TOWN OF MELBOURNE BEACH
MINUTES
TOWN COMMISSION
Special Meeting
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WEDNESDAY
March 3, 2004
COMMUNITY CENTER
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An special meeting of the Town Commission of the Town of Melbourne Beach, Florida was called to order by
Mayor Walters at 7:00 p.m. on Wednesday, March 3, 2004 in the Community Center. Mayor Walters also led the
Pledge of Allegiance
Present:
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Mayor Walters
Vice Mayor Guglietta
Commissioner Price
Commissioner Stacey
Commissioner Wilson
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Others Present:
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Town Attorney Gougelman
Interim Town Manager Taylor
25 members of the public
Town Clerk Masny
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I. DISCUSSION AND POSSIBLE ACTION REGARDING TOWN MANAGER SELECTION PROCESS.
Commissioner Stacey requested that this agenda item be moved to the end of the agenda. There were no
objections from the Town Commission.
II. DISCUSSION AND POSSIBLE ACTION REGARDING OBTAINING OUTSIDE LEGAL COUNSEL
REGARDING ADMINISTRATIVE APPEAL OF BUILDING OFFICIAL. (COMMISSIONER WILSON)
Commissioner Wilson stated that he would like the Town Commission to look into getting special counsel
for the Town as the Board of Adjustment has not had the experience of a request such as this and there are
funds in the budget for special counsel. Commissioner Wilson stated that he believes the Board of Adjustment
needs some guidance for this meeting.
Mayor Walters opened the meeting for public comment.
Attorney David Dyer, 325 Fifth Avenue, Indialantic came forward and stated that he represents Mr. Hamilton
and that he does not know where Commissioner Wilson has been, but he has known Mr. Gougelman to be a
municipal attorney for 20 years, and he has the expertise the Town needs regarding this appeal. Attorney Dyer
stated that the Town Code is clear as there is a 30-day window to appeal the actions of the Building Official and
that the building permit was issued in 1992, and we are well past 2 years. Attorney Dyer stated that any attorney
would say that this action would be barred by a limitations problem. Attorney Dyer stated that Town Attorney
Gougelman would be present to give advise to the Board and asked if this person would be to hired to assist
the people who are appealing to the board? Attorney Dyer stated that he thinks this is a conflict and strongly
suggested that this is not an appropriate request and that he believes the appeal does not have any merit to it.
Bill Hoskovec 526 Avenue B, asked Commissioner Wilson if he has been in touch with the attorney as there is
shaky ground ethically if he is looking for someone to represent his case and not the Town’s case. Commissioner
Wilson responded that he thinks the special counsel would be to assist the Board of Adjustment on this appeal
as Attorney Dyer believes they will be at the meeting for no reason and this special counsel should help direct
the meeting.
Fred Remark 707 Atlantic Street, commented that Commissioner Wilson is harassing and persecuting Mr.
Hamilton and using his seat as a Commissioner to do this, which is ethically and morally wrong. Mr. Remark
stated that the Town Attorney has already ruled that the Building Official was correct in what he did. Mr.
Remark stated that Commissioner Wilson has an obsession and is going to extremes with his own agenda
and not considering the residents and his obsession is being ruled by something other than logic. Mr. Remark
stated that anyone who has gone to and is cited for trespassing on private property by the Town police is not
thinking accurately. Mr. Remark stated that the codes are mute in view of the fact that Mr. Hamilton has a
building permit which means that the Town is saying just follow the rules and get inspections and you will
receive a certificate of occupancy and Commissioner Wilson is persecuting him, even though he has a valid
building permit and has violated no laws in contrast to Commissioner Wilson who is violating by trespassing
on private property and if you want to look to someone who is a criminal, look at Commissioner Wilson, not
Jack Hamilton.
Trish Riemer, 607 Riverside Drive asked if this attorney the Town is to hire to aid the Town’s attorney
representing the Town or the person filing the appeal? Commissioner Wilson stated that this person
would be of assistance to the Board of Adjustment. Ms. Riemer stated that the Town should not have
to pay two (2) people to represent the Town and the Mayor has been saying that we don’t have any
excess money in the budget. Ms. Riemer stated that for the betterment of this community, Commissioner
Wilson should seriously consider stepping down.
