HomeMy WebLinkAboutMinutes 10-01-2007 Atty-ClientLn
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
Debra S. Babb- Nutcher°
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta°
Anthony A. Garganese°
William E. Reischmann, Jr.
J.W. Taylor
Jeffrey S. Weiss
'Board Certified Civil Trial Lawyer
'Board Certified City, County & Local Government Law
'Board Certified Appellate Practice
Angela Apperson, City Clerk
City of Cape Canaveral
P.O. Box 326
Cape Canaveral, FL 32920
Attorneys at Lain
Offices in Orlando,
Ft. Lauderdale & Tampa
Tara L. Barrett
Vivian P. Cocotas
Robin Gibson Drage
Gregg A. Johnson
Kimberly R. Kopp
Katherine W. Latorre°
Bridgette M. Miller
Alfred Truesdell
Gary M. Glassman
Erin J. O'Leary'
Amy J. Pitsch
Catherine D. Reischmann°
Of Counsel
January 6, 2010
Re: Attorney - Client Session Transcript for October 1, 2007 for Tripple J Investments,
LLC vs. Cape Canaveral Case No. 05- 2006 -AP- 044793
Dear Angela:
As you know, apparently the City did not order the attorney - client session transcript held on
October 1, 2007. As such, I ordered a copy of the transcript from the court reporter. Enclosed
please find a copy of that transcript. Because the case has been concluded, this transcript is a
public record and can be disclosed to the person requesting.
S'
rl,
Anthony A. Garganese
City Attorney
AAG:jel
enclosure
11
111 N. Orange Ave, Suite 2000 • P.O. Box 2873.Orlando, Florida 32802 -2873
Orlando (407) 425 -9566 Fax (407) 425 -9596 • Kissimmee (321) 402 -0144 • Cocoa (866) 425 -9566 • Ft. Lauderdale (954) 670 -1979
Website: www.oriandolaw.net • Email: firm @orlandolaw.net
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CITY OF CAPE CANAVERAL
ATTORNEY - CLIENT SESSION
OCTOBER 1, 2007
ATTORNEY - CLIENT SES
The transcript of the Attorney- Client Session
of the City of Cape Canaveral held at the City Hall
Annex, ill Polk Avenue, Cape Canaveral, Florida, on
the 1st day of October, 2007, commencing at 5:30 p.m.
RYAN REPORTING
REGISTERED PROFESSIONAL REPORTERS
1670 SOUTH FISKE BOULEVARD 100 RIALTO PLACE, SUITE 700
ROCKLEDGE, FLORIDA 32955 MELBOURNE, FLORIDA 32901
(321) 636 -4450 (321) 723 -8538
FAX: (321) 633 -0972 FAX: (321) 725 -6315
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A P P E A R A N C E S
ROCKY RANDELS, Mayor
BOB HOOG, Mayor Pro Tem
LEO NICOLAS, Council Member
BUZZ PETSOS, Council Member
SHANNON ROBERTS, Council Member
BENNETT BOUCHER, City Manager
ANTHONY A. GARGANESE, City Attorney
GUISEPPINA ANCONA, Court Reporter
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P R O C E E D I N G S
MAYOR RANDELS: I'd like to call to
order the City of Cape Canaveral, City
Council, Attorney /client Session. It is
Monday, October the lst at 2007, and it's
5:30 p.m. We're at the City Hall Annex,
ill Polk Avenue in Cape Canaveral,
Florida. And I'd like to pass it off to
our City Attorney Anthony Garganese to
give us some instructions.
MR. GARGANESE: Okay. I thank you,
Mayor. The purpose of this meeting is
that I need the advice and direction of
the City Council regarding the lawsuit,
Tripple J. Investments, LLC versus City of
Cape Canaveral and the City of Cape
Canaveral Board of Adjustment. It's case
number 05- 2006 -AP- 044793. This action is
currently before the Circuit Court in
Brevard County. The issue I need to
discuss is whether or not the City desires
to appeal this decision of the Circuit
Court to the Fifth District Court of
Appeal.
Before we get into the
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attorney /client session, the only issues
that can be discussed during the
attorney /client session are litigation
strategy and litigation expenditures
regarding this particular matter. Nothing
else can be discussed during the closed
session.
At this time, Mayor, it would be
appropriate for you to specifically state
for the record who will be in attendance
at this meeting and the estimated length
of the attorney /client session.
MAYOR RANDELS: Okay. This is the
Chair and I'm Rocky Randels speaking. We
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estimate it probably will be in an hour
approximately the time to complete the
meeting. And those in attendance, and I
will start with myself, I'm the Mayor,
Rocky Randels. We have the Mayor Pro Tem,
Bob Hoog. City Council Members Leo
Nicolas, Buzz Petsos, and Shannon Roberts.
And City Manager is Bennett Boucher and
the City Attorney is Anthony Garganese.
And we do have a court reporter in
attendance. And the doors are locked and
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we are in a closed session and this is us
only. We've been instructed as to what we
can talk about.
MR. GARGANESE: Yeah, at this point,
I mean, it's appropriate to go into the
attorney /client session. Let the record
reflect that there was no one in the
audience at the beginning of this meeting
and there is no one in the audience right
now.
