in good faith, relying on the wetland ordinance in order to develop the property. Mr. Holub stated he signed a 100-year ground lease. He noted the contingencies on the ground lease have expired, and because of the wetland ordinance, he knew he would be able to develop the property. Mr. Holub stated he has worked on the development of the property, preparing a site plan, engineering and wetland management plan. He stated he has preleased the property and has a commitment to a tenant which needs to be delivered in February. Mr. Holub noted all the City requirements have been met or exceeded. Commissioner Persis indicated that the best scenario would be for the City to own land to preserve in this area to create greenspaces between businesses; however, he agreed Mr. Holub has complied with all the rules. Commissioner Persis questioned the appearance of the building. Mr. Holub stated the building will have glass door with tile embellishments on the front facade, with a style similar to the Dean Witter building recently completed. He suggested preserving property in the west since most of the City’s water comes from that area. Mr. Tumbleson stated it is clear this project complies with the City’s Comprehensive Plan and ordinances and that staff and the City Attorney have reported there is no option but to approve the project. He noted 42, United States Code, Section 1983, provides "every person who under color of any custom or usage of any state, subjects, or causes to be subjected, any citizen of the United States to the deprivation of rights secured under the Constitution of the United States shall be liable to the party injured," which is directed not just to the City, but with this warning in advance of taking action, runs to each Commissioner personally if they knowingly disregard the existing laws and ordinances and deny the request that is entitled, that Commissioner imposes personal liability which includes compensatory and punitive damages. Mr. James Privett, 215 Grove Street, member of the Planning Board, stated he has asked Mr. Denny for his interpretation or the actual State statute from the Department of Community Affairs concerning no net loss of wetlands in the State of Florida. Mr. Denny replied the State of Florida has reviewed Ormond Beach’s Comprehensive Plan policies and finds them in compliance with the State statutes. He advised he will obtain the statute for Mr. Privett’s perusal. Mr. Privett indicated that without this available, Ormond Beach may be in violation of State law by permitting this violation of the wetlands. Mr. Denny stated that the State has approved the change, and Ormond Beach does meet the statutes. Commissioner Persis moved, seconded by Commissioner Boyle, to close the public hearing on Item #8(D). The motion carried unanimously. RESOLUTION NO. 98 - 164
Commissioner Persis moved for approval of Resolution No. 98-164, as read by title only. Mayor Hood passed the gavel to Vice-Mayor Gillooly to second the motion. Commissioner Boyle stated it is clear there is a threat of a lawsuit, but he stands on the statements made at the beginning of this discussion that it is the right of every member of this Commission to read the Land Development Code and make a determination based on what they see there. Commissioner Boyle noted this is the reason this has been brought before the City Commission and not merely accepted by staff. He stated that if any member were to make their decision based on the threat of personal liability, the people of Ormond Beach would be poorly served. Commissioner Persis stated that after the City’s own Attorney advised the Commission what should be done legally, there should be no need to hear other attorneys. He stated he believes the Commission is legally obligated to approve the project. Commissioner Gillooly indicated he has problems with the project, and there is a great need to correct some elements of the Comprehensive Plan, but at this point he must rely on the City Attorney’s judgment. Commissioner Irvin indicated she has respect for the City Attorney and must comply with his decision. She stated she is troubled Ormond Beach has to be faced with these circumstances, yet it must be dealt with. Commissioner Irvin stated the recent fires should have opened the eyes of the public and the Commission to see there is a purpose for wetlands.
Item #8(E) - Amending the List of Specimen Trees Commissioner Persis moved, seconded by Commissioner Boyle, to close the public hearing on Item #8(E). The motion carried unanimously. ORDINANCE NO. 98 - 34
Commissioner Persis moved, seconded by Commissioner Gillooly, for approval of Ordinance No. 98-34, on second reading, as read by title only.
