TOWN OF MELBOURNE BEACH
MINUTES
TOWN COMMISSION - Regular Meeting

WEDNESDAY
June 15,  2005
6:30 p.m.
COMMUNITY CENTER

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The Town Commission of the Town of Melbourne Beach, Florida met in regular session on 
Wednesday, June 15, 2005 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m.

Mayor Stacey called the meeting to order and offered the invocation. The entire assembly recited the 
Pledge of Allegiance to the Flag.

Present:

Absent: 

Mayor Stacey
Vice Mayor Wilson
Commissioner Walters
Commissioner Price
Commissioner Guglietta (on vacation)

Others Present:  

Town Manager Higginbotham
Town Attorney Paul Gougelman
Interim Town Clerk Karan Rounsavall

Commissioner Price moved to approve the minutes of regular meeting May 18, 2005 and workshop meeting June 1, 2005 as 
submitted. Vice-Mayor Wilson seconded the motion and it carried unanimously.

Consent Agenda Item A, being the town manager’s employment agreement, was moved to Old Business. Vice-Mayor Wilson moved 
to approve consent items B, C, and D in accordance with the following recommendations:

B.      Request from the Brevard Mosquito Control District for permission to conduct aerial spraying for mosquitoes over Melbourne 
         Beach in accordance with Federal Aviation Regulations. Recommendation: Authorize town manager to provide appropriate 
         written approval to Mosquito Control.

C.      Residential site plan review for 205 Elm Street as requested by Carol Crispen, owner. Recommendation: The Planning and 
         Zoning Board recommended approval.

D.      Residential site plan review for 410 Riverview Lane as requested by William and Kristi Joyner. Recommendation: The Planning 
         and Zoning Board recommended approval.

Commissioner Price seconded the motion and it carried on an all aye vote.

Non Scheduled Citizen Comments Mike Lesser read a letter written by Thomas Downs of the Down Corporation regarding the 
positive effects of property entitlements on single-family dwellings. It was Mr. Downs’ professional opinion that if the building height 
in Melbourne Beach was raised to 38 feet, this would have an immediate and positive effect on property values for single-family 
home owners.

Laurie Domesky related concerns she had with numerous college students living in a rental house next door to her home. Town 
Manager Higginbotham advised this matter was scheduled to go before the Code Enforcement Board as soon as the Board was 
able to engage legal services. Attorney Gougelman advised that federal legislation (i.e. Fair Housing Act) might hinder the town’s 
ability to regulate non related persons occupying the same dwelling. Commissioner Walters suggested that a letter to the owner 
might result in quick action without resorting to legal remedies. The town manager would get back with Ms. Domesky as soon as 
there was something to report.

Ron Gallagher followed up on the previous speaker’s comments. He felt that allowing homes with greater square footage encouraged 
greater occupancy.

Frank Cariou commented on a letter circulated to all town residents by Mike Lesser regarding limitations on the height of single-family 
homes and encouraging residents to contact their commissioners about preserving property rights. Mr. Cariou supported a building 
height limitation of 28 feet.

Gail Gowdy was informed that the town manager currently served as the code enforcement officer. She also supported the building 
height limitation of 28 feet and the current method of notifying the public of pending ordinance changes within the town.

As to code enforcement, Commissioner Walters supported this as a function of the police department and suggested that the tenth 
police officer recently hired perform code enforcement activities on a part-time basis. Commissioner Price felt that the town’s current 
problems with code enforcement could be traced back to last year’s budget process and the commission’s decision to roll back the 
millage rate. He was concerned that there was insufficient staff to meet the needs of a growing community. There seemed to be a 
cry of urgency on every issue. Tax increases would be needed to meet these needs. Commissioner Walters disagreed completely 
with Commissioner Price’s commentsand did not feel that the town was understaffed. The town was currently $3 million in debt. He 
did not support an increase in taxes.

