MINUTES NO. 01-12

MINUTES OF A SPECIAL TOWN COUNCIL MEETING HELD IN THE INDIALANTIC TOWN HALL ON JULY 11, 2001

PRESENT: Hon. Robert Cochran, Jr., Mayor

Hon. Michael Fischer, Deputy Mayor

Hon. Vince Benevente, Councilman

Hon. Bruce Bogert, Councilman

Christopher W. Chinault, Town Manager

Laura Eaton, Town Clerk

ABSENT: Hon. Victor Kostro, Councilman (Excused)

This meeting was tape recorded. Records are indexed and filed for ready reference where such have been summarized in typed minutes.

I.CALL TO ORDER AT 5:30 PM

Mayor Cochran called the meeting to order at 5:30 PM.

II. PLEDGE OF ALLEGIANCE

III. REQUEST FOR REHEARING OF FRED BOOZER’S APPEAL OF THE BOARD OF ADJUSTMENT DECISION DENYING A VARIANCE TO CODE SECTIONS 17-82(1) AND (3)

IV. REHEARING (IF REHEARING REQUEST IS GRANTED)

Attorney Gougelman advised that the motion for rehearing has been filed by Dr. Ward and his attorney Mike Minot. He recommended that the Council address both agenda items as one and explained that the motion for rehearing is an opportunity to correct or amend what has been done and not an opportunity to relitigate the entire case or hear new evidence. He added that this is the last step before the litigant might seek legal counsel and bring the case to the circuit courts.

Attorney Minot explained that the basis for the rehearing was that the granting of the variance was improper based on the Indialantic code and state law in that Dr. Boozer cannot show a unique hardship which is not self imposed. He noted that it is also an opportunity for the Council to place conditions on granting the variance.

Attorney Minot advised that Dr. Ward is willing to drop his protest if Council stipulates that access to the 75’ lot be from the north only and does not utilize the right-of-way south of Dr. Boozer’s lot line. He requested that Council consider this as a condition to the variance.

Mayor Cochran disclosed that he had been contacted by Ms. Demetriades concerning clarification of the issue.

Deputy Mayor Fischer disclosed that he had also talked with Ms. Demetriades and that he had received voice mail from two residents.

Councilman Benevente disclosed that he had received telephone calls from Dr. Ward, Mr. DeLuca and another town resident.

Councilman Bogert disclosed that he had received calls from Ms. Demetriades, Mr. DeLuca and another resident. He added that he had met with Dr. Ward on the property and discussed the matter with Attorney Minot.

Attorney Joel Rosenblatt, representing Dr. Boozer, commented that Attorney Minot had re-argued the case in his presentation and had not met the burden of rehearing as outlined by Attorney Gougelman. He maintained that there was no basis for a rehearing, citing a letter of protest to the variance based only on safety issues and the removal of existing vegetation.

Attorney Rosenblatt stated that Dr. Ward has taken 20–30 feet of the Magnolia Ave. right-of-way and made it a driveway and landscaped it for his own private use. He contended that Dr. Ward, by protesting the variance, was attempting to deny Dr. Boozer the same use of that right-of-way.

Attorney Rosenblatt stated that under the code the Council’s jurisdiction as a quasi-judicial body ended after the Council granted Dr. Boozer’s appeal on June 17, 2001 and that further appeals must be handled through the circuit court.

Robert DiGiacommo, 405 Orlando Blvd., supported Dr. Ward’s proposal as an equitable solution.

Carol DeLuccia, 416 Melbourne Ave., spoke against the variance allowing building on the property.

Attorney Minot rebutted that the protest letter referred to by Attorney Rosenblatt was not part of the record and that the only reason given for the original variance request was to be able to build on his 75’ lot and that Dr. Boozer had not proven a hardship.

Mayor Cochran called a brief recess to allow Attorney Rosenblatt to confer with Dr. Boozer concerning the proposal for access.

Attorney Rosenblatt advised that Dr. Boozer was not amenable to the proposal and stated that access from the north could create more of a safety issue. He stated that if Dr. Boozer accesses the property from the south, arrangements could be made to cause little disturbance to Dr. Ward and the existing shrubbery which protects the bike path.

Attorney Rosenblatt maintained that the Council does not have the jurisdiction to change their previous ruling. He offered to work with the Council, Town Manager and Dr. Ward in an effort to settle the right-of-way dispute amicably.

Attorney Gougelman clarified that, based on an opinion of the Attorney General, the Council does have the jurisdiction to correct a ruling during the 30 day appeal period.

Mayor Cochran stated that it would be up to staff to determine how Dr. Boozer would access his property.

In response to a question from Councilman Benevente, Mayor Cochran clarified the reason for the two motions of the Council at the previous meeting.

Attorney Gougelman suggested that, if Council takes no action, staff should take the opportunity to work with Dr. Boozer and Dr. Ward. He recommended that the final order be reissued as of this date in order to allow time to resolve the access issue before the appeal period expires.

Deputy Mayor Fischer moved to deny the motion for rehearing, reissue the final order dated today and direct staff to meet with Dr. Ward and Dr. Boozer to attempt to resolve the access issue. Mayor Cochran seconded.

Motion carried with Mayor Cochran, Deputy Mayor Fischer and Councilman Bogert voting “yes.” Councilman Benevente voted “no.”

Mayor Cochran noted that Councilman Kostro has an excused absence and announced that a reception for former Police Chief Jesse Geiger would be held Friday July 13 at the Town Hall.

Councilman Benevente requested that his vote be changed to “yes.”

V. ADJOURNMENT

The meeting was adjourned at 7:30 PM.

TOWN OF INDIALANTIC

______________________

Robert L. Cochran, Jr.

Mayor

ATTEST: ______________________

Laura Eaton, CMC

Town Clerk