Mark Abraham 410 Atlantic Street, commented that he is one of the participants in the appeal brought
forward and if the Town feels it needs another attorney to help with the Board of Adjustment, that is the
Commission’s decision. Mr. Abraham stated that this is an area of specialty, and Mr. Gougelman does
not have this area of expertise and has made inappropriate, false and misleading statements to the
community through Town meetings such as “there is no longer a FEMA, our code is so grossly inadequate
that it does not include the Florida Department of Environmental Protection in the code and therefore, we
have a problem as a Town.” Mr. Abraham stated that the Town Code protects all members of the Town
and the Board will use it to decide the appeal. Mr. Abraham commented that the code gives two (2)
starting points for foundations: 18" above the crown of the road and FEMA. Mr. Abraham stated that
through FEMA, the Town will be required to file an elevation certificate to verify elevations. Mr. Abraham
stated that the appeal is being made because there are evident violations of the code.
Sara Renner 411 Oak Street thanked Commission Wilson for looking out for the interests of the public in
Melbourne Beach and commented that she feels that the Town has inappropriately defended a clear mistake
that has been made and that the height of buildings is an important issue in Town. Ms. Renner commented
that we have a clearly defined 28 foot height limit and we need to hold to the codes until such date as they
are changed. Ms. Renner commented that the Hamilton house has to do with the existing codes and no a
mount of intimidation should cause the Town to vacillate on something that is already written in black and
white. Ms. Renner commented that as a resident, it is reasonable to hire an objective attorney.
Mayor Walters asked what the Town Attorney’s role is regarding the Board of Adjustment and the appeal
process. Commissioner Price stated that it is to clarify legal points and the code we now have will determine
the outcome of this issue and that the Town should let the Board of Adjustment do their job, they will hear
the facts and do their job.
Vice Mayor Guglietta stated that he has confidence in our Town Attorney and feels that this has gone on too
long, since 2002, and the Building Official was hired around 10 years’ ago. Vice Mayor Guglietta commented
that he was invited and visited the Hamilton house and asked where does the roof actually start because there
are three (3) different heights of roofs and he did not get an answer to the question. Vice Mayor Guglietta
commented that the house is over the limit, but it was approved by the Building Official and the Town
Commission will be reviewing a draft height ordinance that will clear up some of the interpretation issues.
Mayor Walters stated that he understands that Commissioner Wilson wants expert council and if a special
counsel has more expertise than the Town Attorney, and is an expert in our code and if the Town could
benefit from his expertise, he would have no objection. Mayor Walters asked Town Attorney Gougelman
what his role is in this appeal hearing? Town Attorney Gougelman stated that his role is to represent the
Board of Adjustment and he becomes the Board’s attorney and will not be defending the Building Official’s
decisions nor supporting Mr. Hamilton’s position or the appellant’s position. Town Attorney Gougelman
stated that his position is to assist the Board of Adjustment with procedure or the law of zoning or land use.
Town Attorney Gougelman stated that the Town could have two (2) attorneys, one to represent the Board
and one to represent the Building Official.
Commissioner Wilson stated that he listened to the tape when the Hamilton case came before the Board
of Adjustment for a variance from the coastal setback line and stated that it was, as usual, the three (3)
tag team match, Attorney Dyer, Mr. Hamilton and Mr. Menzel and Attorney Gougelman may be a fine
municipal lawyer, but may not be a match for them because as soon as a decision is made, this will be
over. They will run the show and we do not have a trial attorney and that he is asking that we have an
even-playing field for the Board of Adjustment as things were accomplished based on promises and
the Town should give them a fighting chance by giving them the skills and he feels we have this special
counsel money set aside for this purpose, to give them a fair chance.
