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HomeMy WebLinkAboutMinutes 06-02-2009CITY COUNCIL REGULAR MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY June 2, 2009 6:00 PM MINUTES CALL TO ORDER: The Chair called the Meeting to Order at 7 P.M. ROLL CALL: Council Members Present: Mayor Pro Tem Council Member Mayor Council Member Council Member Others Present: City Manager City Attorney City Clerk Recreation Director Public Works Director Assistant Public Works Director Building Official Planning and Development Director REPORTS: City Manager Bob Hoog Buzz Petsos Rocky Randels Shannon Roberts Betty Walsh Bennett Boucher Anthony Garganese Susan Stills Robert Lefever Walter Bandish Jeff Ratliff Todd Morley Barry Brown • The City Manager introduced Cocoa Beach Vice Mayor Kevin Pruitt, who provided some insight on the annual Fourth of July fireworks show in Cocoa Beach. He conveyed how Cocoa Beach had difficulty obtaining a barge in the past, but they now have obtained a certified barge. Vice Mayor Pruitt informed that Ron Jon's Surf Shop will continue to be the premier sponsor. He informed that the City of Cocoa Beach was attempting to coordinate funding in order to make this a repeatable event. Vice Mayor Pruitt informed that they currently had $43,000 and he asked the Council if the City of Cape Canaveral could contribute to this year's fireworks event. Mayor Pro Tem Hoog offered a personal commitment from Hoog Electric and said that he would also seek contributions from other organizations too. Mr. Petsos added that all of City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 2 of 17 also seek contributions from other organizations too. Mr. Petsos added that all of Council should seek contributions. Vice Mayor Pruitt informed that the Cocoa Beach Commission would make their final decisions on the event at their Commission Meeting on Thursday, June 4th. Mr. Petsos asked if he had contacted the Cocoa Beach Area Chamber of Commerce. Vice Mayor Pruitt affirmed that he did. Vice Mayor Pruitt informed that the City of Cocoa Beach set aside $15,000 in their previous Budget for this event. Mr. Leo Nicholas asked if there were any interest in contributing from the Tourist Development Council. Vice Mayor Pruitt replied that the event, although it would attract tourists, was mainly a focal point of interest for residents. Mayor Randels informed how Cape Canaveral also received a request from the City of Melbourne. Ms. Roberts mentioned that Cape Canaveral residents would enjoy the fireworks and a contribution from Cape Canaveral would present a branding opportunity in using the City's name in the headline. Vice Mayor Pruitt responded that he would need to seek approval from the Commission before adding Cape Canaveral to the event headline. Ms. Walsh mentioned how people were disappointed last year that there were no fireworks. Mayor Pro Tem Hoog pointed out how a central fireworks show in Brevard County uniting the efforts of Cocoa Beach and the City of Melbourne and others who provide fireworks events. Mr. Petsos stated that he, like Mayor Pro Tem Hoog, would be happy to assist with fundraising. Mr. Tom Garboski, of Surf Drive, recommended that the City provide the funds with the agreement that the event be held in Cape Canaveral every other year. However, discussion brought out that the area that a barge would need was not in the City. Mr. Boucher informed that the Council was at liberty to use money from the General Fund Reserve Fund; however, he cautioned that the Council would be required to make some important budgetary decisions in the coming year. Ms. Walsh asked Vice Mayor Pruitt for the specifics on how someone would make a contribution to the fireworks event. Vice Mayor Pruitt stated that checks could be made payable to: Cocoa Beach -Cape Canaveral Fourth of July Fireworks Show mailed to Cocoa Beach City Hall, ATTN: Fireworks Show, 2 South Orlando Avenue, or donations could be dropped off at the Cocoa Beach City Hall and obtain a receipt. Mayor Randels clarified that the City would commit $10,000 with the help of donations from the residents. Ms. Walsh clarified that Cocoa Beach would need to notify Cape Canaveral of the difference in the donations received from what was still needed. Ms. Roberts emphasized the branding opportunity for the Cape Canaveral name to be included in the event as the Cocoa Beach -Cape Canaveral Fireworks Show. Mayor Randels restated that the City would commit to the $10,000 with donations from the residents. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 3 of 17 Ms. Roberts asked if there would be any problem with the Commission having a jointly - named fireworks. Vice Mayor Pruitt responded that he would bring up the concept of a jointly -named event at the Cocoa Beach City Commission Meeting on Thursday, June 4th; however, he said that he did not foresee a problem. In conclusion, Ms. Roberts replied that funds would not be forwarded to Cocoa Beach unless the Commission was in favor of receiving the funds based on the jointly -name concept. A motion was made by Ms. Roberts and seconded by Mayor Randels to Commit $10,000 for the Cocoa Beach -Cape Canaveral Fireworks Display for the Month of July 2009. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. Mr. Boucher distributed the sign -in sheet from the Solid Waste Proposal Pre - Conference Meeting. There were 14 Vendors in attendance. Mr. Boucher informed that he would send out an Addendum to the Proposal in the upcoming week and clarified that his Office was the clearinghouse for all Proposal information. Ms. Roberts asked if the Vendors thought the requirements were reasonable. Mr. Boucher replied that they went through the documents page -by -page. Mr. Boucher asked the Council where they desired to hold the Space Coast League of Cities dinner next April. Mayor Pro Tem Hoog informed that Ron Jon's Cape Caribe Resort has a restaurant. Mr. John Grandlich, on behalf of the Ron Jon Resort, informed that the hotel has a restaurant operated by a tenant; however he could speak with the owners and obtain their capacity number and provide that information to the City. The Space Coast League of Cities dinner is scheduled for April 12, 2010. Mayor Randels asked that Mr. Grandlich notify the City Manager's Office when he gets the capacity information. Mr. Boucher distributed a request by Public Works related to three locations that had Stormwater pipe damage. Jeff Ratliff, Assistant Public Works Director, distributed photos related to the damage. He explained how the pipe had come apart at two locations and in two places at one location. Mr. Ratliff stated that they planned to replace the entire pipe and the inlets on Lincoln Avenue. MOTION FOR AN ADD-ON ITEM A motion was made by Ms. Roberts and seconded by Mr. Petsos for an Add -On Item for Emergency Repairs to Lincoln/ Ridgewood Avenue and Columbia Drive. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. • Mr. Petsos asked Mr. Bandish if the pricing from Atlantic Development were in line with all pricing he found. Mr. Bandish replied that he pursued joint use with the City of Cocoa and the Town of Indialantic who have standing contracts with Atlantic Development for repairs. Ms. Roberts asked if there were other anticipated problem City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 4 of 17 areas related to the condition of any other stormwater system in the City. Mr. Bandish replied that they were aggressively working to televise the lines. Ms. Roberts said that this brings to mind the Master Stormwater System Plan which she hoped would provide a broader picture of the condition of the City infrastructure. Mayor Pro Tem Hoog asked how often these piggyback Bids were reviewed for comparative pricing. Mr. Bandish replied that he worked with the Town of Indialantic, City of Cocoa, and City of Rockledge who reviewed their Bids every three years. Mayor Pro Tem Hoog conveyed that there might be a company who is in need of the work and could do it at a lower cost. Mr. Bandish assured that Atlantic Development was a trusted vendor. Mr. Bandish noted that Atlantic Development were the lowest in pricing for the inlets. Mayor Pro Tem Hoog asked if the City planned to make repairs in Harbor Heights. Mr. Bandish replied that Public Works is working on the north -south line and conducting an aggressive investigation of the main line. Ms. Walsh asked if the City ever negotiated cost estimates with vendors. Mr. Bandish replied that at times the vendor might reduce pricing; however, it would depend on the type of work required. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Perform the Emergency Repairs for Atlantic Development in the Amount of $38,000. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. • Mr. Boucher reminded of the upcoming Workshop between the City Council and the Sheriffs Office on Tuesday, June 9th beginning at 5:30 P.M. • Mr. Boucher distributed his reply from the State Attorney's Office related to the alleged Sunshine Law violation for Mayor Randels and Council Members Roberts and Walsh. The State Attorney's Office opined that the spirit and intent of the technical requirements of the Sunshine Law were not followed when the Mayor and two City Council Members continued to discuss matters that had not completely resolved within the timeframe of the properly noticed Meeting. The State Attorney's Office would not, however, issue any sanctions against the Council Members and advised the Council to refrain from such conduct in the future. • Mr. Boucher recognized the City Clerk for 15 years of employment with the City. STAFF Recreation Director • Mr. Lefever announced the Movie in the Park for Friday, June 5th, "Hotel for Dogs." • Mr. Boucher commended Mr. Lefever on a successful Board Member Appreciation Dinner on Saturday, May 30th. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 5 of 17 Public Works Director • No report. Assistant Public Works Director • No report. Planning and Development Director • Mr. Brown reported that Space Coast Government Television is currently broadcasting the First Visioning Workshop Meeting of May 14th. Air Times: Monday, June 1st, Thursday, June 4 at 8 A.M. and Tuesday, June 9th at 1 P.M. Air time information is available to the public on the City web site. • Mr. Brown announced the next Visioning Workshop on Thursday, June 11th at 6 P.M. at the Radisson Resort at the Pavilion Room, west of the Conference Center. • Mr. Brown also announced that the new flyer, a television air time schedule, and a summary of the first Workshop Meeting, with the likes, dislikes, and comments of the video that was shown at the First Meeting would be available on the City web site. There will also be a Visioning Workshop outline to provide more detail about the upcoming Workshops. Mr. Brown announced that he had flyers available for City Council and the audience. • Mr. Petsos thanked Mr. Brown and Mr. Morley for the weekly reports that they supply to the Council. Building Official • No report. City Clerk • No report. City Attorney • No report. Business & Cultural Development Board Report • No report. AUDIENCE TO BE HEARD: 6:30 p.m. — 6:50 p.m. • Mr. Frank Kuhn addressed the Council saying that based on the information that he received from the Mayor that the City Manager earns over $150,000 for a City of 1.9 square miles and that supervises six employees. Mr. Kuhn also stated how, at no time, had he ever heard of an indefinite contract such as that for the City Manager. Mr. Kuhn also stated that he contacted NASA and he asked how a City Clerk earns $75,000. Mr. Kuhn stated during his time at work, salaries were done City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 6 of 17 based on the number of people supervised. Mr. Kuhn stated that he could not believe the salaries the City pays when some people in this City work two jobs to earn $40,000. Mr. Kuhn stated that the Mayor told him that Cape Canaveral compared its salaries with Satellite Beach. However, when he called Satellite Beach, they responded that they were unaware of it. Mr. Kuhn stated that there were also no other cities that pays as much for Law Enforcement either. Mr. Leo Nicholas reminded that he had asked at the previous City Council Meeting about security from the Sheriff's Office at Canaveral Port Authority. He had heard that the Port was not going to renew the Sheriffs contract this year and he asked how this would impact the City's financial obligation. The City Manager replied that the Port has a two-year contract with the Sheriffs Office. The Port was working to gain better control of some secure areas through private security and they would probably use the Sheriffs Office for the open areas. CONSENT AGENDA: 6:50 p.m. — 7:00 p.m. Motion to Approve: City Council Workshop Meeting Minutes of May 5, 2009 and Regular Meeting Minutes of May 5, 2009 and May 19, 2009. 2. Motion to Approve: Annual Renewal of Professional Services Agreement with Professional Diversified Services, Inc. for Mowing & Maintenance of City Landscaped Areas. 3. Motion to Approve: Stormwater Pipe Repairs and Inlet Replacements in the Amount of $6,350. 4. Motion to Approve: Outdoor Entertainment Permit — Movie at Manatee Park, Recreation Department. Ms. Walsh requested to review Item No. 1. Ms. Roberts requested to remove Items No. 2 and 4. A motion was made by Ms. Roberts and seconded by Mr. Petsos to Approve Consent Agenda Item No. 3. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. Ms. Walsh stated that she reviewed and agreed with the corrections that Ms. Roberts made to the May 19th Meeting Minutes. Ms. Walsh referred to the Regular Meeting Minutes of May 5th and requested a verbatim transcript of the first section related to the Sunshine Law issue. Mayor Randels clarified that the verbatim section in request was under the City Manager's report related to a Breach in Public Trust up to the Second bullet which reads, "Staff attended an Economic Stimulus Meeting." Ms. Roberts City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 7 of 17 acknowledged her amendments to the May 5th Meeting Minutes in addition to Ms. Walsh's request. Attorney Garganese reviewed for clarification that Ms. Walsh was seeking a verbatim of the portion of the Meeting which related to the City Manager's allegation of a breach of Public Trust and not the part which involved the tape that the City Manager played during that time. Ms. Walsh clarified and affirmed that she was seeking a verbatim of the discussion which related to the audio only. Motion to Approve: City Council Workshop Meeting Minutes of May 5, 2009 and Regular Meeting Minutes of May 5, 2009 and May 19, 2009. A motion was made by Ms. Roberts and seconded by Mayor Pro Tem Hoog to Approve the City Council Workshop Meeting Minutes of May 5th and the City Council Regular Meeting Minutes of May 19th with the Proposed Changes submitted by Ms. Roberts. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. A motion was made by Ms. Walsh and seconded by Ms. Roberts for the City Clerk to Provide a Verbatim Transcript of the May 5th Regular Meeting Minutes — the First Topic Proposed by the City Manager up to the Second Bullet and to Include Ms. Roberts Amendments for the Remainder of the May 5th Regular Meeting Minutes. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. Attorney Garganese reminded that the May 5th Regular Meeting Minutes would need to come back to the City Council for approval. 2. Motion to Approve: Annual Renewal of Professional Services Agreement with Professional Diversified Services, Inc. for Mowing & Maintenance of City Landscaped Areas. Ms. Roberts asked Mr. Bandish for feedback from the community since this company began working with the City. Mr. Bandish replied that the service has been satisfactory and an enhancement over past service. Ms. Roberts asked if there were any additional service areas or the same area. Mr. Bandish responded all the same areas. 4. Motion to Approve: Outdoor Entertainment Permit — Movie at Manatee Park, Recreation Department. Mr. Lefever affirmed for Ms. Roberts that he distributed notices to the Home Owners Associations adjacent to Manatee Sanctuary Park prior to outdoor events telling them of City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 8 of 17 when he plans to hold an outdoor event, and he also invites them to come and enjoy the event. A motion was made by Ms. Roberts and seconded by Ms. Walsh to Approve Items No. 2 and 4. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. ORDINANCE: Second Public Hearing: 7:00 p.m. — 7:15 p.m. 5. Motion to Adopt: Ordinance No. 06-2009; Economic Development Ad Valorem Tax Exemption. Attorney Garganese read Ordinance No. 06-2009 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; PROVIDING FOR A REFERENDUM ELECTION AND BALLOT LANGUAGE FOR AN ELECTION TO BE SCHEDULED BY THE CITY COUNCIL; PROVIDING FOR AN ECONOMIC DEVELOPMENT AD VALOREM TAX EXEMPTION PURSUANT TO SECTION 196.1995, FLORIDA STATUES; PROVIDING FOR COORDINATION WITH THE SUPERVISOR OF ELECTIONS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. Mr. Nicholas asked if this Referendum negates or supersedes any previous Referendums. Attorney Garganese explained that this would give the City Council authorization to consider an application to abate ad valorem taxes on a case-by-case, property -by -property basis for new business and expansions of existing businesses as those terms are defined in the Florida Statutes for Economic Development. Attorney Garganese clarified that the tax rate is imposed by Referendum. The maximum ad valorem tax abatement that could be granted by the City is within ten years, anywhere from one percent to one hundred percent of the ad valorem taxes that are imposed by the City on that particular piece of property. Attorney Garganese conveyed how this could be used to attract new businesses into the City. He planned to discuss this further under his presentation and how the City could create a "brown field," or economic incentive development area. This would complement it in attracting new businesses. Mr. Tom Garboski, of Surf Drive, asked if these economic development agreements would be binding. Attorney Garganese explained how the City establishes an ad valorem tax rate for the City; that rate generates a variable number of dollars for each parcel of land in the City. A property owner would apply and would take a variable number of dollars, for example, $10,000 and the City Council for a period of one to ten years can reduce that tax from $1.00 to up to $10,000. Attorney Garganese explained that the abatement could not reduce the tax lower than what the property owner was City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 9 of 17 paying [ in taxes] in any particular year. Attorney Garganese replied to Mr. Dunn that this would not apply to vacation rentals. Attorney Garganese explained how in a new commercial community it creates ten new jobs at a minimum. The type of business would need to meet the Statutory requirements. Ms. Roberts referred to the bottom of Page 2 and expressed her concern that the voter needs to understand why the Referendum was being proposed. Attorney Garganese replied that this was a question which under State Law must present the question word- for-word. Ms. Walsh expressed her appreciation for Ms. Roberts' intent for the voter's to understand the Referendum, and she also expressed the importance of letting the residents know that the reason behind the Ordinance was so that the City could compete for and create jobs here in Cape Canaveral. Attorney Garganese informed that the Council would have the ability prior to the election to send out information regarding this question explaining its details. However, depending on how the Governor adopts further legislation, the Council would not be able to advocate the Referendum. A motion was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Approve Ordinance No. 06-2009; Economic Development Ad Valorem Tax Exemption at First Reading. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. ORDINANCE: First Public Hearing: 7:15 p.m. — 8:15 p.m. 6. Motion to Approve: Ordinance No. 05-2009; Sign Code Ordinance. Attorney Garganese read Ordinance No. 05-2009 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, ADOPTING A NEW CHAPTER 94, SIGNS, OF THE CODE OF ORDINANCES; PROVIDING FOR THE PURPOSE AND SCOPE OF THE CHAPTER, DEFINITIONS, THE REGULATION OF TEMPORARY SIGNS, SIGN APPLICATION, PERMIT, INSPECTION PROCEDURES, ZONING DISTRICT RESTRICTIONS, SIZE, TYPE AND PLACEMENT REQUIREMENTS; PROVIDING FOR ENFORCEMENT REGULATIONS; PROVIDING A STATEMENT OF VIEW POINT NEUTRAL INTENT RELATIVE TO MESSAGES ON SIGNS; PROVIDING FOR OTHER MISCELLANEOUS AMENDMENTS; AMENDING APPENDIX B SCHEDULE OF FEES RELATED TO SIGN PERMIT FEES; MAKING CONFORMING AMENDMENTS TO THE CITY CODE; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND EFFECTIVE DATE. Mayor Randels clarified that this would make the signs non -content based and considered for size and location only. Ms. Walsh questioned if the Memo from the Planning and Zoning Board raised many issue at their March 25th Meeting and she asked if these were reflected in the revised Draft. Ms. Joyce Hamilton contended that some of the amendments were not reflected in the Draft, specifically those relating to the height of the City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 10 of 17 monument sign. Mayor Pro Tem Hoog explained that Ms. Hamilton was referring to the 20 -foot maximum height and that the monument would allow the electronic sign and under the Code, the City limits that to 10 -feet high. Ms. Roberts replied that the intent was to keep the signage low. Todd Morley, Building Official, recollected that 10 -feet were suggested as a good size for a monument sign. Ms. Hamilton stated her recollection that 10 -feet could not be seen over some of the cars. Mayor Randels asked if Ms. Hamilton desired to see a 20 -foot monument sign; however, the City Attorney stated that 20 -feet were not what the Local Planning Agency recommended. Mr. David Schirtzinger stated his recollection of a maximum height of 20 -feet for an electronic sign; however, a monument sign was discussed at no higher than 10 -feet. Mayor Pro Tem Hoog brought out how 20 -feet should stipulate whether it refers to the top or the bottom of the sign which, based on the measurement, would allow more footage. Ms. Hamilton referred to Page 1, Third Whereas and Pages 26 through 28, Viewpoint Neutral, and summarized how this provision eliminated off -premise signs by removing content. Ms. Hamilton emphasized that the City could not regulate for content; therefore, the City was allowing a vendor to display advertising content on their premises for another business off -premises. Attorney Garganese conveyed that this Code does not regulate viewpoint and content which means that no regulation would occur based on content. He stated that the City could look at the content and determine whether it was off -premise and on -premise but the City could not regulate the sign. Mr. Morley conveyed that the City could only make a visual assumption that what was advertised relates to the property. Ms. Hamilton stated that some direction was needed to ascertain if it were an off- premise sign. Attorney Garganese referred to the bottom of Page 5 for a definition of an off -or -on premises sign. Mr. Morley explained that content -neutral; and viewpoint -neutral was not regulated until the City passed the threshold of whether it was related to the property. Mr. Boucher stated that the signage was regulated based on off -premise, or on -premise. Mr. Nicholas stated that more clarification was needed because another Building Official may interpret it differently. Attorney Garganese explained for the Council, referring to the bottom of Page 5, that there were specific definitions in the Code for on -premise and off - premise signs, for example: Attorney Garganese stated that the things to look for would be: 1) if the content of the sign is identifying an activity conducted on the property, or 2) the products or services that are sold. Discussion followed on adding additional language to Section 94-115 to clarify what is expected after Mayor Randels asked Mr. Morley if he could put the procedures that he follows into a flow chart. Discussion concluded that the definitions were at all times applicable. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 11 of 17 Ms. Hamilton referred back to Pages 21 to 28 that the digital signage height should read 20 -feet. Ms. Roberts stated that the intent of the digital signage and the monument signage was to bring them low. Mayor Pro Tem Hoog referred to a 30 -foot pole sign and asked how a business could incorporate an electronic sign into that pole sign. Mayor Randels replied if the sign were reduced to 20 -feet. Attorney Garganese related that pole signs are prohibited pursuant to 94-6 (aa) unless the City Manager determines because of physical characteristics that the property can accommodate a monument sign. Ms. Roberts stated that it was not the City's intent to have tall digital signs. Ms. Walsh pointed out that there was not a sunset date. Mayor Pro Tem Hoog brought out the unfairness to the existing signs which were above 8 to 10 -feet which would not be able to utilize a digital sign. He stated that he would not be in favor of an Ordinance that did not help businesses with their signage. Mr. Boucher clarified that the Ordinance reads that if a business has a hardship obtaining a monument sign for their property; they could obtain a 20 -foot pole sign with an electronic message board. City Council contended that this was not their intent. Mr. Boucher referred to Code Section 94-78 (b), Hardship. Mayor Pro Tem Hoog stated that the current discussion was related to existing pole signs which did not meet Code and were non -conforming. Mr. John Johanson clarified that what the City Attorney said was the Board's intent. Mr. Johanson conveyed that the only addition to the language was the City Attorney suggested a sunset of three to five years and if the Council desired they could do so. If the businesses could not physically comply with the Ordinance, they could apply for the Exception. Mr. Johanson explained how a business could apply for an electronic sign within the 20 -feet of the existing pole sign. Mayor Pro Tem Hoog stated that up to this point, he did not see it written in the Code. Mr. Boucher referred to Code Section 94-78(a) which read, "an electronic sign may be incorporated into a 20 -foot pole sign." Mayor Pro Tem Hoog brought out that a 30 -foot, non -conforming„ pole sign could incorporate an electronic sign into that pole sign but no higher than the line of demarcation. Mr. Morley referred to Code Section 94-78 (a) offering this suggested language, "However, if the property cannot accommodate a monument sign by reason of.... an electronic sign may be incorporated into a pole sign, but such electronic sign shall not exceed 20 -feet to the top of the electronic sign." [Underlining indicates the added language.] Mr. Morley stated that the top of the electronic sign could not exceed 20 -feet. Ms. Walsh asked for the square footage of the electronic sign. Mr. Morley stated that the square footage could not exceed the maximum allowed area combined. Attorney Garganese explained, for example, given existing pole sign which exceeds 20 - feet, if they desire an electronic sign, under a Hardship: 1) the City could allow them to incorporate the electronic sign into the existing pole sign which exceeds 20 -feet, or 2) the City could require them to install a new pole sign not to exceed 20 -feet and then to permit the electronic sign that way. Mr. Petsos brought out another option of lowering a 30 -foot sign. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 12 of 17 Attorney Garganese advised that the Council could continue their discussion on the First Public Hearing on June 16th. No further advertisement is required. A motion was made by Ms. Roberts and seconded by Mayor Randels to Continue the Public Hearing Regarding the Sign Code Ordinance at the City Council Regular Meeting on June 16th at 6:00 P.M. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. RESOLUTION: 8:15 p.m. — 8:30 p.m. 7. Motion to Approve: Resolution No. 2009-17; Supporting the Brevard County Tourist Development Council's "Space Coast Wayfinding Initiative." Attorney Garganese Resolution No. 2009-17 by title. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, TO SUPPORT THE BREVARD COUNTY TOURIST DEVELOPMENT COUNCIL'S "SPACE COAST WAYFINDING INITIATIVE" AND TO PROVIDE THE RESOURCES NECESSARY FOR INSTALLING AND MAINTAINING DISTINCTIVE THEME SIGNAGE WITHIN THE CITY TO ASSIST MOTORISTS, BICYCLISTS AND PEDESTRIANS IN NAVIGATING AROUND THE SPACE COAST AND LOCATING KEY TOURIST DESTINATIONS Mayor Randels stated that Brevard County would be the first County in the nation to implement the Wayfinding Signs. He conveyed how funds have been set aside by the Tourist Development Council to pay for this; however, municipalities shall have the final approval as to whether signs shall be installed within their City limits. Mayor Pro Tem Hoog brought up that the Council voted against this in the past. Mr. Petsos stated that he was in favor of the Whereas Clause which provided cities with final approval. A motion was made by Ms. Roberts and seconded by Mayor Randels to Approve Resolution No. 2009-17; Supporting the Brevard County Tourist Development Council's "Space Coast Wayfinding Initiative". The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. CONSIDERATIONS: 8:30 p.m. — 9:00 p.m. 8. Motion to Approve: Application for Satisfaction or Release of Code Enforcement Lien, John Ribar and Rick Kendust, 210 Canaveral Beach Boulevard. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 13 of 17 Mayor Randels recounted that Mr. Ribar came before the Code Enforcement Board on April 23rd and he was requesting the Council to mitigate the fine. Mayor Randels noted that the trees were an invasive species; however, Mr. Ribar did not obtain a permit. Mr. Morley conveyed that he noted the three different types of penalties: 1) depth -breadth - height [dbh], per -inch, 2) a land clearing penalty per 100 -square foot cleared, 3) and a fine for failure to obtain a permit. Mr. Morley disclosed that Staff cost estimates were also included. Ms. Roberts questioned if the City were addressing land clearing penalty and then the fine. Mayor Pro Tem Hoog pointed out how some of the violators appeared to go outside of the intent of the Ordinance, by offering mitigation for the trees, when making restitution for a violation. He stated that most of the violators pleaded ignorance of the Law and he preferred to treat everyone the same. Mayor Pro Tem Hoog conveyed that he would not be in favor of a motion to reduce the Lien unless it was to recoup Staff costs. Ms. Walsh questioned if this was related to the removal of an invasive tree and was told that the tree caused damaged to their sidewalk. Ms. Walsh asked if this related to a code other than the tree code, Chapter 102. Mr. Morley replied that Chapter 34-97 did not speak of permitting, but Chapter 102 does. Mr. Morley ascertained that all tree removal requires a permit. Attorney Garganese explained that Chapter 34 was a Maintenance Standard and the Chapter 102 violations related to failure to obtain a permit. For the record, the City Attorney asked if the applicant were in the audience. Mr. John Ribar stated that the trees in question were Australian pines at 210 Canaveral Beach Blvd. He is the owner of 210, 212, 214, and 216 Canaveral Beach Blvd which he has owned for 25 years. He explained that he had to replace the sewer laterals over the years and these trees affected the sewer lines for up to 200 -feet. Mr. Ribar stated that he was not attempting to cause a hardship; he desired to clean up an area. Mr. Morley replied to Mr. Petsos that if Mr. Ribar had come in for a permit, he would have been given one. Mr. Morley replied that there was no cost for removing an invasive tree. Mr. Morley assured that if someone from his Department could not go out to identify if the tree were invasive tree, he would seek help from the City Arborist. Mr. Dave Schirtzinger conveyed that the tree permit fees were excessive. Mr. Boucher reminded the Council that based on the Code, if they denied Mr. Ribar's request, he could not come back to the Council for one year. Ms. Walsh asked if a permit were needed for Brazilian pepper trees and she conveyed that she received a different answer from the Plant people [the Streets -Maintenance Department.] Ms. Walsh conveyed that this creates confusion. Mr. Donald Dunn, Planning and Zoning Board Member, brought out that obtaining a permit was important whether the tree was invasive or not. Mr. Petsos clarified that he was not advocating a stricter penalty for removing an invasive species. Attorney Garganese stated that the issue for the Council is to consider whether or not the $750 fine should be reduced cer or satisfied. The factors the Code requires the Council to consider were: 1) the gravity of City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 14 of 17 the violation, 2) the time the violator took to come into compliance, 3) the accrued amount of the Code Enforcement fine, 4) previous or subsequent Code violations, 5) any financial hardship, and 6) any mitigating circumstances why this violation occurred. Mr. Nicholas asked why the Administrative costs were so high. Mayor Pro Tem Hoog replied that all of the fees were compiled around Code Enforcement Board action since August 14, 2008. A motion was made by Ms. Roberts and seconded by Mayor Pro Tem Hoog to Extend the Meeting Time Until 10:30 P.M. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. Mr. John Porter expressed that he understood that permits were not obtained and the parties involved were in violation of removing the said invasive species; however, he expressed his concern that the punishment did not fit the violation. He stated that the City Attorney had presented mitigating reasons why the Council should consider administering Staff costs only. Mr. Porter stated that he and the other applicants did not remove Oaks, Bay, or other beneficial trees. He asked the Council to not set a precedent for paying fines for removing invasive species. Ms. Roberts clarified that the precedent reference was for cases before those presented tonight and the Council was attempting to be consistent until a thorough review of the Tree Ordinance could be administered. Mayor Pro Tem Hoog stated that he only desired to recoup Staffs time and he expressed his disagreement with the Ordinance. Mr. Ribar conveyed his concern with the lengthy process and the amount of Staff time incurred and questioned why Council could not simply make the necessary change to the Code. Ms. Walsh questioned the difference in the use of Section 102 and Section 34-97. Mr. Morley defined the use of the two: 1) Section 102 referred to Tree removal, and 2) Section 34 referred to Property Maintenance Standards. Attorney Garganese explained that Chapter 34 required to all property owners to maintain their property under certain standards. However, a penalty must be imposed for a failure to obtain a permit. Attorney Garganese explained further that the Council could take into consideration: 1) these trees were causing property damage and from a maintenance standpoint were removed; however, this did not eliminate the need of obtaining a permit, and 2) the intent of the tree Code is to encourage the protection of the maximum number of viable trees listed in the desirable species list, further the intent of the tree code is to further protect trees native to Central Florida. Attorney Garganese stated that an applicant can appeal to the Council for a release or reduction of Lien after adjudication which is the circuit breaker in the violation system. He stated that the Council has been consistent in seeking the costs to the City subsequent to Code Enforcement violations. Mr. Petsos inquired about the necessity of three Code Enforcement Hearings. Mr. Morley explained the first was Notice of Hearing and the second to receive a Satisfaction or City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 15 of 17 Reduction of Lien. Mr. Ribar conveyed that one Meeting of the Code Board was tabled because they entered the same type of discussion as the Council related to providing a penalty. A motion was made by Mayor Randels and seconded by Mr. Petsos to Deny the Application for the Reduction or Cancellation of Code Enforcement Lien, for John Ribar and Rick A. Kendust, 210 Canaveral Beach Boulevard. No Action Was Taken on This Motion. Mr. Petsos withdrew his Second to the Motion saying that he made it based on thinking that there was a permit fee for this and he believed that the penalty should only relate to Staff time. Attorney Garganese stated, for the record, that the Second belonged to the Council until its Disposition. He explained that the Council could withdraw the motion by unanimous consent. Mayor Pro Tem Hoog questioned the changing of Staff time rate. Mr. Morley replied that two different costs related to two combined persons Staff time for one incident and only one person working on the other. Mayor Randels asked if there were unanimous support to withdraw the Motion. Mr. Boucher stated that Mr. Ribar conveyed that he had mitigating circumstances and the Code Enforcement Board recommended reducing the cost to Staff time. Mayor Pro Tem Hoog requested a change to the Section of the Code relating to the additional Staff of an applicant seeking a Reduction before the Code Enforcement Board when this already occurs with the Council. Attorney Garganese stated, for the record, that Mr. Ribar has 30 days to make the payment and if this were not done, the amount would return to the original amount of the Lien. A motion was made by Ms. Roberts and seconded by Mayor Pro Tem Hoog to Extend the Meeting Time Until Items 8, 9, and 10 were Completed. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. A motion was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Reduce the Cost of the Code Enforcement Lien, for John Ribar and Rick Kendust, 210 Canaveral Beach Boulevard to $364.28. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. 9. Motion to Approve: Application for Satisfaction or Release of a Pending Code Enforcement Lien, Supra Color Enterprises, Inc., Vacant Lot North of 6615 N. Atlantic Avenue (A1 A). Mr. Morley informed that this Satisfaction and Release would be called a "Pending" issue since his Department had no time to record it in an effort to expedite it. Mr. Petsos clarified City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 16 of 17 that these were invasive Brazilian pepper trees. Mr. Porter, speaking on behalf of Mr. Kurt Tezel, explained how he had someone use a Johnson tractor on his property, not a root rake, and he also contacted Mr. Kurt Tezel to have the same company remove the Brazilian peppers on Mr. Tezel's property. Mr. Porter admitted their mistake of not obtaining a permit which incurred a fine. However, he stated that only the Brazilian peppers were removed, not Live Oaks, Bay, or Palm trees. Mr. Porter emphasized that not obtaining the permit was the violation; however, they did not damage any beneficial trees. Mr. Porter restated that the punishment did not fit the violation. Mayor Randels stated that the charge was for land clearing. Mr. Porter stated that they removed Brazilian peppers and a root rake was not used. Mr. Porter replied to Ms. Roberts that Dennis Clements, Acting Building Official at the time, Duree Alexander, Code Enforcement Officer and also Kay McKee, Street/ Maintenance Supervisor physically visited the property. Ms. Roberts conveyed the dramatic results of the property's appearance after the tree removal. Mr. Porter affirmed that the appearance changed due to the pepper tree removal, but even after obtaining a permit the results would have been the same. Mr. Porter stated that he had no problem paying for Staff time. Mr. Johanson assured that the person using the land clearing equipment was very knowledgeable of trees. A motion was made by Mayor Pro Tem Hoog and seconded by Ms. Walsh to Reduce the Application for Code Enforcement Lien Supra Color Enterprises, Inc., Vacant Lot North of 6615 N. Atlantic Avenue (A1A) to Staff Costs of $730.84. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. 