On September -- just to give you a
little background. On September 14, 2007
the Circuit Court serving in its appellate
capacity, it was a three judge panel,
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rendered a decision in the Tripple J.
versus City of Cape Canaveral /Board of
Adjustment decision. The Circuit Court
was required to review the decision of the
Board of Adjustment under a petition for
writ of certiorari. And in general the
Court found that the Board of Adjustment's
decision was not supported by competent
and substantial evidence and they quashed
the decision of the Board of Adjustment
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and remanded the case back to the Board of
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Adjustment for entry of an order
consistent with their opinion. In doing
so, the Court made several observations.
But before I get into those observations,
I just want to, I think everybody is
familiar with the situation, but I just
want to just refresh everybody's memory.
This is a particular piece of
property. Currently it is vacant. It is
zoned C -1, commercial, and the applicant
came in and requested a special exception
to permit residential in or at least on
this lot. The applicant wanted to --
wants to build three town home units on
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this property. On one side of the
property is a single family home which was
approved by the Board of Adjustment
several years ago as a special exception.
On the other side of the property is a
single family home located in the Harbor
Heights subdivision which is zoned R -1.
And so the property is surrounded by
single family dwellings.
The Board of-A- djustment in a wxitten
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order found that the proposed town home
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project was not compatible with the
surrounding areas and in doing so they
hung their hat on I believe a distinction
between attached housing and detached
housing. And I don't think that
distinction, while it's in the Board's
order, was emphasized by the Court in its
opinion.
The Court, first of all, found that
the City has a definition of town home in
its zoning district and the Court cited
that definition of town home or town house
and the Court noted that the definition
says single family dwelling unit. But
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what the Court did not reference was the
other part of that definition. Town house
under the City zone codes means a single
family dwelling unit, which I think is
obvious, but it's constructed in a series
or group of attached units with property
lines separating such units. So the Court
seemed to think, well, you know, the
applicant was requesting a special
exception to build single family dwelling
units and the town home definition says
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that, you know, the town home is a single
family dwelling unit and, therefore, they
found that interesting and found that at
least to them it seemed absurd that the
City says it's not compatible, town homes
are not compatible with the single family
dwelling units. And I don't believe
that's really what the Board of Adjustment
was saying in its order. The Board was
saying that detached versus attached was a
compatibility issue. So that's one issue
I want to emphasize.
Moving on, the Court felt that there
was no competent, substantial evidence to
support the record. There was a lot of
discussion, a lot of testimony by some of
the residents that live in the Harbor
Heights subdivision. They felt that the
town home project was not keeping with the
nature of the community in that area. And
the Board -- the Court said that that was
not competent and substantial evidence and
that wasn't a basis -- that testimony
wasn't a basis for-`the- Board oflAdjustment
to hang its hat on in rendering its
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decision. And as a result, the writ of
certiorari was granted and the Board of
Adjustment's decision was quashed.
Now, in this type of proceeding it's
important for the Council to realize that,
you know, appealing this decision is
called a second tier certiorari review.
The only issues that the District Court of
Appeal will consider on appeal is whether
the Circuit Court applied the correct law
and whether the Circuit Court afforded
procedural due process.
I think or I believe that there is an
issue to -- an issue on which the City
could make a good faith appeal on and that
is whether or not the Circuit Court
applied the correct law. I think you have
an issue with the Court omitting the full
definition of town home in failing to
recognize that the City's own zoning code
makes that distinction between attached
and detached. We could argue in good
faith that that was a misapplication of
the law by the Court, -and subject to
reversal. In addition, while lay person's
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testimony is generally not accepted as
competent and substantial evidence, the
case law says that lay testimony is
permissible with respect to general
character of the area for purposes of
compatibility. The Court did not even
seem to mention that.
Secondly, because of this, you know,
this issue, this possible misapplication
of the law, we could argue that the
Circuit Court substituted its judgment for
that of the Board of Adjustment. And that
is not allowed in certiorari reviews. The
Circuit Court can't substitute its
judgment. It's supposed to comb through
the record to see whether there was any
competent and substantial evidence to
support the Board's decision. The Court
in this case didn't think that there was
any competent and substantial evidence.
We may be able to argue that they maybe
misapplied the standard and that there was
some competent and substantial evidence in
the record to support the Circuit Court's
decision. So it's a very narrow review.
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So you know that if you appeal this
decision, it's not about arguing all the
details of the evidence. That would be
inappropriate. It's about whether or not
the Circuit Court applied the correct
law. Very, very narrow. And I think
there's a good faith basis to make that
argument.
Now, with that said, second tier
certiorari review is a difficult
standard. I'm not saying that this a slam
dunk by any means, but there is a basis.
I believe there is a good faith basis to
take this to the next level. I can't
predict how the Court would rule. I just
know it's a very narrow standard. It's a
tough standard to reach. But there has
been recent case law where, you know,
District Court of Appeal have quashed
lower Court's decision to do it. Not very
frequently, but they do do it under
certain circumstances.