At the request of Mark Abraham, Attorney Gougelman provided a historical perspective of the height limitation at its current 28-foot 
level. Recognizing that over the years architectural design had changed and roofs had greater pitch, an ordinance was drafted to 
allow the height of a single-family dwelling at 35 feet, which was consistent with height regulations in unincorporated Brevard County 
and the City of Melbourne. This ordinance was turned down by the Planning and Zoning Board.

T. McKee was concerned not so much about the appropriateness of the 28-foot height limitation but that this regulation was enforced 
by town officials. 

Alice Graham supported the 28-foot building height limitation and would be happy to see this issue placed on the ballot in November. 
She also offered to volunteer in town hall. Mayor Stacey asked the town manager to contact Ms. Graham as to her offer.

Lynnette Fodor supported the 28-foot building height limitation.

Martha Remark provided a historical perspective on building inspectors in the Town of Melbourne Beach. She felt that the town 
needed its own official with building knowledge.

Jim Simmons felt that he received good value for the taxes he paid to the town. As to the 28-foot building height limitation, he 
saw no reason to change it.

D.X. Ross felt that an elegant home could be built at the 28-foot building height limitation. 

Mike Lesser pointed out that the intent of his June 1, 2005 letter was to inform the town and allow residents the opportunity to 
vote on how high they wanted structures within the corporate limits. He also supported notices of ordinance changes mailed to 
individual homes rather than newspaper ads.

Xochitl Ross thanked Dr. Lesser for being straight forward in his letter to residents regarding the height limitation. She also felt 
that the question should be put before the electorate.

Boards and Committees Williams Building Ad Hoc Committee – the terms of resident members Sheryl Alberga, Betsy Baird, 
Ann Downing and Laurie Simmons expired on May 19, 2005 as well as non resident members Paula McNutt and Esther Zimmer. 
Non resident member Paula McNutt did not wish to be reappointed; all other members desired reappointment. Additionally, the 
town clerk’s office was in receipt of a board application from Steven Doles who wished to serve on the Williams Building Committee.

The terms of all members currently serving on the committee expired on May 19, 2005. In the past, terms had only been extended 
for one year at a time. Given the fact that this committee was to sunset in 2006, it was recommended that all terms be extended 
through December 31, 2006 to eliminate the necessity of reappointment in 2006 for just six months.

Commissioner Walters moved to reappoint resident members Sheryl Alberga, Betsy Baird, Ann Downing, and Laurie Simmons 
and non resident member Esther Zimmer for terms expiring December 31, 2006 coincident with the sunset of the Williams Building 
Committee. Commissioner Price seconded the motion and it carried unanimously. Commissioner Price then moved to appoint Steven 
Doles as a resident member for a like term. Vice-Mayor Wilson seconded the motion and it carried.

Board of Adjustment – The term of Xochitl Ross on the Board of Adjustment expired on June 20, 2005. Ms. Ross had an excellent 
attendance record and had expressed a desire to be reappointed. This was a commission appointment for a three-year term that 
would expire June 20, 2008. There were no applications on file for this board. Commissioner Walters moved to reappoint Xochitl 
Ross for a three-year term expiring June 20, 2008. Member Price seconded the motion and it carried unanimously.

The Town Commission was in receipt of Collin Campbell’s resignation from the Planning and Zoning Board effective immediately. 
Mr. Campbell’s term expired July 16, 2006. There were no applications on file for this board, however, Tom Youngblood and Gail 
Gowdy currently served as alternate members #1 and #2 respectively. Both were eligible for appointment as a regular member.

Commissioner Price moved to accept Mr. Campbell’s resignation with regret. Vice-Mayor Wilson seconded the motion and it 
carried. Commissioner Walters then moved to appoint Tom Youngblood (alternate member #1) to fulfill the remainder of the vacated 
term expiring July 16, 2006. Commissioner Price seconded the motion and it carried on an all aye vote. (Note: There was currently 
a vacancy for an alternate member.) Commissioners noted the need to solicit additional applications for the Planning and Zoning Board.

