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19831214CCMeeting1 1 00052 Tybee Island, Georgia December 14, 1983 The regular monthly meeting of the Tybee Island City Council was held on Wednesday, December 14, 1983 at the City Hall with Mayor Charles J. Hosti presiding. The following members of Council were present: Paul Jackson, Jeanne Hutton, John Wylly, Chris Solomon, S. J. Orsini and David McCutchen. The City Attorney, Thomas J. Mahoney, was also present. The only visitor to appear before Council was an attorney, Michael Gannem, representing Thomas and Jewell Rossiter Stanfield, who are petitioning to acquire a small parcel of land in front of their house, located at 26 Meddin Drive, and more particularly described as being on Lots 2,3,4 of Block 22, Fort Ward. He stated that the city's ownership of a small triangle of land blocks the Stanfields entrance to the public street fronting their property, and that it blocks no other property owner but the petitioner. He stated the petitioners willingness to have the parcel appraised or to purchase for fair market value if the Council so desires. Mayor Hosti stated that the request will be considered under new business, later in the meeting. Councilman Sebastian J. Orsini welcomed Mr. Lindsay Logan, who is an employee of the Savannah News - Press, and who is covering our City Council meeting for the first time tonight. Mayor Hosti then opened the meeting for business legally presented. The first item was a Resolution, tabled for thirty (30) days at the last meeting of Council. The Resolution, making mandatory a change in the City's Charter so that public property could not be sold without a referendum, was read by the City Attorney. Councilperson Solomon moved its adoption; Councilperson McCutchen seconded. Lengthy discussion followed. During the discussion Mayor Hosti requested Council members to be certain that any petitions they circulate, or endorse, in future, are known to be supported only as an individual action, and that the public never be allowed to believe that any petition is being circulated on behalf of the City Council prior to the Council's official action on a question. Councilpersons' Hutton and Wylly expressed opinions that no street or beach access should be sold without a referendum; Councilperson Hutton suggested limiting the Resolution to include only such parcels of land, and exclude lots and other real property. 1 1 r3 December 14, 1983 Page Two Councilperson Solomon countered by citing as an example a property on Kingry Street known as Rosemary Park, which had been willed to the city specifically for a small park or playground for children, but which has since passed into private hands. He also mentioned property given to the city by the Federal Government with provision that it be used for recreation for at least twenty years, and expressed his opinion that such property should remain public in perpetuity. Councilperson Wylly stated his opinion that the Resolution, and a subsequent Charter Change, will bind only this Council, and that a later Council can easily reverse such action, further stating that it seems to imply lack of trust in this Council's ability to decide the City's best interests, issue by issue. Mayor Hosti stated that he believed former Councilman Jerome Betten- court, who first brought this Resolution before the Council for consideration, had intended it to be limited to rights of way and streets, but that the Resolution as it presently reads is much broader in scope. A vote was then taken, as follows: in favor of the Resolution - Councilpersons Jackson, McCutchen and Solomon; opposing - Councilpersons Hutton, Orsini and Wylly. The tie was broken by Mayor Hosti who cast a negative vote, thereby defeating the Resolution. Councilperson McCutchen moved to reconsider and enter on the minutes. After some discussion it was confirmed by the City Attorney, who serves as Parlia- mentarian, that this action serves notice that the matter is not considered re- solved, and that it must be brought before the group again'atithe next regular meeting. Mayor Hosti then welcomed the new members of Council, introducing each, and announcing their committee assignments. He urged each committee chair- person to hold meetings regularly, and asked that they set their goals for the year very soon. Copies of oaths and assignments are attached to these minutes. Minutes of the meetings of November 9th and 30th were approved upon motion of CounciTperso.n McCutched, seconded by Councilperson Solomon and unanimously accepted by Council. Bills for the month of November were approved as follows: Water Department - $2,839.45, Sewer Department - -$4,874.46, Parking Meters - $1,010.76, Police Department - $3,805.90, Ceramics - $35.60, Parks, Buildings - $1,135.46, Recreation - $721.63, Public Works - $6,474.97, Sanitation - $2,041.39, First 1 1 1 00054 December 14, 1983 Page Three Responder - $1,171.79, Fire Department - $863.46, Other Expenses - i.