Now, with that said, the cost for a
second tier certiorari - review given this
case would probably be about five thousand
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dollars in attorney fees to -- and filing
fees to bring it before the Fifth District
Court of Appeal. If the Court requests an
oral argument in this case, it probably
would be another two thousand dollars to
prepare and attend an oral argument. So
the City's exposure for additional
attorney fees is approximately I'll say
seventy -five hundred dollars to take it to
the next level for this case under this
record. If you decide not to appeal, if
you just make a strategic decision not to
appeal, this matter will be remanded back
to the Board of Adjustment and they would
likely have to issue an order allowing or
granting the special exception and then
the applicant would be able to proceed if
they want to proceed with their town home
project of three units, two stories high
with two single family detached homes on
both sides.
Now, there was some preliminary
settlement discussions if you remember
early on in this _matter and I think the
matter came to the Council whether or not
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the City wanted to purchase this property
and the Council felt that they did not
want to purchase the property. I think
the applicant was requesting whatever they
had put into the property and that was
ball park two hundred.
MR. BOUCHER: No, I think it was like
three - fifty.
MR. GARGANESE: Two - fifty,
three -fifty range, you know, I don't know
if that is still an option or not or
whether you'd even want to consider that
as part of this litigation. I think
you've got two options. I mean, you can
make a good faith appeal and see if you
can get the District Court to reverse the
Circuit Court in which case, you know, the
Board of Adjustment's decision will stand
or you can elect not to appeal and then
the matter is going back before the Board
of Adjustment for a final order and then
what happens after that would depend on
s the applicant's desire to pursue the
project.
MEMBER NICOLAS: If it goes back to
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the Board of Adjustment, is the Board of
Adjustment precluded from rendering the
same decision?
MR. GARGANESE: Their decision has to
be consistent with the Circuit Court's
decision which, you know, that's like
reading tea leaves sometimes. But one
thing I think is clear is that I think the
Court felt that the special exception
should have been granted.
MEMBER NICOLAS: So basically then
the -- if it goes back to the Board of
Adjustment, they don't have any
alternatives.
MR. GARGANESE: The problem -- I
haven't gotten to that point, but I think
their alternatives are going to be very
few. Very, very narrow. I think they
may -- they would likely have to grant
the special exception. And whether they
can impose additional safeguards, you
know, that's going to be a question for,
you know, the Board to consider.
MEMBER ROBERTS: Why does it, go back
to the Board of Adjustment?
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MR. GARGANESE: That's the rule.
MEMBER ROBERTS: Why does it have to
go back to the Board and just not go --
MR. GARGANESE: The Court cannot
direct the Board of Adjustment to do
anything. It can just approve or quash
the decision. If they quash it, that
means it goes back to the lower tribunal
which is the Board and then they have to
render a decision consistent with the
opinion of the Court which is the law of
the case. So that's just the way it
works. Now, the law of the case is going
to be the Court felt that there is no
distinction between town homes and single
family for purposes of determining
compatibility. The Board of Adjustment
felt that was a distinction and the
Circuit Court disagreed. So the Board of
Adjustment could not render the same
ruling and say that this town home project
is incompatibility with the two single
family units when the Court has already
disagreed with that—c-
MEMBER ROBERTS: Could the Board be
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clear in its next rendering of a similar
decision based on its original intent?
MR. GARGANESE: Probably not.
MEMBER ROBERTS: So the City's
position through the Board of Adjustment,
the only way that we could stay consistent
with that would be for the appeal of this
Court's decision.
MR. GARGANESE: On the issue of
compatibility, the only option at this
juncture is to if you disagree with the
Court is to appeal it. Otherwise, the
Board of Adjustment's compatibility
determination appears to have been made by
the Circuit Court.
MEMBER ROBERTS: If it were to go
back to the City and the Board and we
grant the special exception, does the
applicant have to go back through the, you
know, to apply for the project --
MR. GARGANESE: It would have to
submit a site plan application and go
through that process, so strategically,
and they go through the process if you;do
not want to appeal.
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MEMBER ROBERTS: Is there anywhere
along that way that the City could
exercise discretion as its normal review
of a new project?
MR. GARGANESE: That issue is kind of
outside the scope of this attorney /client
session. They just would have to follow
the process. If you decide not to appeal,
they would have to file an application and
go through the process.
MEMBER PETSOS: You mentioned the
Court, the argument may be applied the
correct law of detached versus attached
town home. Which is kind of a fine line
because we talk about single family
dwelling and single family dwellings are
town homes. When you broke the
compatibility issue, does the Court look
at the actual fact that that land is
commercial?
MR. GARGANESE: Yes. Absolutely.
That was the factor in oral argument and
they had asked isn't it true that the
property is zoned commercial and said,
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"Yes, it is." And there was discussion
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about what kind of commercial uses could
be constructed on that property and that
was a tough argument. My argument was in
the distinction, the Board made a
distinction between attached and
detached. And when you look at, it really
is a question of density. By constructing
three town home units on that property,
you're actually allowing more dense
project than the surrounding properties
which are just single family, detached
single family homes. It's a far greater
density because the properties are about
the same. It's not too much more than
what's on the side.
MEMBER PETSOS: Right. But one being
a special exception for residential on
commercial property.
MR. GARGANESE: Right. That was an
issue. The Court was scratching its head
on why there are two single homes with --
on each side of C -1 zoned property.
MEMBER PETSOS: I can understand
that .