Item #8(F) - Granada/Bovard Streetscape Overlay District Mr. Denny stated there were inconsistencies created by the changes made by the Commission at the first reading in that there will be two (2) sets of colors being applied to buildings and signage. Mr. Denny noted staff recommends continuing this item to October 7th to readvertise and include the signage ordinance. Commissioner Boyle recommended amending the ordinance to grandfather all signage in the City that was approved and has been maintained and to set up a variance process either in the Development Review Board or the Board of Adjustments and Appeals. He stated with this provision, the signage colors and regulations previously recommended would be acceptable. Mayor Hood stated that if a motion is made to continue and passed, all Commissioner Boyle’s provisions would be included in the Ordinance at the meeting on October 7th. Mr. Hayes stated that since there are substantial deviations from the original ordinance, a readvertisement and two (2) more readings of the Ordinance would be required. Commissioner Boyle moved, seconded by Commissioner Gillooly, to continue this item to October 7, 1998, and to readvertise Ordinance No. 98-35.
Item #8(G) - Category 7, Airship Operations, at the Ormond Airport Commissioner Persis moved, seconded by Commissioner Boyle, to close the public hearing on Item #8(G). The motion carried unanimously. ORDINANCE NO. 98 - 36
Commissioner Persis moved, seconded by Commissioner Gillooly, for approval of Ordinance No. 98-36, on second reading, as read by title only.
Item #8(H) - Water and Sewer Rates Commissioner Persis moved, seconded by Commissioner Boyle, to close the public hearing on Item #8(H). The motion carried unanimously. ORDINANCE NO. 98 - 37
Commissioner Persis moved, seconded by Commissioner Gillooly, for approval of Ordinance No. 98-37, on second reading, as read by title only. Commissioner Boyle stated the 5% increase was triggered by the Nova Road widening, a $3 million project, and to fund unspecified future projects. He stated the future projects are imprecise. Commissioner Boyle noted these pipes are being moved a second time for a second widening project, and the Commission approved a $155,000 budget item for this purpose. He stated the bids came in at $300,000, but with staff being creative, the cost was reduced to $100,000. Commissioner Boyle explained that staff recommended the 5% increase alone, and no alternative was offered. He pointed out that the increase would double the Replacement Fund from $1.5 million to $3 million, which is a major policy decision made by staff, not the Commission. He stated the annual contribution to the Replacement Fund with this increase would be raised from $800,000 per year to $1.3 million per year, a 62% increase and 2½ times the money allocated for fiscal year 95-96 for that fund.. He stated he appreciates the three (3) year sunset adopted at the last meeting, but it does not address the problem of collecting too many extra dollars. Commissioner Boyle questioned the wisdom of saving huge reserve funds to earn interest. He recommended as an alternative a 2% increase to move the pipes and keep the reserve over $1 million. Commissioner Boyle made a motion, seconded by Commissioner Irvin, to table this rate increase for one year to obtain more precise information as to what kind of projects are needed and to discuss it again next year. Ms. Judy Sloane, City Engineer, stated only the first two (2) years of the five (5) year program are concentrated on, and the out year figures are softer. She stated staff is in final negotiations with a consultant to do an update to their Water and Sewer Master Plan which will give a very defined Capital Improvements Program for renewal and replacement. Commissioner Gillooly asked how long the master plan will take to be completed; whereby, Ms. Sloane stated it will be completed by March 1999, if the contract is approved in October. Mr. Miller pointed out there would be a substantial deficit by the Nova Road project alone, disregarding the out years of the Capital Improvements Project. Mr. Paul M. Lane, Finance Director, stated that by June 2000, regardless of the Master Plan, $3.2 million will be needed for renewal and replacement projects. Mayor Hood asked if it were not true that until the last few years Ormond Beach had not funded infrastructure on a rational accounting basis; whereby, Mr. Lane advised infrastructure was funded at a relatively low level as compared to depreciation.