The Town Commission went on to receive reports from the town’s boards and committees. Member Mike King reported on the 
Planning and Zoning Board’s June 6, 2005 regular meeting. By a split vote (3 to 2) the Board voted to recommend approval of 
the ordinance setting forth a referendum for a charter amendment providing that all rezonings within the town were to be subject 
to a vote of the electorate. Members voting in opposition to this recommendation felt that the Town Commission would be more 
knowledgeable in voting on rezoning issues than the general public. He also mentioned that the Board wished to schedule a joint 
session with Lawandales and Associates to discuss the town’s comprehensive plan. Member King went on to mention an inconsistency 
in the Town Code as it related to chimney height and asked for direction. By consensus, the Town Commission directed that the 
Planning and Zoning Board review this issue at its next regular meeting and forward a recommendation.

Chairman Joy Campbell of the Parks Board reported on plans for a Fourth of July Celebration in the Park and mentioned the possible 
need for additional police protection at the event. There would be food prepared by the Fire Department, a band, and perhaps a 
watermelon spitting contest. Founders Day t-shirts would be available for sale at the Fourth of July Celebration as well. The 
Parks Board was also looking at goals which included designating a set number of events to host in the park each year as well 
as permanent signage for various events. Ms. Campbell announced plans for future events and activities including a swing dance 
in September.

The Chairman requested clarification from the Town Commission on what it expected from the Parks Board. The need for better and 
timelier communication between the Town Commission, town staff, and the Parks Board was mentioned. Ms. Campbell 
reminded the Commission that the Parks Board was made up of volunteers. Vice-Mayor Wilson suggested a workshop 
meeting with the Parks Board.

There was a loss of decorum at the meeting following a brief but intense discussion concerning the level of authority that the 
Town Commission had granted the Parks Board and staffing levels. As a result, the meeting recessed at 8:11 and reconvened 
at 8:20 p.m.

Martha Remark, Chairman of the Historical Preservation and Awareness Board, updated the Town Commission on the board’s 
last meeting. One of the suggestions received during Founders Day was that the town consider a referendum to levy a historic 
preservation tax. She also asked whether or not the board’s correspondence needed Town Commission approval prior to being 
mailed. Mayor Stacey advised her to forward everything to the town manager. The mayor also passed along his appreciation to 
the history board for its efforts.

Public Hearings The first item was Ordinance No. 1-2005 setting forth a referendum election and ballot language for the 
November 8, 2005 general election to amend the Town Charter by providing that no property within the town shall be rezoned 
with approval of the electorate. The Planning and Zoning Board, acting as the Local Planning Agency, recommended approval 
on a three yes, two no vote at its regular meeting on June 6, 2005.

Attorney Gougelman read ORDINANCE NO. 1-2005 OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA 
RELATING TO ZONING; MAKING FINDINGS; PROVIDING FOR A REFERENDUM ELECTION AND BALLOT LANGUAGE; 
CREATING SECTION 6.06, TOWN CHARTER, TO PROVIDE THAT NO PROPERTY WITHIN THE TOWN SHALL BE REZONED 
FROM ONE ZONING DISTRICT TO ANOTHER ZONING DISTRICT WITHOUT REFERENDUM APPROVAL OF THE TOWN 
ELECTORATE; PROVIDING FOR COORDINATION WITH THE SUPERVISOR OF ELECTIONS; PROVIDING A SEVERABILITY 
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE the second time by title only.

Commissioner Walters moved for adoption. Vice-Mayor Wilson seconded the motion. There was no commission discussion 
at this time.

The public hearing was opened. Martha Remark asked whether down zoning to a less intense use would need to follow the 
referendum process. Attorney Gougelman explained that the legislative intent of the ordinance was that a rezoning request 
would follow the normal course of processing and if it made it past the Town Commission successfully, then it would be 
presented to the electorate. Down zoning was certainly possible, however, the owners would be in position to successfully 
sue the town for a taking. Commissioner Price felt that elected officials were to represent the people.