$79.56, - and General Government - $1k611.77 Councilperson Wylly explained that the monthly expenses under the category of General Government actually totalled $11,524.14, but that he is withholding payment of invoices from NCR in the amount of $9,912.37 because of dissatisfaction with the new computer and its installation, and hopes that holding these bills will provide incentive to NCR to respond to our complaints. Other comments made were: Councilperson McCutchen stated that surgical supplies for the .First Responder, ordered months ago, have finally arrived. These costs were estimated in the original cost of beginning operations and should not be charged against this year's budget, since to do so would give the appearance of a line item seriously over- budget for the fiscal year. Councilperson Solomon stated that repairs to the public dock have been made andJthat the department's ceramics expenses should cease after this month due to the lease of the ceramics operation. Mayor Hosti then returned to the petition presented by Michael Gannem for the Stanfields. He asked if any of the Council members had personally examined the property in question and no one had. After some additional dis- cussion Councilperson Jackson moved to postpone consideration of the matter for 30 days and Councilperson Orsini seconded. The vote was unanimously in favor of postponement until the next regular Council meeting; Mr. Stanfield will have the property surveyed and see that stakes are erected for the benefit of the Council'so that they can determine the validity of the petitioner's request. The Water /Sewer committee report, given by Councilperson Jackson, included information that Daveco is presently at work on Lift Station #6, be- ginning the extensive renovation authorized several months ago, and the department is also placing water taps and sewer stubs for future use along South Campbell Avenue so that the paving of the street will not be disturbed by cuts for at least five years. Councilperson Hutton reported that the contract for the Public Works Buildings has been let to the low bidder, Dan -D, Inc., and that the company has been given notice to proceed. Also, APAC of Georgia will pave a portion of Polk Street for access to the new complex at a cost of $17,186.86. The Dan -D, Inc. bid totalled $102,897.00. They are to begin work no later than December 15, 1983 and the work should be finished no later than April 13, 1984. 1 1 1 December 14, 1983 Page Four Councilperson Wylly reported that the Shore Assistance Committee met at Tybee Island City Hall on Tuesday, December 13, 1983. He reported also that erosion control legislation will probably be introduced by Representative Phillips during the upcoming session of the State Legislature, and that Governor Harris has written a letter that is encouraging. Councilperson Solomon reported that the Recreation Committee met and proposed a budget for the basketball program designed to break even, and that the rental of the gym was approved for $850.00. He said that the boat ramp was cleared for one day and silted up again immediately - he will continue to seek a way to make the boat ramp more serviceable. Councilperson McCutchen stated that the Fire Committee has not yet met, but a meeting will be, held very soon. The First Responder answered 60 calls and a program of upgrading and certifying volunteers is planned. A class in cold water rescue has recently been held. Mayor Hosti asked for a copy of the list of calls made by the First Responder. Councilperson Orsini reported that 615 calls were answered last month. He read a letter from the owners of the Cobbs Apartments, commending the Police Department for their work over the summer months. Mayor Hosti then introddced the question of electing a Mayor pro tem, calling everyone's attention to an error in the wording of the Charter Section which deals with this election. Councilperson Jackson nominated S. J. Orsini for Mayor pro tem, and Councilperson Wylly seconded. There were no further nominations, so Councilperson Orsini was elected by unanimous consent. A Resolution concerning Voter Registration was read which will re- sult in the consolidation of the City and County Voter Registration lists. After a short discussion, Councilperson McCutchen moved its adoption, Councilperson Orsini seconded and the motion carried unanimously. Mayor Hosti then introduced the subject of appointments to various volunteer boards, stating that he had filled two vacancies on the Recreation Board. The new appointees are Wayne Yeo and Venetia Butler. He added that Mr. Yeo had run for City Council on a platform that dealt largely with Recreation issues, and that he therefore felt he would be an enthusiastic worker. He said that Venetia Butler will be the'liaison between the library and the Recreation Board, and that both new members will serve a two year term ending December 31, referred to in this paragraph until in such referendum, such has been approved by a majority vote of those voting for that purpose." APPROVED, this / day of 1 1984. 