Commissioner Price stated that if the Board of Adjustment’s decision is not favorable to either side, is
there a right to appeal? Town Attorney Gougelman stated that if any of the participants in the proceeding
are disheartened by the determination, an appeal can be filed in circuit court. Attorney Gougelman stated
that this issue is becoming more and more emotional and as people see the direction this is going, they
will be more willing to go to court and suggested if the appellants are successful, you will see a full frontal
assault from Mr. Hamilton. Town Attorney Gougelman explained the process if an appeal is made.
Mayor Walter stated that he has confidence that the Town Attorney can defend the Town Code that
Commissioner Wilson does not have the information regarding any expert attorney and in three (3)
weeks the Town will need to find this person and get them up to speed on this situation.
Vice Mayor Guglietta suggested that the Town Commission authorize Commissioner Wilson to find
an attorney. Mayor Walters commented that the Town Manager would look into special counsel if
it is necessary, not any member of the Town Commission.
COMMISSIONER WILSON MOVED, SECOND VICE MAYOR GUGLIETTA TO HAVE THE TOWN
MANAGER LOOK INTO SPECIAL LEGAL COUNSEL TO ASSIST THE BOARD OF ADJUSTMENT
ON THE MARCH 25, 2004 MEETING CONCERNING THE HAMILTON HOUSE APPEAL.
VOTE: AFTER DISCUSSION, COMMISSIONER WILSON, AYE. COMMISSIONER STACEY, NAY.
COMMISSIONER PRICE, NAY. VICE MAYOR GUGLIETTA, NAY. MAYOR WALTERS, NAY.
MOTION DEFEATED.
Attorney Dyer stated that Commissioner Wilson is trying to get a hand-picked lawyer to get the Board of
Adjustment to stop this house, which is something the Town Commission has been unwilling to do.
Mayor Walters asked Interim Town Manager Taylor for his recommendation to the Town Commission on this matter.
Interim Town Manager Taylor commented that he is not confident he would go out and find an attorney in
Brevard County and has been through a variety of appeals and that the Town Attorney has described the
appropriate role he is to play as he has the expertise to appropriately represent the Board of Adjustment
at the meeting.
Mr. Hamilton commented that at this appeal, there are two (2) parties the appellants who file the appeal
and the Town of Melbourne Beach and Commissioner Wilson wants the Town to hire an attorney to
represent the interests of the people who have filed an appeal against the actions of the Town, this
is a conflict of interest. Mr. Hamilton stated that he is keeping a record of Commissioner Wilson’s
activities and a lot of them are criminal in nature, including violation of Sunshine Laws.
Susie Stark, 307 Fifth Avenue commented that she has a concern that the Town Commission appoints
members to the Board of Adjustment and they are a quasi judicial board and if they feel they need
special counsel, they should approach the Town Manager and ask for special counsel.
Mark Abraham, 410 Atlantic Street commented that he and Mr. West believe that the Board of Adjustment
is going to be very capable in assessing the information that is brought forward and are not asking for
special counsel, but it may be a good idea because it may offer objectivity so that neither party can
claim that there was subjectiveness in the decision making.
III. DISCUSSION AND POSSIBLE ACTION REGARDING INITIATING INITIAL STEPS IN OBTAINING
ATLANTIC STREET BEACH ACCESSES. (COMMISSIONER WILSON)
Commissioner Wilson stated that recently, the beach access near Sunset Boulevard and Beaujean has
recently had “no trespassing” signs installed and the public in this area have been using the access for
40 years without much hindrance from these types of signs and the homeowners group has a corporation
named Ocean Paths and they own the crossovers and do the upkeep of these. Commissioner Wilson
stated that he has had the police called on him for using these paths and was advised that these signs
are non-enforceable and he would like to see the deed showing ownership of the property and if these
are easements. Commissioner Wilson asked how the homeowners association made these private
accesses as he would like to see people use these paths as they have for the last 40 years.