MEMBER ROBERTS: Are these homes, is
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that close to the three town homes that
were subsequently approved on North
Atlantic?
MAYOR PRO TEM HOOG: No, on the next
side of that single family home --
house --
MEMBER ROBERTS: So it wouia be on
North Atlantic?
MAYOR PRO TEM HOOG: It was just a
lot away. One single family house and
then a vacant lot.
MEMBER ROBERTS: Okay. On Coral?
MAYOR PRO TEM HOOG: Seashell. When
you litigated this, did you -- did you
differentiate that detached versus
attached in your arguments?
MR. GARGANESE: Yes.
MAYOR PRO TEM HOOG: It was argued
that way?
MR. GARGANESE: Um -hum.
MAYOR PRO TEM HOOG: And they still
backed the -- they quashed the Board of
Adjustment over that even --
MR. GARGANESE: Yes.
MAYOR PRO TEM HOOG: But that seems
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to be the only thing that we've got to go
on.
MR. GARGANESE: That would be one --
arguably one misapplication of the law. I
mean, the Board's order was limited to
that issue. It was just the fact that it
was a two story town home and there was a
picture of the proposed town home and the
single family on both sides, single family
detached, and the Board hung its hat on
attached versus detached.
We'll also note for the record that
the City's planner stated in his report
that the -- on the issue of
compatibility, it was debatable whether it
was compatible. I mean, he didn't take a
firm position one way or another, you
know, with that report. All the Board
heard was several residents coming and
making the argument that, you know, this
is not compatible with their
neighborhood.
MAYOR PRO TEM HOOD: Depending on
what part of the neighborhood. I mean,
you can go the east, it's all
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residential. you go to the south and it's
all town homes except for that one house
that is there in that commercial zone.
MR. GARGANESE: It's tough. It's a
tough argument based on the record that
the Board has, but I think there's
something there. The question is whether,
you know, given this limited record where
the Circuit Court substituted its
judgments for the Board. And in order to
reach that conclusion, the Court had to
partially cite the definition of town home
and ignore the detached, attached
distinction and the Board had to -- and
the Court had to make a finding that there
was no evidence whatsoever in the record
including the evidence -- or the
testimony presented by the residents that
live in that area.
MEMBER PETSOS: I guess I appreciate
you clearing up the fact that you guys did
present the fact of the attached versus
detached and it was kind of not looked at
I guess by the Court. They looked at it
more as a single family dwelling and not
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attached versus detached.
MR. GARGANESE: Um -hum.
MEMBER PETSOS: If we were to go
ahead and appeal and won, then where do we
rn .
MR. GARGANESE: If we appeal and the
District Court of Appeal reversed the
Circuit Court, then Tripple J would have
the opportunity to possibly appeal to the
Florida Supreme Court which is even
narrower, narrower review on -- or, you
know, live with the Board of Adjustment's
decision.
MEMBER PETSOS: And if they appeal
that based on the single family and'the
compatibility, which is the big issue that
I keep on seeing the Court relate them to,
compatibility of it being a commercial
piece of property versus potentially town
homes, that would enter into it
substantially; would it not?
MR. GARGANESE: What, the fact that
it's commercial?
MEMBER PETSOS: Correct.
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MR. GARGANESE: That's a very
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important point. But what we're really
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focusing on is the decision that the Board
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of Adjustment made and, that is, they made
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that distinction between attached and
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detached. There's nothing in the Board's
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order or the Court's opinion regarding,
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you know, what happens if it was developed
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as commercial.
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MEMBER PETSOS: I understand, and
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that's why I asked the question earlier,
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did the Court discuss the commercial
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aspect of the zoning as commercial now and
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you said, yes. So I would assume it would
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carry forward with that.
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MR. GARGANESE: Yes. Definitely the
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issue is there. It's in the Circuit
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Court's opinion. It's in the order that
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the property is zoned C -1, so it's opened
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and it's open for, you know, it's opened
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for, you know, continued argument. No
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question about it. But, again, the
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review, certiorari is a very strange
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animal. It's like common law. But it's
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just the higher you go, the more narrow
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the review is and the purpose is so you
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don't have multiple same appeals going
through the different courts. Just, they
strip away one layer of review every step
higher in the court process that you go.
MAYOR RANDELS: Anthony, if I may, if
indeed Council decides to appeal, how
would we be able to strengthen the
explanation of the difference between
attached and detached if we weren't able
the first time?
MR. GARGANESE: Um -hum.
MAYOR RANDELS: How? Could we?
MR. GARGANESE: Oh, absolutely. I
mean, that's what you have to emphasize.
There's a misapplication of the law: I
think, you know, if I had to write this
brief, one of the things I would emphasize
is that definition of town homes and
emphasize that, you know, the definition
says it's attached units versus detached
and, you know, probably be very similar to
the argument made to the Circuit Court
except you have three different eyes
looking at it and they're going to look at
it from, okay, we see the distinction, but
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did the Circuit Court, you know, misapply
that law. And I think there's an argument
to be made because they omitted it. They
omitted part of that definition in their
rationale. I mean, they said, first, it's
interesting to note that the City's own
zoning ordinance defines a town house as a
single family dwelling unit. So
essentially the petitioner is asking for
permission pursuant to the City's own
ordinance for permission to build a single
family dwelling unit as defined by the
City ordinance. The City has said it's
not compatible with single family dwelling
units which seems to be absurd. Weil, the
City Board of Adjustment said attached,
three attached town home units is not
compatible with two surrounding attached
single family dwelling units. It wasn't
the single family nature of a town home
unit that really had the Board, you know,
up in arms about the application. It was
that attached, detached distinction.