Jim Simmons asked what the town would do to educate voters when a rezoning was presented for a vote. In such cases, he 
wanted to see objective information distributed to everyone.

Xochitl Ross asked what the Town Commission hoped to accomplish through this ordinance and whether or not a rezoning 
had ever gone to a vote of the people in the past. Commissioner Walters explained that pursuant to this ordinance, the electorate 
would decide a rezoning issue, not the Town Commission.

Mark Abraham urged caution in proceeding with this ordinance. If this process was put into place, it would make it very difficult 
and time consuming to rezone a piece of property. As an alternative, he suggested improving the public participation process 
before a rezoning decision reached the Town Commission for a vote.

Mike Lesser agreed with the previous speaker’s comments and spoke in opposition to the proposed ordinance.

Gail Gowdy spoke in favor.

No one else wished to speak and the public hearing was closed.

Commissioner Price moved to table this item because Commissioner Guglietta was not present. Vice-Mayor Wilson seconded 
the motion. Upon query by the town attorney, Commissioner Price clarified that the intent of his motion was to “lay the item on 
the table until the Commission brought it back.” 
The motion carried with Commissioner Walters voting no.

Next was first reading and first public hearing on Ordinance No. 2-2005 amending Land Development Code by expanding the 
definition of a “bed and breakfast” establishment by specifically excluding resort condominiums and time shares.

Attorney Gougelman read ORDINANCE NO. 2-2005 OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA 
RELATING TO ZONING; MAKING FINDINGS; AMENDING SECTIONS 1A-3, 7A-36 AND 7A-50, APPENDIX A, TOWN CODE; 
PROVIDING DEFINITIONS FOR BED AND BREAKFAST INN, HOTEL, AND MOTEL; PROVIDING THAT BED AND BREAKFAST 
INNS ARE A CONDITIONAL USE IN THE 6-B ZONING DISTRICT PERMITTED BY SPECIAL EXCEPTION; PROVIDING OFF-STREET 
PARKING REQUIREMENTS FOR A BED AND BREAKFAST INN; PROVIDING FOR SEVERAB ILITY/INTERPRETATION; PROVIDING 
FOR REPEAL OF ORDINANCES AND RESOLUTIONS INCONSISTENT HEREWITH; AND PROVIDING AN EFFECTIVE DATE 
the first time by title only.

At its regular meeting on May 18, 2005, the Town Commission directed the preparation of an ordinance further defining a bed a 
breakfast establishment by specifically excluding resort condominiums and time shares from said definition. The amendment 
was initiated at the request of Vice-Mayor Wilson.

Vice-Mayor Wilson moved for approval upon first reading. Commissioner Walters seconded the motion.

Mayor Stacey opened the public hearing. Ron Gallagher asked whether or not this ordinance would affect short-term rentals within 
the town. It would not. No one else wished to speak and the public hearing was closed.

The motion carried. Second reading and final public hearing was scheduled for July 20, 2005.

Old Business At its May 18, 2005 regular meeting, the Town Commission directed staff to proceed as necessary to correct 
deficiencies associated with the installation of swales and exfiltration trenches to improve the quality of stormwater entering 
the Indian River Lagoon from the drainage basin served by the Oak Street Pedway Project. Town Manager Higginbotham was 
in receipt of a proposal from C & D Construction to correct the deficiencies associated with the exfiltration ditches for $15,750, 
however, it was his recommendation that this work not commence until the St. Johns River Water Management District concurred 
with the amended scope of work. C & D Construction performed the original work on the Pedway Project.

It was the consensus of the Town Commission to authorize the town manager to execute an agreement with C & D Construction 
to make the necessary corrections to the exfiltration component of the Pedway Stormwater Improvement Project with the understanding 
that work would not commence until the St. Johns River Water Management District concurred with the amended scope of work.