Tom Ressicar stated that his family owns property at 302 Sunset Boulevard and that he has been a
licensed practicing attorney for over 33 years and represents Ocean Path and has served on its Board
of Directors. Attorney Ressicar stated that the lots were conveyed in 1956 by Mr. Beaujean who conveyed
it to the property owners in that subdivision. Attorney Ressicar stated that there is no easement and over
the years there have been practices of posting the no trespassing signs to keep people out and keep them
private in nature. The paths are an enhancement to the properties and any action to condemn those lots
will be a waste of time and money as this will affect some 35 homes. Attorney Ressicar stated that one
reason the signs were put there is because people park on the right-of-way and cause a hazard.
Randy Carmichael, 609 Alden Place, President of Ocean Path Corporation commented that Don and Helen
Beaujean deeded the property consisting of the two (2) 10-foot beach path easements. Mr. Carmichael
stated that the neighbors have erected no trespassing signs on the property numerous time over the 47
some years and he has also posted the signs on more than one occasion at the beach accesses to help
comply with the rights and responsibilities of the owners and to protect people from unknowingly violating
private property. Mr. Carmichael noted that the Corporation meeting minutes reflect discussion regarding
the signs and stated that he has never known of any controversy involving the use of the paths by people
who might not be residents. Mr. Carmichael stated that the Corporation is charged to maintain, in
perpetuity, those two (2) beach path easements for the benefit of the 37 homeowners who comprise
Ocean Paths Corporation and the police department has been provided a copy of the charter. Mr.
Carmichael asked Commissioner Wilson, what motivated him to initiate initial steps in obtaining
Atlantic Street Beach Access if this was directed at these 2 paths?
Commissioner Wilson stated that he wanted to come to some understanding to see what the corporation’s
position is on this as it relates to people not in the subdivision and asked if the signage is because of a
change of attitude? Mr. Carmichael stated that he is willing to supply the Town with information regarding
the paths but this agenda item appears to be a run at ownership of private property. Mr. Carmichael stated
that he indicated to Commissioner Wilson during a previous discussion that it is his opinion, the best way
to resolve the controversy between himself and Mr. Hamilton is for all parties to be reasonable and continue
to act in a non-confrontational manner and was reminded by Commissioner Wilson that his controversy with
Mr. Hamilton was not personal in nature.
Mr. Carmichael stated that Commissioner Wilson asked if there was a guest privilege and was advised that
the Charter calls for the maintenance of the property for the use and enjoyment of members and guests and
Commissioner Wilson asked if a resident in the subdivision gives permission for others to use the path would
it be okay? Mr. Carmichael responded that as far as he was concerned it would be okay, but he cannot speak
for the other homeowners because the question has not been posed in a meeting.
Mr. Carmichael stated that he has made a reasonable suggestion regarding a non-confrontational and neighborly
approach to the use of the paths and if Commissioner Wilson finds someone willing to give permission to use
them as a guest this would be a good solution. Mr. Carmichael stated that, in his opinion Commissioner Wilson
is using his position to obtain private property because he was warned not to trespass.
Mayor Walters stated that he contacted Mr. Carmichael because the people have used these accesses for
years and are afraid to use them now, as the accesses were not posted prior and now they are. Mayor
Walters asked if the public safety personnel are allowed to use these paths? Mr. Carmichael responded
that the charter calls for the use of the paths by members of the corporation and their guests and we have
never been challenged to define a guest and it is not his desire to do so. Mr. Carmichael state that emergency
response personnel have the right to cross private property in the pursuit of public safety any time they need to.
Mayor Walters stated that it was his understanding that no one can use the paths except the 37 homeowners.
Mr. Carmichael stated that they have not taken this position.
Mayor Walters asked for public comment regarding this agenda item.
Sara Renner, 411 Oak Street commented that this is silly as there are two (2) perfectly good public beach
access points at Avenue A and Avenue B and everybody knows that if the police need to go through private
property they can do so. Ms. Renner stated that she does not hold Commission Wilson or Mr. Hamilton
responsible for this, it has all gotten blown out of proportion and we have wasted tremendous hours
deliberating a point that the Town Commission should have held the inspector to from the beginning,
there is a 28 foot limit and these vendettas have grown out of a mistake that the Town has made.