Again, I mean, I think there's a good
faith basis here. Whether it's a, you
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know, where we're at at the end of the
day, I really can't predict. It's not the
strongest record I've ever had to deal
with, but I think there's some logic to
the Board of Adjustment's --
MAYOR RANDELS: Reflecting the
difference in the current zoning, that
parcel we're talking about was considered
is commercial, allows various uses and
then I could see if it was in the R -1
residential use and we certainly could
defend it there. But I'm not sure it's
defensible in the commercial area as such,
you know, --
MEMBER PETSOS: That's my concern
because when you go back to that
compatibility issue and, you know, it's
commercial compatible there and that's why
I asked if the Court looks at that. I
would think the Court would look, and I
hate to even put myself in the guise of
being a judge or definitely not an
attorney, I can't see how the commercial
could be even more compatible than
residential.
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MAYOR PRO TEM HOOG: Well, especially
when it's all commercial strip and you've
already got attached town homes and you
got single family.
MEMBER PETSOS: No, I understand
what's there. I just, you know, wanted to
make sure that the Court looked at the
commercial aspect and if they did, to me
that may have been some of their rationale
to say, well, town homes based on our
definition of single family and
compatibility is much more compatible than
commercial. They might not have spelled
that out in that ruling, but to me that's
the most -- what the thought process may
have been. And that's what I worry about
if we were to go back to an appeal. If
that's what they're looking at is what's
the zoning classification there and we're
saying it's not compatible, how could we
say commercial is compatible instead of
residential?
MR. GARGANESE: The Court just takes
whatever is presented in the record and
i
that there wasn't, you know, record about
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what exactly the applicant would want to
do if they don't have, you know, this town
home application approved, you know, it's
speculative to say what, you know, could
go on that property. But you're right.
It could arguably be some commercial use
under -- as it's commercial use as listed
as permitted use. You don't need a
special exception. But that issue was not
specifically addressed nor should it have
been.
MEMBER NICHOLAS: The other question
that comes up is the compatibility of the
town homes in the commercial zone.
MEMBER ROBERTS: The fact that we
have enabled town homes to be built in
that area that were normally zoned
commercial to me that would be an argument
that even Tripple J could make I would
think. So I guess I'm concerned about the
fact that we've already had a -- enabled
town homes to be built in C -1 zones in
that area. And if I understand where the
North Atlantic town homes are located,
they are not too far from the area in
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question; is that correct?
MAYOR PRO TEM HOOG: There's eight
town homes built within one hundred feet
of this lot in question all along that
commercial strip. It's all right there.
You know, I think knowing all the history
of it, I would think we'd have a hard time
going back. If you litigated it on the
attached and detached, how can -- how can
they miss that point and not, you know,
it's a possible misinterpretation? How
could they misinterpret that?
MR. GARGANESE: Courts make errors.
I mean, that's what you look for on a
second tier certiorari review. you look
for arguments where the Court misapplied
the law. And under this particular case
given the narrow issues, I think that's
one argument. That and the fact that
there was at least some competent and
substantial evidence to support the
Board's decision and the Court should not
have substituted it's judgment for the
Board of Adjustment. .That's, you know,
there's lots of bells and whistles I could
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attach to that based on the record, but
that in essence is the brief. Those are
the two points. And the question is
whether you want to from a strategic
standpoint, you know, bring it to next
level to see if we could get the Court's
attention, the higher Court's attention on
that issue. If not, then the Board of
Adjustment -- if you don't appeal, the
Board of Adjustment's decision is quashed.
If you appeal and the Court overturns the
Circuit Court, you know, then the Board of
Adjustment's decision stands or if the
District Court -- if the Appeals Court
affirms, agrees with the Circuit Court's
decision, the Board of Adjustment's
decision is overturned. The question is
whether you want to take it to the next
level or live with the Court's decision?
The reason why we're here is because the
Board of Adjustment can't appeal, cannot
appeal this decision, so Council controls
the purse strings.
MEMBER PETSOS: Anthony, is it
appropriate to ask the City Manager if he
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has had any discussion with the
surrounding area homes and whether they
have been enlightened as to what the
ruling was for the court case?
MR. GARGANESE: I think if it goes to
the, you know, the merits of an appeal,
yes, but otherwise no.
MEMBER PETSOS: I think it does go to
the merits of the appeal.
MR. BOUCHER: Can I ask something,
though, if you don't mind, Mayor? If the
Board of Adjustment gets it back and they
grant special exception, then the folks in
that affected area could appeal that
decision; could they not? I mean, as far
as the process, existing process. And who
is to say that maybe, and I know this was
brought up earlier, that I know the Court
dismissed their argument, but maybe if
they came back with another argument and
put it on the record and then if they want
to appeal it and if it got granted, but,
you know, at least it gives the residence
an option if they want to take it to the
next level. And I understand where
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Anthony is coming from here, you know, we
can appeal it now or wait and see what
happens later. Go that route, you know,
there's a few options on the table and
there's a few more processes to go
through. So, you know, I -- all this is
going to do is this would stay them from
coming to the Board of Adjustment if they
appeal this; right?