10. Motion to Approve: Application for Satisfaction or Release of Code Enforcement Pending Lien, Banana River, L. P. a/k/a Banana River of Delaware, Ltd., c/o Helen M. Ward, R. A., North Atlantic Avenue Properties. Mr. Porter stated, for the record, that the only difference in his case and Mr. Tezel's was that he had a tree survey performed which would permit the City to identify all of the trees on his property. A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Petsos to Satisfy this Pending Lien Banana River, L. P. a/k/a Banana River of Delaware, Ltd., c/o Helen M. Ward, R. A., North Atlantic Avenue Properties in the Amount of $730.84. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Petsos, For; Mayor Randels, For; Ms. Roberts, For and Ms. Walsh, For. Due to the lateness of the hour, the following Items were not discussed. DISCUSSION: 9:00 p.m. — 9:15 p.m. City of Cape Canaveral, Florida City Council Regular Meeting June 2, 2009 Page 17 of 17 11. Municipal Economic Development Powers REPORTS: 9:15 P.M. — 10:00 P.M. 12. Council Reports ADJOURNMENT: There being no further business, the Meeting adjourned at 11:00 P.M Rocky Randels, MAYOR Susan Stills, CMC, CITY CLERK OFFICE OF THE STATE ATTORNEY EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA BREVARD AND SEMINOLE COUNTIES Viera Office 2725 Judge Fran Jamieson Way Bidg. D Viera, FL 32940 (407) 617-7510 Seminole County Office 100 East First Street Sanford, FL. 32771 (407) 322-7534 Titusville Office 400 S. Street Titusville, FL 32780 (407) 264-6933 Seminole Juvenile Center 190 N. Bush Blvd. Sanford, FL. 32773 (407) 323-2500 NORMAN R. WOLFINGER STATE ATTORNEY Reply To: Viera June 1, 2009 Mr. Bennett Boucher City Manager City of Cape Canaveral P.O. Box 326 Cape Canaveral, Florida 32920-0326 Re: Sunshine Law Dear Boucher: In response to your letter of May 12, 2009, forwarding a written request by the mayor to have the State Attorney investigate the alleged Sunshine Law Violation, this office does not see a need for further investigation of the incident beyond a review of the recording of the April 7, 2009 meeting. However, it is the opinion of this office that the spirit, intent, and technical requirements of that law were not followed when the mayor and two counsel members continued to discuss matters that had not been completely resolved within the time frame of the properly noticed meeting. The Sunshine Law applies to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. Although the council members may have believed that they were just talking about procedures or methods to better gather information; for council meetings to run more efficiently and timely; or possible forms to gather information for evaluations, these were all matters that the counsel discussed that evening in their meeting and were issues that had not been fully resolved. In the case at hand the discussion was limited to these areas and did not show any intent to willfully ignore the Sunshine Law or to deprive the public of input on these issues. However, just because a sanction may not be warranted under these circumstances does not mean that the Sunshine Law is to be taken lightly. Conversation between counsel members about city business outside the public forum of a properly noticed meeting should not occur. We trust that by bringing this matter for review, parties will refrain from such conduct in the future. Mr. Boucher June 1, 2009 Page 2 Thank you for the opportunity to review this matter and provide assistance to the City of Cape Canaveral. Sincerely, NORMAN R. WOLFINGER STATE ATTORNEY BY: ROBERT WAYNE HOLMES ASSISTANT STATE ATTORNEY CHIEF OF OPERATIONS RWH:clr IM Re. CITY OF CAPE CANAVERAL COUNCIL MEETING ATTORNEY/CLIENT SESSION (C(Ony CXe- Close d - TRIPLE J INVESTMENTS, LLC CITY OF CAPE CANAVERAL ATTORNEY/CLIENT SESSION held on June 2, 2009, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida, beginning at the hour of 5:45 p.m. APPEARANCES: City Council Members: City Manager: City Attorneys: L Mayor Rocky Randels Mayor Pro Ten Bob Hoog Commissioner Buzz Petsos Commissioner Shannon Roberts Commissioner Betty Walsh Bennett Boucher Anthony A. Garganese, Esq. Debra S. Babb-Nutcher, Esq. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceedings held June 2, 2009) MAYOR RANDELS: I would like to call this meeting to order, and it will start as an open meeting, and the persons expected to -- would this be the proper place to tell who's here? MR. GARGANESE: Yes. MAYOR RANDELS: The persons scheduled to be in attendance are myself, Mayor Rocky Randels; Mayor Pro Tem, Bob Hoog; Council Members Betty Walsh, Buzz Petsos and Shannon Roberts; City Manager Bennett Boucher; and City Attorney Anthony Garganese and Assistant City Attorney Debra Babb-Nutcher. And they are all present as stated, and also a court reporter is present. And I'll next go to you. MR. GARGANESE: Mayor, thank you very much. The purpose of this meeting is to call an Attorney/Client Session regarding the case Triple J Investments, LLC, versus City of Cape Canaveral, Case Number 608-CV-283-ORL-22DAB, that's currently before the Federal District Court in Orlando. The estimated time of the attorney/client session would be approximately 30 to 45 minutes. At this point -- actually, let me just say before that, I need the advice and direction FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding possible settlement negotiations and litigation strategy moving forward in this case. At this point it would be appropriate to close the open portion of the meeting and let the record reflect that there are no members of the public present during the attorney/client session. This is now officially a closed session, at which point I would like to turn the matter over to the Assistant City Attorney, Debra Babb-Nutcher, to tell you where we are status -wise in this case and also to advise the City Council regarding a settlement offer that we received from the Plaintiff's attorney. Prior to the attorney/client session we provided you a summary of the Plaintiff's allegations in this complaint, as well as some information regarding some discovery, as well as providing you a copy of the May 13, 2009, letter from Plaintiff's attorney, Sheldon Stevens, proposing a settlement of this case, so that gets, you know, at least the Council up to speed regarding those matters and Debra won't get into that so much, so we'll get right into probably the meat and bones, since you have had an opportunity to review that documentation. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Debra? MS. BABB-NUTCHER: We are kind of in the early stages of the discovery phase. Because we're in Federal Court things move fairly quickly, and we have had -- we have done some written discovery where we have asked them to answer some questions. We have gotten some documents from them. They set a lot of depositions in the case. Two depositions were taken so far. Harry Pearson and Earl McMillan were taken just a couple of weeks ago. They decided to cancel the rest of the depositions. They had about four or five other depositions they wanted to take of other board members, and they called to cancel -- Plaintiff's attorney called to cancel and wanted to discuss settlement. You have a copy of the letter that they had previously sent making a demand for $80,000 in the case. They have had -- we have had some discussions with their attorney that they were looking really for perhaps their attorney fees in the Writ of Certiorari action. In terms of the progress of the federal case -- as you know, this is now a federal case. We removed it to Federal Court. We don't have a FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whole lot of time for discovery, so the fact that they have canceled their depositions tells me a couple of things: Number one, they want to settle; number two, I'm also getting the impression that they don't want to spend a lot of money on attorney fees. And because we're in Federal Court, we have definite deadlines. We have a discovery deadline in August, meaning all discovery must be done in August. Meaning, again, they have got to hurry up and finish their discovery, take their depositions. We need to take any depositions we might want to take within the next few months, which is expensive. It's expensive to do that. I myself have put this case in the posture of getting it ready for what's called the Motion for Summary Judgment. I have probably got about 15 pages of a Motion for Summary Judgment already drafted. We typically don't file a summary judgment motion until you get all your discovery done. I feel pretty comfortable with where we are in the case in terms of success on the summary judgment motion. It's just a matter of getting the depositions done and any further discovery done, which, again, for both sides is going to cost some FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 money, and everyone is mindful of the expenses that are involved. I have done a summary of the allegations. This is not my opinion of their case in any way. This is not our opinion. This is just me taking their Complaint and their Answers to Interrogatories. I simply sent them a list of questions saying please give me your support for this allegation, please give me an explanation of that allegation, and this is me summarizing what they are stating. And if you have any questions about their arguments or their allegations, I can try and answer them for you. If you have any questions about how the City can rebut those allegations, I feel very comfortable that we can rebut all of their allegations. I do. The case law is pretty solid -- the federal case law is pretty solid. What they are asking for in my opinion is not compensable. They are -- they feel like they are wronged, I imagine, and they feel like because they won on the Writ of Certiorari that somehow that should translate to damages, but it doesn't. Because you get a court to overturn a decision FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 I 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of one of your boards does not necessarily equate with now you have to pay us money damages, and there was specific federal case law on this point. They are not entitled to damages simply because a court decided that the Board of Adjustment made a wrong decision. Now, the only thing we would possibly have an issue with is if there is some kind of bias or extreme arbitrary, unreasonable, capricious actions by the board members. And, again, I have dug through the transcripts, I have gone through the meeting minutes, and that arbitrary, capricious conduct is in my opinion just not there. That kind of boils down their arguments and how I would respond to their arguments with a summary judgment motion. I can answer any further questions you might have about the substance of their arguments or the substance of what our rebuttal would be, but I think the bottom line for me as the person litigating the case is I feel very comfortable with the City's defense in the case. I feel that we can win the case; however, it's expensive. It's expensive to litigate in Federal Court. It's expensive to take depositions. Even FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 7 1 2 3 4 5 6 7 8 r'. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if I'm not taking depositions, I'm still sitting there in the depositions for a couple of hours. I'm asking questions as well, and at some point I'm going to have to take depositions of some of the principals of Triple J, so we are always mindful of the fees and costs that are going to be involved in the litigation. Even if we were comfortable with where we are in defending the case, that is something we take into consideration. MAYOR RANDELS: Debra, did I detect in the beginning of your opening statement that perhaps you could read the offering figure was not really a bottom-line figure? MS. BABB-NUTCHER: I think that that was a starting point. I think that there was -- that was something to get the ball rolling. MAYOR RANDELS: Okay. Probably on the high side or -- certainly can't go up after you make an offer of lower amount? MS. BABB-NUTCHER: I have never seen it, but -- MAYOR RANDELS: Would that be realistic expenses that actually have been incurred by their firm? MS. BABB-NUTCHER: Well, personally, I think FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 : 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it is doubtful that they have expended $80,000 in attorney fees. I don't know. I don't know what he's billing by the hour. But it's certainly a consideration. I don't know that it would be appropriate to ask them, you know, How much exactly did you spend on the Writ of Certiorari, the point where you feel like you won? You won because you appealed the Board of Adjustment decision and you won on that. It may be appropriate for us to ask them: Well, let us know. Did you spend $12,000? $15,000? How much did you spend on the actual Writ of Certiorari? And maybe that would be a more appropriate figure to look at than this $80,000 figure which doesn't appear -- MAYOR RANDELS: Let me stop speaking and I'll pass to them in a moment. But is it customary that a counteroffer is ever made in these situations? MS. BABB-NUTCHER: If we want to try and resolve the case, then we would want to make a counteroffer, yes. MR. GARGANESE: I think what you're hearing from our side is that given the allegations in this case, the City has a strong defense based on the allegations that have been made. We have an offer FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to settle at eighty thousand. The City Council can continue litigating this case, in which case we'll posture it to the point where we think the City will likely prevail, unless something comes up in discovery that we're not aware of today based on the allegations. Alternatively, if you all wanted to make a decision to make a counteroffer to settle this case for some dollar amount, then, you know, you are free to go ahead and do that to try to resolve the case, avoid any additional litigation expenses, avoid the possibility that something may come up in discovery that we're not aware of right now that could be damaging to the City. I don't know if there is anything out there, but you never know. So that's where you are. MAYOR RANDELS: Okay. MR. GARGANESE: So, Mayor, to answer your question, it depends on the Council what you want to do. If you're interested in settling, then you need to come up with a good counteroffer, and we'll bring it back to the other side and see if we can settle the case. MAYOR RANDELS: I'll start this way and go to the right. Mayor Pro Tem, you have some thoughts FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on this? MAYOR PRO TEM HOOG: Well, my feelings on this personally if our attorneys -- and I'm directing this directly to you, because I have directed them many times in the past. I have been to many of the P&Z meetings, many of the Board of Adjustment meetings. Those I have a personal interest in because of the quasi -boards that we have, and I have asked and asked and asked that when these guys get offtrack -- I'm not saying that I sit here and I'm perfect by any means, but I sit and I listen to those board members get off into areas where they shouldn't go, even if it's down into the Community Appearance Board asking for a site plan. They have no business asking for that type of thing. And these people, PH, and I read these allegations -- are these all on tape? MS. BABB-NUTCHER: I cannot substantiate their allegations. Their allegations are excessive. MAYOR PRO TEM HOOG: Some of the statements that are in here, if they were stated in the open public meeting, that's where the attorney should step in and say, "Wait a minute, you're stepping out of the box." They have no right to go against making a FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 special exception not heard or not being valid under the pretenses that they come in and their packages meet all the criteria, how can the board say no? And then to have statements made that, you know, Cathy Barnes, she would never vote for another special exception. She has that prerogative to do that, but what's her reason? Not just because -- I guess you have those answers. I don't know. MS. BABB-NUTCHER: On the Cathy Barnes comment, I was not able to find anything where she had said that. COMMISSIONER ROBERTS: I think consistent with what Bob's saying, though, having attended some of those PH meetings, a lot of what is recorded -- I mean the recording would be different than what you pick up on the written minutes. MS. BABB-NUTCHER: We got transcripts of all of the meeting minutes that they are alleging -- they have alleged, you know, five or six meetings' minutes where there are what they claim are inappropriate comments, and I have read through every single verbatim transcript, and we've had Susan Chapman type up the transcript of every FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meeting that they have told us is a meeting where improper statements were made, and there were statements made such as, "This property should have been rezoned R1 a long time ago." I don't think there is anything wrong with that statement. Considering the role of the P&Z, what is wrong with their general statements that this should not be commercial property, the City should have rezoned that a long time ago? That is not an arbitrary or capricious or an abuse of discretion. That's included within their role -- from my opinion that's included. And it always comes right down to the compatibility issue, which in this case compatibility was the whole issue on this particular application. MAYOR PRO TEM HOOG: Let's just go down to the Earl McMillan statement, page two, the last comment: "Earl had a personal conflict with Mr. Morgan, Sr., when Mr. Morgan was building official." Now, he, I assume, personally stated this -to John Johanson after the meeting. MS. BABB-NUTCHER: And Earl denies that. He stated in deposition -- MAYOR PRO TEM HOOG: He denies that? FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BABB-NUTCHER: He directly was asked that question by Mr. Stevens: "Did you make this statement to John Johanson?" And he said, "No, I did not make the statement that I have a personal conflict" -- MAYOR PRO TEM HOOG: So there we have one person denying they said something to another person, and the person that was denied was the gentleman that is in question that has the lawsuit against the City. So it's capricious, like you say. I guess that's the right term. I've sat in many of those meetings, and my point is Mr. Garganese, Ms. Latorre, they let this stuff get to the point of here we are today. When they go making statements, you know, like "I'm not going to vote for that because I don't like it," well, that's not the reason we're sitting here. MS. BABB-NUTCHER: They haven't made that statement. COMMISSIONER ROBERTS I have been in the same meetings. MAYOR PRO TEM HOOG: I've seen many of this take place. I have seen the chairperson say, "I don't like your project." That's where our attorney should say, "Wait a minute." FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1 A CEJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER ROBERTS: It's there. MS. BABB-NUTCHER: It's not in any of the transcripts that they have directed us to. MAYOR PRO TEM HOOG: You don't get all the transcripts then. MS. BABB-NUTCHER: But I'm framed by the allegations in their lawsuit, and they are now framed by the allegations in the lawsuit. MAYOR PRO TEM HOOG: What you need to do, then, ma'am, is get the actual meeting minutes and listen to it yourself, because it's stated in there. The transcripts may not show that. MS. BABB-NUTCHER: I have. We have the discs as well. MAYOR PRO TEM HOOG: Well, there is a lot of times when I have sat and I have heard this and I have gone right in the next morning to Mr. Boucher's office, which he can sit here and deny, and say, yes, he has come into my office with this same problem, and we wouldn't be here hearing this kind of stuff. MS. BABB-NUTCHER: Well, I -- MR. GARGANESE: Let's look at it this way. There are allegations that have been made in the complaint. We're going through discovery trying to FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 15 14 