Ms. Renner asked that the Town Commission not even consider the paths.
Fred Remark, 707 Atlantic Street commented that Commissioner Wilson was caught on this path taking
pictures and doing things he should not do and should be cautioned. Mr. Remark commented that he has
used these path for over 20 years and nobody ever cared who used them until Commissioner Wilson as
he is using his chair to follow a personal vendetta against the people who live in this subdivision. Mr.
Remark stated that these paths do not need to be purchased by the Town and stated that “guest” means
a live-in in a house in the Beaujean subdivision.
Commissioner Wilson stated that the intent was to find out what is taking place at these paths and if the
people in the Sunset Bay subdivision and River Colony subdivision are going to be excluded from using
these paths as they have done for virtually since recent history.
Commissioner Price stated that the paths have been used for years and years, but the fact is these paths
are private property and it is not a pressing issue for the Town to find a way to acquire these paths.
Commissioner Price commented that the corporation members hold the rights to the private property
and have indicated, up until now, that they have not had a problem with people from the community
using the accesses. Commissioner Price commented that the president of the corporation indicated
that he does not have a problem with permission being given by the members of the ownership group
who are members of the corporation to their guests and we should leave it at this.
Mayor Walters commented that from what he understands from Mr. Carmichael, if you get permission
from a homeowner, you can use path.
Commissioner Stacey stated that his granddaughters use the path and asked if he now needs to ask
permission for his granddaughters to use path? Mr. Carmichael responded that speaking as one individual
homeowner, he has no problem with them using the path.
Mayor Walters called for a break at 8:58 p.m. and called the meeting back to order at 9:05 p.m.
IV. DISCUSSION AND POSSIBLE ACTION REGARDING DRAFT ORDINANCE REGARDING AMENDING
CURRENT ZONING CODE - HEIGHT CALCULATIONS. (VICE MAYOR GUGLIETTA)
VICE MAYOR MOVED, SECOND COMMISSIONER STACEY TO EXTEND THE MEETING UNTIL 9:35 P.M.
VOTE: ALL AYES. MOTION CARRIED.
Commissioner Guglietta stated that due to the fact that Commissioner Price is not feeling well at present
time due to auto accident, he would like to make a couple of points regarding the draft ordinance and hold a
workshop to discuss it.
Mayor Walters stated that it is his understanding that this ordinance is a draft and will go to the Planning
and Zoning Board for review and public comment and then it will come to the Town Commission.
Interim Town Manager Taylor stated that the Planning and Zoning Board will hold a public hearing on the
ordinance on April 5, 2004. Town Attorney Gougelman stated that this is a draft and he and the Town
Manager have made some revisions today and this draft is a work in process.
Mayor Walters opened the meeting for public comment regarding this agenda item. There were no comments.
V. DISCUSSION AND POSSIBLE ACTION REGARDING UPDATING THE TOWN
CHARTER. (VICE MAYOR GUGLIETTA)
Vice Mayor Guglietta stated that most of his questions will be directed to the Town Attorney and stated
that there are areas that need to be corrected in the Town Charter and these must be put on the ballot for
electors to vote on and asked Town Attorney Gougelman what should the Town Commission do regarding
points that need to be updated?
Town Attorney Gougelman responded that if the Town Manager or Town Commission directs him to draft
something for discussion purposes, he will be glad to. With regard to the issue of when we should
workshop this and the such, it has to go on the ballot and the Town can do a mail ballot election at
any time or put the changes on the November ballot. If the November election is the time, the Town
will need the ordinances finalized and ballot language in good shape by August and the latest date
would be June for the workshops. Vice Mayor Guglietta asked if every change to the Town Charter
will have to be acted upon in a separate motion? Town Attorney Gougelman responded that if the
Town Commission decides to workshop this, you will need a consensus of the changes to go on
the ballot and one or more ordinance will need to be developed as you cannot lump together disparate
subjects, you have to use the single-subject rule and each ballot question has to relate to one item.