MR. GARGANESE: Yes.
MR. BOUCHER: So it would stay there
for how many more months?
MR. GARGANESE: It could be
another -- if you appeal to the Fifth
District Court of Appeal, it would be
another nine months to a year.
MR. BOUCHER: And they've already --
Tripple J has been out -of- pocket on this
for about, what, eighteen months?
MR. GARGANESE: Yeah, approximately.
Yeah, eighteen months. If the matter goes
back before the Board, they're not going
to be able to just open up, you know, the
record to take in all new testimonyi
regarding issues that have already been
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decided, you know, this is the appeal
process. This is the law of the case. I
mean, the Board has to be bound by this
decision which is going to limit their
ability. They're not going to have like a
full blown additional special exception
hearing on this matter. Due process for
the applicant, which is Tripple J, you
know, would demand better in my view.
It's almost like at this juncture, you
know, this is the record that was
presented and for the most part you have
to live with it, good, bad or indifferent
through the appellate process.
MAYOR RANDELS: If we appeal the
Court's decision and win, what have we
won?
MR. GARGANESE: The Board's decision
denying special exception would be
upheld. It would not be a town home
project on this property.
MAYOR RANDELS: Okay.
MEMBER PETSOS: Provided they don't
appeal that.
MR. GARGANESE: Right. That's it.
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MAYOR RANDELS: I guess I try to
question it, what is the right thing and
what's best for the City rather than
saying who can wait who out the longest
because it's costing somebody money? I
think we need to look at this, what are we
trying to accomplish and will we be able
to accomplish it realistically? I don't
think the seventy -five hundred dollars is
going to make or break anybody. But
it's -- what is the end result if we do
win and what is the end result if we don't
is kind of what we're looking at. I hate
to ask for something that I really don't
want.
MEMBER ROBERTS: As I recall the
community's testimony on this case was
they really wanted to preserve Harbor
Heights as a residential community. And I
think the perception I had, the City's
review those pleas, so to speak, was to
support the community's wish to maintain a
single family residential character and
community at Harbor Heights. As I recall
the two adjacent projects -- properties
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were single family at the time. Are they
still -- is one -- if I heard you
correctly, correct me in what I'm getting
ready to say, there is a town home
development on one side and there is a
single family on the other?
MAYOR PRO TEM HOOG: (Moves head up
and down.)
MEMBER ROBERTS: It may be prior to
the construction of the town home
community and I don't remember that. But
as I recall they were saying that there is
a single family on one side and a single
family on the other -- in fact, to
considering building a single family house
on this particular property if subsequent
to all that and everything that has
happened with the Board and Court, there
has been the construction of a town house
development on one side, then I would say
that argument to protect the residents
from continued development of town houses
may be moot because there has been
subsequent development of a town house
development on one side of the property.
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MEMBER NICHOLAS: The adjacent
properties are single family properties.
MEMBER ROBERTS: Well, I'm hearing
them -- I'm being corrected.
MEMBER NICHOLAS: The adjacent
properties are single family homes. On
the south side of the -- south, single
family homes, there's a town house in
there.
MEMBER ROBERTS: Okay. So if the
property is still -- on either side if
they're single family, then I would think
that, as Rocky pointed out, what's the
best for the community? And I would
personally say that maintaining the
residential character of Harbor Heights
and I would recommend that we appeal in
their interest.
MEMBER NICHOLAS: That's what we
should have done when we -- there should
have been a rezoning at the same time.
The property owner didn't request to
rezone.
MAYOR PRO TEM HOOG: In one respect
you're right, the property isn't zoned
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R -1. It's zoned commercial. He can just
build an office building there or a gas
station. I think one or two town homes or
even five would be more appealing than an
office building and that's what's going to
happen if it goes that way. I'm sure. I
think town homes would be more appropriate
for that area personally.
MEMBER PETSOS: That's where the
compatibility issue --
MAYOR PRO TEM HOOG: And it would be
more compatible than an office building.
That's his other option if we don't let
him go with that.
MAYOR RANDELS: I can lay out my
interpretation of we're going to pay
Anthony seventy -five hundred dollars to
litigate to the Court of Appeal to get a,
you know, no, you can't build a town house
there. So then what's going to happen?
Commercial building. That's not helping
the community.
MEMBER ROBERTS: I hear you and
you're right. But I did not hear -- I'
think if they wanted to build commercial,
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they would have done that in the first
place.
MAYOR PRO TEM HOOG: I'm just
saying I wouldn't -- I don't think you're
going to spend seventy -five hundred
dollars and take a gamble and you're going
to get -- you may get the answer you want
maybe, but you're not going to get what
you want.
MEMBER ROBERTS: Again, if they come
in with a commercial project, they're
still going to have to deal with the --
MAYOR PRO TEM HOOG: You can't stop
it. Can't stop it.
MAYOR RANDELS: It would be a C -1
zone.