Next was the first amendment to the employment agreement between the Town of Melbourne Beach and Town Manager W. D. 
Higginbotham, Jr.  The agreement included those changes that were approved by the Town Commission following a special 
meeting on the subject on June 1, 2005. Attorney Gougelman stated that the town manager was seeking a final vote by the 
Town Commission on his employment agreement prior to having his personal attorney review it on his behalf. It was noted 
that discussions on the agreement began in January 2005.

Commissioner Price moved to approve the first amendment to the employment agreement as presented. Vice-Mayor Wilson 
seconded the motion and it carried unanimously.

New Business First reading of Ordinance No. 3-2005 setting forth a referendum election and ballot language for the 
November 8, 2005 general election to amend the Town Charter by limiting the height of structures in Melbourne Beach 
to no more than 28 feet (in line with the recently adopted height ordinance). The Town Commission directed the attorney 
to draft this ordinance at its regular meeting on November 17, 2004.

Attorney Gougelman read ORDINANCE NO. 3-2005 OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, 
RELATING TO BUILDING AND STRUCTURE HEIGHT LIMITS; MAKING FINDINGS; PROVIDING FOR A REFERENDUM 
ELECTION AND BALLOT LANGUAGE; CREATING SECTION 6.07, TOWN CHARTER, TO PROVIDE THAT NO STRUCTURE 
OR BUILDING SHALL EXCEED TWENTY-EIGHT FEET IN HEIGHT IN THE 1-RS, 2-RS, 3-RS, 4-RM, AND THE 5-RMO 
ZONING DISTRICTS; PROVIDING THAT HEIGHT SHALL BE CALCULATED AS PROVIDED IN ORDINANCE NO. 2004-01, 
TOWN OF MELBOURNE BEACH; PROVIDING FOR COORDINATION WITH THE SUPERVISOR OF ELECTIONS; 
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE the first time by title only.

Commissioner Price moved to approve the ordinance upon first reading. Vice-Mayor Wilson seconded the motion.

Public input was received. Xochitl Ross clarified that this ordinance would place the height limitation in the Town Charter. Attorney 
Gougelman read the form of the ballot question as well as the Charter language that would be in place if the referendum was to 
pass. He noted that the ballot question could not exceed 75 words. Exceptions to the Charter language that might come before 
the Town Commission included chimneys or radio antennas.

Mike Lesser would like to see the ballot question give the residents a choice as to building height. As written the question only 
asked about a 28-foot height limitation.

Mark Abraham felt that the ballot question should ask the residents whether or not they wished to see the 28-foot height limitation 
in their Town Charter.

Ron Gallagher was advised that the Charter took precedence over the Code of Ordinances.

Jan Futch wondered how this ordinance might affect the height of electrical poles. She viewed this ordinance as a Pandora’s 
Box that began as a feud between neighbors and felt that the whole idea should be dropped. She had even considered initiating 
a recall petition.

No one else wished to speak on the proposed ordinance.

Commissioner Price moved to table first reading of this ordinance until Commissioner Guglietta could attend (i.e. July 20, 2005 
regular meeting). Vice-Mayor Wilson seconded the motion and it carried with Commissioner Walters voting no.

Vice-Mayor Wilson felt that the ballot question language could be clearer. He asked that citizen comments be compiled and 
forwarded to the town attorney.

There was an immediate need for engineering services related to stormwater planning and study activities in the Town of Melbourne 
Beach. Town Manager Higginbotham was in contact with the engineering consulting firm of Jones Edmunds and Associates and 
felt they were in the best  position to meet the town’s needs. He recommended that the Town Commission authorize the execution 
of a professional services agreement with Jones Edmunds and Associates, Inc. for continuing contract engineering services related 
to planning and study activities for the Town’s stormwater issues (subject to review by the town attorney). Such an agreement was 
an allowable exception to the Consultant’s Competition Negotiation Act (CCNA) as construction costs for the completed project 
would be less than $250,000 and the fee for engineering services was estimated to be less than $25,000. The contract could be 
terminated at any time. A representative from Jones Edmunds and Associates was available to answer questions. There were none.