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determine whether they could substantiate the allegations, that's number one. Number two, even if they were able to substantiate the allegations, do they rise to a level of a constitutional violation where they should be compensated, which is the legal aspect of it. And what we're telling you is there are a lot of allegations going on, some of which just don't show up in the transcript of the voice recording of the meeting or in the minutes. And we have a deposition where one of the board members is asked point-blank, "Did you make that statement?" And the board member testifies, "No." Okay. So all of this stuff, all this factual gathering, they are trying to prove their allegations, and we're telling you in some cases it's not being proved. You know, as you know, Bob, and I'm not disagreeing with you, you know, we advise the boards constantly: You got to comply -- apply the criteria. You know, can we control what an individual board member says in the middle of a meeting? Absolutely not. But we have trained the board members, you're FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 absolutely right, they need to be making decisions based on criteria that's in the code. You know that they in this case, they applied for a special exception; that special exception was denied by the Board of Adjustment. They appealed -- that's what the Writ of Certiorari is -- and they prevailed. And we brought it to the City Council, and the City Council decided three to two not to appeal the Court's decision. And then, you know, they filed the federal lawsuit. And so the question -- I mean, you know as well as I do, you sat through these Planning & Zoning Board meetings, there are some personal issues going on between some of the board members and Mr. Johanson, who actually sits on the Board. And whether they rise to, again, a constitutional deprivation of some sort that's compensable, when you look at it through those eye glasses, the answer is at this juncture, no. MS. BABB-NUTCHER: And as the litigation attorney, I look at how this is presented to the Court, and you all may have some knowledge about things that have gone on outside of the record or at other meetings, but I am driven by the allegations, and the allegations frame the case, FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and it is too late for them at this stage of the case to change their allegations. So I have my framework, and I don't deny that you all have more knowledge than I do, but I come from the perspective of the litigation attorney who presents the evidence to the Court, and that from the evidence that I have had, yes, there is conversations saying that this property should have been rezoned a long time ago; yes, there is conversations that we shouldn't be allowing special exceptions granted like giving away candy. In fact, I believe you said similar statements. But those kind of statements in my opinion, based upon my research of the law, don't rise to the level of a constitutional deprivation. From what I have seen, and I don't deny there is probably more out there, but based on the allegations, what I have seen does not rise to the level where they should be compensated for a loss of a federal right. MR. GARGANESE: So with that said, under these circumstances do you want to make a monetary counteroffer to try to settle this case? And, you know, if you want to do that, we'll go ahead and bring that to them. This case is being covered by FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insurance. You're getting a defense. I believe the City does not have a deductible -- MS. BABB-NUTCHER: Right. MR. GARGANESE: -- in this case. Your insurance carrier just to do away with this case would likely throw maybe ten or fifteen thousand, somewhere around there, at this case for settlement, or maybe based on our discussions with them a little bit more. What do you all want to do? We'll do whatever you want. This case if you remember, Bob, prior to the Board of Adjustment making a decision, the property owner came to the City: "Do you want to buy the property? Here's what we paid for it, plus the cost of engineering costs we got into it, we'll sell the property to the City." This case from the get -go has been problematic before the Board of Adjustment even made a decision. It's your call. COMMISSIONER PETSOS: I think you answered some of my question, which was are we in contact with the League of Cities who are underwriting this? MR. GARGANESE: I have been. COMMISSIONER PETSOS: Because I wasn't sure FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 *b18W- < , 15 16 17 18 19 20 21 22 23 24 25 whether they felt it was appropriate to settle or whether they thought it was more appropriate to continue on. Because I'm sure you're talking to the insurance side and the attorney side, so what is their opinion? MR. GARGANESE: Their opinion right now is that the case is defensible and they would be willing to put somewhere between, say, the ten and twenty thousand range to settle this case if the Council wanted to pursue it. If the Council said, "We don't want to pursue it," the insurance company will defend the City through Motion for Summary Judgment; or if it gets to trial, through trial, if that's what you all wanted to do. So you're kind of -- Florida League of Cities is really good at that. They want to know what you all think. You need to tell us. COMMISSIONER PETSOS: The second part of my question -- MAYOR RANDELS: Keep going. COMMISSIONER PETSOS: -- and maybe it's a little history for me, and everybody else knows and I'm out in the dark, but we did elect not to appeal. How come it continued on and that we did not just find a way to pay them their attorney's FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 20 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fees at that point in time and be over and done with it? MR. GARGANESE: That's a very good question. Because under Florida law, when you appeal a zoning decision, and the Circuit Court overturns the City's decision, the zoning decision, there is no right to -- there is no right to attorney fees or reimbursement of costs. That's the law in Florida. When you file a Writ of Cert appealing that decision, if you win, there is no right. I mean everyone must have read in the paper -- it happens all the time -- the City of Melbourne was recently overturned by the Circuit Court, and now they are considering whether they want to appeal or what they are going to do with that application. But there is no right to attorney fees. COMMISSIONER PETSOS: So that was their rationale or their reasoning for having to go to Federal Court? MAYOR RANDELS: No, we chose Federal Court. MR. GARGANESE: No. They filed another lawsuit after the City Council decided not to appeal. COMMISSIONER PETSOS: Right. MR. GARGANESE: And then we -- you know, we FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brought that to the Council, and in our opinion because they were raising federal constitutional issues, our opinion was to go to Federal Court. That's -- COMMISSIONER PETSOS: Well, we had no choice at that point because they had taken it to that level of the Federal Court. MR. GARGANESE: They filed the other lawsuit. They filed two lawsuits. They appealed the decision of the Board of Adjustment; that was overturned by the Circuit Court. That case ended. And then they filed the second lawsuit. MAYOR PRO TEM HOOG: They were given a writ of mandate -- or we were given a writ of mandate, and we didn't follow through with it. That's when the other lawsuit got filed. MR. GARGANESE: There was a delay, a small -- there was a little delay. MAYOR PRO TEM HOOG: About a year almost, right? COMMISSIONER PETSOS: Three months, I think, October to February. MR. GARGANESE: And there is a story there too. I mean -- COMMISSIONER WALSH: What is the timeline on FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 22 1 2 3 4 5 6 7 8 9 10 11 12 13 tpo� 14 15 16 17 18 19 20 21 22 that? I mean when it's given to the city versus when they -- MAYOR PRO TEM HOOG: A question about who was going to pay for the other fees that were incurred for another hearing, and we never would pay. MS. BABB-NUTCHER: There is factual issues on that, but that was -- the attorney/client session where you all decided not to appeal was October 1, 2007, and when they actually had the hearing was 3/24/08. MR. GARGANESE: When they decided not to appeal, the mandate was issued, what, a little time after that, so there was a couple of months between the time that the appeal rights were over and it went to the Board of Adjustment, and there is some factual issues as to, you know, why it didn't go. Bennett was speaking with one of the principals of Triple J, and there may have been a misunderstanding. Bennett was trying to coordinate a hearing date, and not until they filed the lawsuit did we realize that, by golly, they wanted the matter resolved right away, and there is a factual issue there. Bennett can speak to that, because I didn't have personal conversations with any of the FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 2.