MR. GARGANESE: That also goes a
little bit beyond where we need to go for
this type of meeting other than -- other
than what could potentially happen and how
you could end up with a commercial use if
you do appeal and you don't prevail or
even if you do prevail and the Court says
no town homes, strategically the property
could still have a C -1 use because it's
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C -1 zone now.
MEMBER ROBERTS: Right.
MR. GARGANESE: The only from a
strategic litigation standpoint and
expenditures you could not -- I would not
recommend rezoning the property right now
because you're going to have this pending
appeal regarding special exception, you
know, if this is dispensed within your
favor, you know, that might be one option,
but that's outside the scope of where we
can go for this meeting.
MEMBER PETSOS: Anthony, if we did
not appeal and it comes back to the Board
of Adjustment saying the Court ruling
upheld, can the Board approve it based on
the compatibility of allowing two town
homes there?
MR. GARGANESE: The -- that's
something that we would have to look at
real carefully, you know, in this case
they requested the three and then the
Court does not address that issue nor
should the Court have addressed how',ma'ny.
The density of the project may be back in
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play. They wanted three, you know, they
may be able to consider two.
MAYOR PRO TEM HOOG: In the zoning
hearing they had less than one. One less
than what they could build.
MR. GARGANESE: Yeah, I think they
came in at less than what the maximum code
would allow. I think that's correct.
Again, that's an issue for the Board if we
get to that point.
MEMBER PETSOS: But it's something
they could address if we decided not to
appeal.
MR. GARGANESE: Perhaps. Again, if
they address that based upon, you know,
the information that's in the record.
MEMBER ROBERTS: How much have we
expended to date on attorney's fees?
MR. GARGANESE: I don't know the
exact figure. Probably seventy -five to,
you know, ten thousand range would be my
guess. First tier review is much more
time consuming because competent and
substantial evidence issue is at play.
This would be more of a misapplication of
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the law. It's not so record intensive.
MAYOR RANDELS: Misapplication of the
law just seems like a technicality, you
know, considering what the compatibility
is of that area and to me the
compatibility is more of a residential
nature instead of commercial and
residential in our own -- shows that town
homes are compatible in that area. I
would hesitate myself to bring an appeal.
MAYOR PRO TEM HOOG: That's what I
hinted on. I thought you said possible
misinterpretation. My question was, did
you litigate that attach and detach part
Of it?
MR. GARGANESE: Yes. They left it
out of their opinion.
MAYOR RANDELS: I spoke, but I was
not corrected, and it has to do with the
acreage here. The original application
showed that they could have six
residential maximum whole site units
there. It's point four one. They asked
for three. Four point.,four one acres. It
will carry legally six proposed units per
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density.
MR. GARGANESE: Hypothetically, you
know, they might come back and change that
after. Maybe they want five.
MAYOR RANDELS: I think it boils down
to really on one hand we got this five or
six, seven page of the residents that live
in that section of the community saying
we're opposed to building any multifamily
units up to and including duplexes, town
houses, condominiums assuming they knew
what they were signing or what they
requested here. This was on one side I
don't think the -- if we win, I'm not
sure we've won anything. I hear the
residents saying take it to wall. We want
you to defend our rights and they're
asking for something that they don't have
the right to ask for in my opinion because
it is a legitimate use. It's a C -1
property. We have endorsed and permitted
right next to it. We have endorsed and
permitted south of it. Six or eight units
there. In the application they go through
and tell us what the zoning is on each
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side and the use is permissible on that
zoning and we have allowed it since that
time. In that same parcel of land right
next to it we have permitted it. While
this has been in obeyance or being
considered, we have gone ahead and
approved it with the land right adjacent
to it.
MR. GARGANESE: No, I don't think
that's correct.
MAYOR PRO TEM HOOG: This request
being litigated was a second request by
the other side.
MR. GARGANESE: The property is
surrounded by single family. I mean,
adjacent to it. Single family on both
sides and across the street.
Well, I need, you know, if Council is
inclined to, you know, appeal, we cannot
take a vote during the closed portion, the
agenda is set up for you to authorize the
appeal. If you don't want to appeal, you
don't need to take any action and, you
know, would just be to let the
appellate time period expire and then the
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matter would be brought back to the
Board of Adjustment in about thirty days
or so.
MAYOR RANDELS: So our options
are -- will automatically come back to
the Board of Adjustment for their
appeal -- for their review because that's
where it's been remanded unless we say
stop it and send it back up. Send it to
the next level.
MEMBER ROBERTS: Is the community
aware of the Court's decision?
MR. BOUCHER: We haven't publicly
announced it on its Web site. We could
probably put it on the Web site so people
could read it. But there hasn't been a
press release or any public official
notification.
MAYOR PRO TEM HOOG: Was this not
notified because it's a sequestered
hearing? They've already been notified or
not?
MR. GARGANESE: I mean, it's public.
It's on the Court docket.
MR. BOUCHER: No. No. It's general
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public.
MEMBER PETSOS: It's not been
announced, but some of the residents up in
that area know about it; correct?
MR. BOUCHER: I would imagine. Yes.