00088 JOHN F. M. RANITZ, JR. THOMAS .1. MAHONEY, JR. (GA. & S.C.) MORTON G. FORBES HERMANN W. COOUDGE, JR. THOMAS H. GIGNIWAT (COUNSEL) BOBBY PHIWPS CLARK SMITH 1 LAW OFFICES RANITZ, MAHONEY, FORBES & COOLIDGE, P.C. 110 EAST OGLETHORPE AVENUE POET OFFICE 786 SAVANNAH, GEORGIA 31402 March 29, 1984 Honorable Charles J. Hosti Mayor, City of Tybee Island Post Office Box 128 Tybee Island, Georgia 31328 Re: Section 65, City of Tybee Island Charter Dear Mayor Hosti: As you recall, Council passed a Resolution on January 11, 1984 to change Section 65 of our Charter dealing with buying or selling public property. The Resolution was sent to Bobby Phillips with a request that it be enacted as a part of local legislation. Representative Phillips referred the same to Legislative Counsel Harvey Findley for preparation of the appropriate language, which is customary. Mr. Findley advised that his research reflected the following: The new Official Code of Georgia Annotated, Title 36, Section 37 -6 now governs the sale of municpial property. A copy of that Code Section is enclosed for your review. You will note that when the provision was enacted, there was a concern about local governments which may have had Charter provisions contrary to the new law, and Section (e)(1) was included so as to exclude any municipal corporations which had a Charter provision existing as of January 1, 1976, so long as that provision remained unchanged. We did have such a provision, obviously with Section 65, although our notice requirements are not the same; and I question whether or not we could fall under the exclusion. Mr. Findley advised Representative Phillips that we would either have to elect to retain our current Charter provision or fall under the provision of 36 -37 -6, or to amend the State taw. The Code Section cannot DENNIS PIERCE (1906 -1979) TELEPHONE 9I2233-7961 TELEX 215 406 RMFC SAV 00069 1 Honorable Charles J. Hosti Mayor, City of Tybee Island March 29, 1984 amended and could not be amended by local legislation as we requested, and at the time of our request, there were not enough legislative days to pass a general statute to repeal the State law. In my opinion, since our present Charter Section 65 does not contain any provision providing for notice to be given, then we are governed by Official Code of Georgia Annotated 36 -37 -6, and any future sales of real or personal property (with the exceptions noted in the Code Section) must follow the procedure set forth in that Section, - meaning that it will have to be done by auction or sealed bids after due notice. I will be glad to try and explain this to the Council members if you want me to do so. With best wishes, I am TJMjr /dml Enclosure 1 Sincerely, THOMAS J. MAHONEY, JR. For the Firm - 2 - 1 36 -37 -6 ACQUISITION, SALE, ETC.. OF PROPERTY RESEARCH REFERENCES 00070 36 -37 -6 Am. Jur. 2d. — 56 Am. Jur. 2d, Munic- ALR. — Power of municipal corporation ipal Corporations, Counties, and Other or other political body to accept and admin- Political Subdivisions, §§ 534, 546. ister trust, 10 ALR 1368. C.J.S. — 63 C.J.S., Municipal Corpora- tions, § 960. 36 -37 -6. Sale of municipal property by sealed bids or auction gen- erally; notice; public inspection of sealed bids following opening thereof; sale of property on open market; sale of real property located in established municipal industrial parks, • etc.; sale of real property for museum purposes. (a) Except as otherwise provided in this Code section, the governing authority of any municipal corporation disposing of anyreal or personal property.. of such municipal corporation shall make all such• sales to the highest responsible bidder, either by sealed bids or by auction after due notice has been given. Any such municipal corporation shall have the right to reject any and all bids or to cancel any proposed sale. The governing authority of the municipal corporation shall cause notice to be published once in the official legal organ of the county in which the municipality is located or in a newspaper of general circulation in the community, not less than 15 days nor more than 60 days preceding the day of the auction or, if the sale is by sealed bids, preceding the last day for the receipt of proposals. The legal notice shall include a general description of the property to be sold if the property is personal property or a legal description of the property to be sold if the property is real property. If the sale is by sealed bids, the notice shall also contain an invitation for proposals and shall state the conditions of the proposed sale, the address at which bid blanks and other written materials con- nected with the proposed sale may be obtained, and the date, time, and place for the opening of bids. If the sale is by auction, the notice shall also contain the conditions of the proposed sale and shall state the date, time, and place of the proposed sale. Bids received in connection with a sale by sealed bidding shall be opened in public at the time and place stated in the legal notice. A tabulation of all bids received shall be available for public inspection following the opening of all bids. All such bids shall be retained and kept available for public inspection for a period of not less than 60 days from the date on which such bids are opened. (b) The governing authority of any municipal corporation is autho- rized to sell personal property belonging to the municipal corporation which has an estimated value of $500.00 or less and lots from any munic- ipal cemetery, regardless of value, without regard to subsection (a) of this Code section. Such sales may be made in the open market without adver- tisement and without the acceptance of bids. The estimation of the value 393 it( iil 1 36 -37 -6 00071 LOCAL GOVERNMENT 36 -37 -6 of any such personal property to be sold shall be in the sole and absolute discretion of the governing authorities of the municipal corporation or their designated agent. (c) Nothing in this Code section shall prevent a municipal corporation from trading or swapping property with another property owner if such trade or swap is deemed to be in the best interest of the municipal corporation. (d) The governing authority of any municipal corporation is