Vice-Mayor Wilson moved to authorize the town manager to execute a professional services agreement with Jones Edmunds and 
Associates, Inc. as outlined above. Commissioner Price seconded the motion and it carried unanimously.

Next was consideration of an interlocal agreement with the City of Cocoa for the provision of interagency dispatch services for 
the police department. Currently dispatch services were provided by Indian Harbour Beach, however, its fees had increased 
during the past year and the municipality had notified Melbourne Beach of its desire to terminate the present agreement effective 
October 1, 2005. The City of Cocoa proposed a three-year agreement. Costs for the first year included one-time implementation 
costs and recurring costs totaling $21,726, payable in quarterly installments. Second and third year costs were $15,341 for each year.

Town Manager Higginbotham recommended that the interlocal agreement be referred to the town attorney for his review as to legal 
form and content, and upon his approval, authorize the town manager to execute the agreement on behalf of the Town of Melbourne 
Beach.  Commissioner Walters moved accordingly. Vice-Mayor Wilson seconded the motion and it carried on an all aye vote.

Town Manager Higginbotham recommended adoption of an ordinance addressing civil emergencies which would define a civil 
emergency; identify persons authorized to declare such an emergency; define emergency powers and measures as well as 
duration an termination of the emergency; address the sale of goods and services at unconscionable prices, etc. It was 
suggested that the ordinance provide purchasing discretion to the town manager up to $25,000 during a declared emergency.

Commissioner Walters moved to direct the town attorney to prepare a civil emergency ordinance for the Town of Melbourne 
Beach for first reading at the July 20, 2005 meeting providing the purchasing discretion at the $25,000 threshold as mentioned 
above. Vice-Mayor Wilson seconded the motion and it carried unanimously.

The final item of New Business was appointment of a voting delegate to the Florida League of Cities annual conference to be 
held in Orlando on August 18 – 20. Mayor Stacey moved to appoint Commissioner Price as the town’s voting delegate. 
Vice-Mayor Wilson seconded the motion and it carried on an all aye vote.

Town Attorney Report Attorney Gougelman advised that mediation in the Hamilton litigation was rescheduled for June 29th at 10 a.m.

The Town Commission excused the attorney from the meeting at this time.

The Town Manager had no report at this time. The Commission acknowledged receipt of monthly reports from the various departments.

Town Commissioners’ Reports Commissioner Price mentioned that the Space Coast League of Cities was urging beach 
communities to support legislation to prohibit the dumping of raw sewage into the ocean by the cruise ship industry. Mayor 
Stacey previously discussed this subject with Congressman Dave Weldon. Commissioner Price also encouraged each 
commissioner’s participation at the Florida League of Cities annual conference in August.

Vice-Mayor Wilson mentioned repair work in progress at the Ryckman House (e.g. window replacement) and mentioned the 
possibility of a retail use for the structure.

Commissioner Walters stated that he was never fired or asked to resign from the town’s employment. Further that he was a 
certified police officer and actively seeking employment. He cautioned everyone about making malicious, libelous, or slanderous 
comments about him. As to earlier comments about the Pickin’ in the Park event, he advised that he never contacted anyone 
about this nor had any conversations.

Mayor Stacey reported on his trip to Niagara Falls and his attendance at the Brevard County Water Supply Board meeting.

The meeting adjourned at 10:10 p.m.
  

____________________________________
WILLIAM G. STACEY, MAYOR



____________________________________
KARAN ROUNSVALL , CMC
INTERIM 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.

PURSUANT TO SECTION 286.0105, FLORIDA STATUTES, THE TOWN HEREBY 
ADVISES THE PUBLIC THAT: If a person decides to appeal any decision made by the 
Town Commission with respect to any matter considered at its meeting, he will need a 
record of the proceedings and that for such purpose, affected persons may need to insure 
that a verbatim record of the proceedings is made, which record includes the testimony 
and evidence upon which the appeal is to be based.  This notice does not constitute 
consent by the Town for the introduction or admission into evidence of otherwise 
inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not 
otherwise allowed by law.