Vice Mayor Guglietta asked that the Town Commission direct the Town Manager and Town Attorney
to begin looking at the areas of the Charter he is looking at changing, which he will review with them.
VI. PUBLIC HEARING:
RESOLUTION NO. 732
A RESOLUTION OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA RELATING
TO NOMINATION FOR CITY ATTORNEY OF THE YEAR; MAKING FINDINGS; COMMUNICATING THE
NOMINATION TO THE FLORIDA LEAGUE OF CITIES OF PAUL GOUGELMAN AS CITY ATTORNEY OF
THE YEAR; AND PROVIDING AN EFFECTIVE DATE. (COMMISSIONER PRICE)
Mayor Walters read Resolution No. 732 in its entirety and asked for public comment regarding this agenda
item. There were no comments from the public.
COMMISSIONER PRICE MOVED, SECOND COMMISSIONER STACEY TO ADOPT RESOLUTION 732
RESOLUTION OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA RELATING TO
NOMINATION FOR CITY ATTORNEY OF THE YEAR; MAKING FINDINGS; COMMUNICATING THE
NOMINATION TO THE FLORIDA LEAGUE OF CITIES OF PAUL GOUGELMAN AS CITY ATTORNEY
OF THE YEAR; AND PROVIDING AN EFFECTIVE DATE.
VOTE: ALL AYES. MOTION CARRIED.
VII. AWARD OF PHASE II BID FOR TELECOMMUNICATION SERVICES FOR
THE TOWN OF MELBOURNE BEACH IN THE AMOUNT OF $7,492.87 TO ARTEMIS INTERNATIONAL
TECHNOLOGY SERVICES, INC.
Interim Town Manager Taylor stated that he discussed this with the Town Commission at the last meeting
and advised that when the bids for Artemis for the telephone system came in it was in two (2) phases, with
phase I being the Police Department and the Commission needs to accept Phase 2, which will be the
remaining department.
Commissioner Price asked if this will complete the communications system for the new buildings? Interim
Town Manager Taylor responded that it will.
VICE MAYOR GUGLIETTA MOVED, SECOND COMMISSIONER STACEY TO AWARD PHASE II BID FOR
TELECOMMUNICATION SERVICES FOR THE TOWN OF MELBOURNE BEACH IN THE AMOUNT OF
$7,492.87 TO ARTEMIS INTERNATIONAL TECHNOLOGY SERVICES, INC.
VOTE: ALL AYES. MOTION CARRIED.
I. DISCUSSION AND POSSIBLE ACTION REGARDING TOWN MANAGER SELECTION PROCESS.
Mayor Walters stated that the Town Commission has interviewed candidates for the Town Manager
position on two (2) separate dates and now we need to select an additional two (2) finalists to call back
for an interview as Mr. Lewis will be called back for a second interview from the first group.
It was discussed to rate the second group of candidates from 1 to 4, with number 1 to be the highest
and that Mr. Lewis from the first group and two (2) additional from tonight will be called back for a
second interview. (Town Clerk Masny read the rating results into the record sheets attached)
VICE MAYOR GUGLIETTA MOVED, SECOND COMMISSIONER STACEY TO CALL BACK ROBERT LEWIS,
W.D. HIGGINBOTHAM, JR. AND JANICE ROBERTS FOR A SECOND INTERVIEW REGARDING THE
TOWN MANAGER POSITION.
VOTE: ALL AYES. MOTION CARRIED.
VIII. ADJOURNMENT
VICE MAYOR GUGLIETTA MOVED, SECOND COMMISSIONER STACEY TO ADJOURN.
VOTE: ALL AYES. MOTION CARRIED.
The special meeting of the Town Commission of the Town of Melbourne Beach, Florida adjourned at 9:35 p.m.
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STEVEN O. WALTERS, MAYOR
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CYNTHIA E. MASNY, CMC
TOWN CLERK
Note: a mechanical recording has been made of the foregoing procedures of which these minutes are a
part and is on file in the office of the Town Clerk.
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