I understand that if they come back and
they bring up a density saying, you know,
they requested three units and they want
to go to the maximum allowed, well,
wouldn't that change -- change the table
that was set on this appeal because now
you're overloading, you know, you have a
higher density than what was originally
put on appeal, so obviously the residents
can come back with a whole new argument
because the application changed?
MR. GARGANESE: Well, the argument
right. If they came back and amended
their application to request four or five
town homes, I think the Board would then
have to consider whether the increase from
three to four or three to five presents
compatibility question. I think the town
home issue would be foreclosed by this'
opinion from the Court. The Court doesn't
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see the distinction between detached
single family homes and town homes.
They're single family. The way I read
this decision, they should be treated the
same under the existing ordinances of the
City. But density might present an issue
when the Board revisits this again.
MAYOR RANDELS: Well, we're nearing
the time that we had allocated. We could
go a little longer. But is there any
questions we need to ask the attorney?
And I guess the action that we have to
take, if indeed it is our decision to go
forward, we would ask that it be remanded
back, that it be appealed. If there's no
desire for that, it would just run its
course and come to the Board of Adjustment
for their review.
MAYOR PRO TEM HOOG: I'm going to
hang my hat out. I personally want to
appeal on the fact that we're going to
hint on every possibility that detached
versus attached and then I think the
second thing if we need to go to appeal,
if we do did go, then the thing I would
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hate is to see what would happen to that
property because we would have no choice
but to build commercial. You're taking
out the realm of being able to build
anything. Because they stood here and
told us that the cost of the lot would
preclude them building a single
family house and being able to market
it.
MEMBER ROBERTS: How many single
family houses could be built on that
property? Just one?
MAYOR PRO TEM HOOD: Just one. They
have to subdivide it --
MEMBER NICHOLAS: I think
seventy -five hundred square feet.
MAYOR RANDELS: It's point four one
acres which would allow about fifteen
units of density of six units.
MEMBER ROBERTS: So it would be one
house.
MAYOR PRO TEM HOOG: I would also
like to disclose I'm not basing my
thoughts on my friendship with Mr. Morgan.
I am in no way, if it was something
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that -- it's -- I have never discussed it
with Mr. Morgan and I don't want to
discuss this case with him until it's over
with. So I'll just put that on the
record.
MAYOR RANDELS: The law is kind of an
odd shaped animal and I'll pass this down
there, so indeed it wouldn't suggest
itself to single family. It wouldn't
be eligible because it's just kind
of --
MEMBER NICHOLAS: Could we at this
point make a motion or a --
MR. GARGANESE: No. No motion during
the attorney- client session. I just
really need a consensus right now what
we -- just like to hear each individual's
thoughts on whether or not to appeal and,
you know, I just need to get that
direction and, you know, during the open
forum section of the meeting for the
Council to take any action that they deem
necessary.
MEMBER PETSOS: Like I said earlier,
I would not be supportive of an appeal. I
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think common sense needs to come into this
somewhere and do we hold them to the fire
and tell them go commercial or do we work
with them and maybe through Board of
Adjustments like I -- bring up two units
and see what they can do. I mean, I think
it's reasonable to look that way rather
than an appeal.
MAYOR RANDELS: Okay. Our task is,
you know, we can't solve the problem. Our
task is to tell us what to do and that
leaves for the Chair to --
MEMBER NICHOLAS: I would support the
appeal based on the desires --
MEMBER ROBERTS: And I'm going to
support the appeal.
MAYOR RANDELS: Okay. It appears we
have two for and two against. I guess the
note that I put down to myself is could we
strengthen the detached versus the
attached argument and I'm not sure we
could. If we appeal and win, what do we
win? We win something else other than
what the residents want I'm sure. I guess
all I have to say is my choice would be
M
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not to appeal and I base that on the fact
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that sometimes we ask for things that we
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don't want and we get them. And so I
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would have to say we have three votes for
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no appeal and two for yes and there would
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be not action going forward to the
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attorney. Do I understand this
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correctly?
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MR. GARGANESE: I think you can --
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we'll end the attorney- client session. If
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you want to make that in the form of a
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motion, you could vote on it during the
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open portion or you can -- we'll let the
lapse,.
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time period
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MAYOR RANDELS: Whatever be the
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desire of the Council. I have no problems
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with what we've done. If you desire to
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close this and open up the regular session
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and have a motion or just let it stand on
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what we have done now, we could go.
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MEMBER ROBERTS: I think we owe it to
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the community to evidence what we have
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voted on.
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MR. GARGANESE: Okay. So why don't
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we just close the attorney - client portion
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and open the -- open back up to the
public.
(Thereupon, the attorney - client session
was concluded, after which, the public session was
called to order.)
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STATE OF FLORIDA
C E R T I F I C A T E
SS:
COUNTY OF BREVARD)
I, GUISEPPINA ANCONA, Court Reporter and
Notary Public in and for the State of Florida at
Large, certify that I was authorized to and did
stenographically report the foregoing proceedings and
that the transcript is a true and complete record of
my stenographic notes.
DATED this 24th day of December, 2009.
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GUISEPPINA ANCONA
Court Reporter
;UISEPPINAANCONA
M COMMISSION # DD 526571
EXPIRES: April 20, 2010
9a?rka Thru Notary Pudic Urde wftm
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