autho- rized to sell real property in established municipal industrial parks or in municipally designated industrial development areas for industrial development purposes without regard to subsection (a) or (b) of this Code section. (e) (1) This Code section shall not apply to any municipal corporation which has a municipal charter provision setting forth procedures for the sale of municipal property and existing as of January 1, 1976, so long as such charter provision thereafter remains unchanged and 'as long as such charter provision contains the minimum notice require- ments as set forth in subsection (a) of this Code section. (2) This Code section shall not apply to the disposal of property: (A) Which is acquired by deed of gift, will, or donation and is subject to such conditions as may be specified in the instrument giving or donating the property; (B) Which is received from the United States government or from this state pursuant to a program which imposes conditions on the disposal of such property; (C) Which is disposed of pursuant to the powers granted in Chap- ter 61 of this title, the "Urban Redevelopment Law," or a homesteading program; or (D) Which is sold or transferred to another governing authority or government agency for public purposes. (f) Notwithstanding any provision of this Code section or of any other law or any ordinance to the contrary, the governing authority of any municipal corporation is authorized to sell real property within its corpo- rate limits for museum purposes to either a public authority or a nonprofit corporation which is classified as a public foundation (not a private foundation) under the United States Internal Revenue Code of 1954, for the purpose of building, erecting, and operating thereon a museum or facility for the development or practice of the arts. Such sale may be made in the open market or by direct negotiations without adver- tisement and without the acceptance of bids. The estimation of the value of any property to be sold shall be in the sole and absolute discretion of 394 36.31 the sided sw p1 dccU 469. 2;Co ,Crn • oP+r • �I MOM arras b utsIcX Cwbt. (du asui Diitl enaaf Thew Mt i cls�at� aad.* tiler ha* to is - 9411 foam 00072 36 -37 -6 ACQUISITION, SALE, ETC., OF PROPERTY 36 -37 -6 the governing authority of the municipality or its designated agent; pro- vided, however, that nothing shall prevent a municipality from trading or swapping property with another property owner if such trade or swap is deemed to be in the best interest of the municipality. (Code 1933, § 69 -318, enacted by Ga. L. 1976, p. 350, § 1; Ga. L. 1978, p. 890, §§ 1, 2; Ga. L. 1981, p. 831, § 1.) Cross references. — As to discretion of position of property, see § 36 -30 -2. As to governing body as to management and dis- acquisition of facilities, see § 36 -34 -3. JUDICIAL DECISIONS Property held by municipality for gov- ernmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which it was intended. Harper v. City Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law). Distinction between land held in gov- ernmental and proprietary capacities. — There is a dear distinction between prop- erty purchased by a municipal corporation and held for use by it as an entity, or in its proprietary capacity, and property pur- chased by the city for the public use and benefit of its citizens. As to property acquired for strictly corporate purposes and held in its proprietary capacity, the power to dispose is unquestioned, but as to the latter, in the absence of express legisla- tive authority, it is only where the public use has been abandoned or the property has become unsuitable or inadequate for the purpose to which it was dedicated that the city has power to dispose of such prop- erty. Harper v. City'Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law). Property held by a municipality for gov- ernmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which it was intended. The rule is otherwise as to property held by a munic- ipality in its proprietary or private capacity, where not devoted to any specific public use. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953). Though land be bought for public use, if not actually used for such purpose it cannot be said to be held by municipality affected by public trust, and may be sold. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953). Where property held by municipality for governmental or public use is aban- doned as to such use, the municipality may sell it without express legislative approval. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953). No lease of park for term of years for private gain. — The weight of authority is that a municipal park is a public utility, and a portion thereof cannot be leased for a term of years for private gain. Harper v. City Council, 212 Ga. 605, 94 S.E.2d 690 (1956) (decided under former Ga. L. 1956, p. 22 and local law). RESEARCH REFERENCES Am. Jur. 2d. — 14 Am. Jur. 2d, Cemeteries, §§ 3, 6, 20. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 549 -551, 557. C.J.S. — 63 C.J.S., Municipal Corpora- tions, §§ 961, 962. ALR. — Sufficiency of compliance with condition of sale or lease by municipality of public utility plants, 52 ALR 1052. Lease of property by municipality or other political subdivision, with option to purchase same, as evasion of constitutional or statutory limitation of indebtedness, 71 ALR 1318; 145 ALR 1362. 395