Item #8(I) - Indian Springs Vacation Commissioner Persis moved, seconded by Commissioner Gillooly, to close the public hearing on Item #8(I). The motion carried unanimously. ORDINANCE NO. 98 - 39
Commissioner Persis moved, seconded by Commissioner Boyle, for approval of Ordinance No. 98-39, on first reading, as read by title only.
Item #9(A) - City and Coastal Florida Police Benevolent Association, Inc. Agreement RESOLUTION NO. 98 - 165
Commissioner Boyle moved, seconded by Commissioner Persis, for approval of Resolution No. 98-165, as read by title only.
Mayor Hood noted he voted no because of the reasons consistently stated regarding the pay plan. Item #9(B) - Step Plan for Nonbargaining Unit Classified Employees RESOLUTION NO. 98 - 166
Commissioner Gillooly moved, seconded by Commissioner Irvin, to continue this item. Mr. Miller explained this is not the General Employee contract, but the non-union employees of the City. Commissioner Gillooly withdrew his motion and Commissioner Irvin withdrew her second. Commissioner Persis moved, seconded by Commissioner Boyle, for approval of Ordinance No. 98-166, as read by title only. Mayor Hood clarified that this contract gives what was offered to the general employees to non-union employees unless governed by a written contract; whereby, Mr. Hayes concurred.
Item #10 - Minimum Landscape Requirements Mayor Hood explained the staff memo recommends no change in minimum landscape requirements and asked if anyone wished this to be placed on the next agenda for discussion. Commissioner Boyle explained that in 1996, the Commission relaxed the requirement for heavily wooded sites along the Granada Corridor upon a recommendation of the Economic Development Task Force, with staff opposing the rule change. He stated he believes this change negates the intent of the original language which encouraged development of buildings with smaller footprints in the greenbelt. Since that time, Commissioner Boyle noted, developers do not have to mitigate the trees removed for retention ponds. He stated that normally the greatest concentration of trees is on the lowest parts of the property. Commissioner Boyle reported the old rules helped to raise the standards in Ormond Beach, and recent developments that did not have to mitigate and constructed buildings with larger footprints show the error of this amendment. For these reasons, Commissioner Boyle stated he would like to discuss replacing the rules of three (3) years ago on the next agenda. Commissioner Boyle moved, seconded by Commissioner Gillooly, to consider minimum landscape requirements on the next agenda.
(See closing remarks by City Attorney, Item #12, relative to this issue.) Item #11 - Audience Comments On Agenda Items There were no audience comments. Item #12 - Reports, Suggestions, Requests Pesticide Use at Nova Recreation Commissioner Boyle thanked the City Manager for the report he provided on pesticides used at the Nova Recreation fields. He asked for a report on the use of Oftanol 2 and what precautions are being taken in its use in that the newspaper articles have made this a public issue. Commissioner Boyle asked to be assured that alternatives have been investigated. Mayor Hood asked this be placed on the next agenda. Taste of Ormond Food and Spirits Commissioner Boyle reported that on September 17,1998, the Taste of Ormond Food and Spirits will be held to raise funds for the Ormond Main Street organization. Fall Festival Commissioner Boyle noted that on October 3, and 4, 1998, the Fall Festival will be held at the Casements where a fireworks display will be part of the festivities. He stated this display is being provided as a thank you to the public employees who helped save the City in the firestorm, and also to the citizens who so graciously assisted in these efforts, complied with every request, and came forward with such an outpouring of help and donations. South Ormond Recreation Center Commissioner Irvin expressed appreciation to the City Commission and staff for the beautiful job accomplished on the South Ormond Recreation Center. Minimum Landscape Requirements Mr. Hayes explained that before the minimum landscape requirements ordinance comes back to the City Commission, it must go back to the Planning Board. Telecommunications Tower at Moss Point Mayor Hood requested a discussion be placed on the next agenda regarding the telecommunications tower at Moss Point. Item #13 - Close The Meeting The meeting was adjourned at 9:48 PM. |
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