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (W 25 principals about scheduling the Board of Adjustment hearing. Our legal opinion was once the Court overturns the Board of Adjustment, the matter has to go back to the Board of Adjustment, who then rules on remand, and there is case law that says while it might be a little bit perfunctory, it needs to go back to the Board, and -- MS. BABB-NUTCHER: Right, it's not automatic. It's not an automatic thing. MAYOR RANDELS: Go ahead. COMMISSIONER PETSOS: The only other thing, it wasn't a question, more a comment. I do agree even though maybe state law says they are not entitled to any attorney fees or anything, I feel the reasonable thing would have been to pay them the attorney fees since they won, and if that comes up to that $12,000 figure or somewhere in there, if the League of Cities is willing to try to dispense of this for fifteen or twenty thousand, then I would agree with that figure. MAYOR RANDELS: Shannon, do you have some observations? And then go to Betty. COMMISSIONER ROBERTS: Well, I like what Buzz just said. I think that would be the appropriate FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 24 Kq 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 way to go. And I think another opportunity for us -- maybe as a postscript to this is some lessons learned relative to trying to help maybe some improvements that they suggested here I think to -- with regard to the board training, which you had talked about. I know that we continue to be sensitive to that, as well as the time elements, and I think that comes up with our major improvement agenda, too, with some of the things we're trying to do with documentation, tightening some of our time frames. I was a little unclear with regard to the natural steps that they would be taking as it relates to the City after the decision was overturned. In other words what would have been the normal next step? Would they -- they would have normally gone back to the Board of Adjustment? MR. GARGANESE: Absolutely. COMMISSIONER ROBERTS: And their point was they needed to repeat the fees, to do that again; is that correct? MR. GARGANESE: Well, it would be -- when the Circuit Court overturned the Board of Adjustment and the Council decided not to appeal, their FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 9V, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 application for special exception became live again, where the City then could act on it on remand. So when the Council decided they didn't want to appeal, we waited for the 30 -day time period for appeal to expire. I sent the manager an e-mail saying that it's now ready to be put on the Board of Adjustment agenda, so they are advised that the Court overturned the decision, and then they can render a decision on the application. Because the application became live again for the City to act upon, and then, you know, then there is some factual issues there where Bennett was talking to one of the principals about scheduling that Board of Adjustment meeting, but it was always the City's intent to put that application, to put it back before the Board of Adjustment. COMMISSIONER ROBERTS: Bennett, I know you offered to explain a little bit. Can you help us? CITY MANAGER BOUCHER: We had it ready to go. There was e-mails and documentation to show that the city attorney, staff, and everybody were scheduling this meeting. And I had a conversation with Mr. Morgan, Sr., and he told me to hold off because he wanted to explore his options, and being FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a former council member, I said, "Okay. Go explore your options." Because they had a commercial option that they had thrown out on the table previously. So being the condition of the market and the way it was at that time, I didn't know what they were going to do with the property. So when he told me to hold off, I said, okay, and took his word, and down the road they file a lawsuit. COMMISSIONER WALSH: So a verbal conversation you had? CITY MANAGER BOUCHER: Right. But I documented in e-mail to my staff, so it was documented. So as soon as I got that, I sent an e-mail out to staff saying to hold up, and I had a conversation with Mr. Morgan, and so -- MS. BABB-NUTCHER: I believe the building official had a conversation as well. CITY MANAGER BOUCHER: Building official, Ms. Chapman. MS. BABB-NUTCHER: Similar conversation, similar type conversation. COMMISSIONER PETSOS: Not to interrupt, but were there any conversations there? Because in here they refer to having to go through the process FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 27 O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 again and also additional fees. CITY MANAGER BOUCHER: That was never brought to my attention. It was always to reschedule and talking to Ms. Chapman about the allegation she denies ever doing. COMMISSIONER PETSOS: Never going to rPn»irP them to pay CITY MANAGER BOUCHER: Right. MS. BABB-NUTCHER: Because it wouldn't make sense. Because it was going before the Board of Adjustment, the fees would have already been paid. COMMISSIONER PETSOS: Right. CITY MANAGER BOUCHER: And we have done this before with other Board of Adjustments. Like when we had Patriots Park remanded back to us by the Court, we didn't have to do anything other than -- MR. GARGANESE: That's inappropriate. You don't consider the application anew after the Circuit Court overturns. You have to then make the decision based on the Court's opinion. MAYOR PRO TEM HOOG: So what I'm hearing from Ms. McNabb -- MS. BABB-NUTCHER: Nutcher. MAYOR PRO TEM HOOG: I'm sorry. MS. BABB-NUTCHER: That's all right. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 9R 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ar 25 MAYOR PRO TEM HOOG: On page two it says, "In October of 2007 Susan Chapman contacted Mr. Morgan," and this is in reference to reapplying for a special exception. "Mr. Morgan was told to reapply, and there was a discussion about paying extra fees." Who brought up that discussion? MS. BABB-NUTCHER: This is the allegation they have made. CITY MANAGER BOUCHER: That's their allegation. MS. BABB-NUTCHER: This is just their allegation. CITY MANAGER BOUCHER: That's their allegation. Susan Chapman is denying that allegation. MS. BABE-NUTCHER: Plus the e-mails. MAYOR PRO TEM HOOG: The only thing we got is kind of just between two people and nothing -- MS. BABB-NUTCHER: We have Mr. Boucher's e-mail that documents -- CITY MANAGER BOUCHER: I have my e-mails, my documentation, so -- MS. BABB-NUTCHER: Which was very good to have. CITY MANAGER BOUCHER: Yes. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GARGANESE: I mean it's contemporaneous. I can remember the e-mail. I just got off the phone or just got done talking to Jim Morgan, and it's contemporaneous. CITY MANAGER BOUCHER: Right. COMMISSIONER ROBERTS: Then if -- Betty -- I wanted to ask Bennett, what do you think it would be? CITY MANAGER BOUCHER: Well, you know, subsequently we gave them the approval, and they recently got an extension. My feeling is they are in a catch-22 right now, because on the first count the judge won't let them go after attorney fees or -- MS. BABB-NUTCHER: Well, the judge -- basically, their first count is dismissed, and -- CITY MANAGER BOUCHER: And he withheld adjudication of attorney's fees until we were done with the second count, so they can't even try to get attorney fees on the first count until the second count, which we're working on now, is disposed of. Can you give them in a nutshell what the second count is about and what they have to try to prove to achieve success in that count? FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 Rn 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BABB-NUTCHER: The second count is kind of the meat of their complaint. It's alleging the substantive due -process violation and procedural due -process violation, and essentially they are arguing that they didn't get a fair shot is what the bottom line is, and they are basing it on the fact that there was some bias alleged, bias with certain board members; namely, Mr. McMillan asserting that Mr. McMillan had a personal issue with Mr. Morgan, alleged bias with Lamar Russell, who is a P&Z member, and you should know is not a final decision maker, which is an important concept to understand, because he can think whatever he wants, but he's not a final decision maker. It's the final decision makers that matter in a federal case. So Mr. Russell made these comments on how basically he doesn't like these special exceptions in Cl; he thought it was a bad idea that we had commercial there; that the property should have been rezoned. And their argument is he was predisposed to deny us because he just didn't want to grant any more special exceptions in C1 -- that's essentially their argument -- and you're denying us our fundamental constitutional rights to FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 31 1 2 3 4 5 6 7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 develop this property the way we want to develop it, and you have denied us our procedural due -process rights because we did not get a fair and impartial decision maker. MR. GARGANESE: At this point I just want to bring up and remind the Council of an issue, and I brought it up during my presentation when we were talking about processes, okay? Your Planning & Zoning Board not only serves in an advisory capacity on quasi-judicial matters like special exceptions, but they are also your Planning Board. So when all this was going on about this specific application, you had your Planning & Zoning Board and the Council talking about eliminating special exceptions in commercial areas, so you have comments made by Planning & Zoning Board members when they got their planning hat on that's being confused with, well, here's a Planning & Zoning Board member, now I got my Quasi -Judicial Advisory Board hat on, and they are sitting in both capacities. That caused some confusion -- MS. BABB-NUTCHER: Yes. MR. GARGANESE: -- in the record, no question about it. And I advised the Council that in terms FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 32 1 2 3 4 5 6 7 8 9 10 11 12 13 f 14 15 16 17 18 19 20 21 22 23 24 25 of processes, I don't think a Planning Board should be an Advisory Board on Quasi -Judicial Matters for that reason. They are mixing the Planning and the Quasi -Judicial capacity. MS. BABB-NUTCHER: And we have a good account of a timeline. We have gone through a bunch of the meeting minutes on workshops that were done and agenda -item discussion, agenda items that were done, and it matches up real nicely. Starting with in 2005, this issue of special exception in C1 zoning was on a roll. The ball started rolling in about 2005, about a year before their application came forward. So that was already a discussion in the City before they even made their application. COMMISSIONER ROBERTS: I remember that they were probably anticipating approval, because I guess the City had been somewhat lenient on the special exceptions up until then, so that kind of got them caught right in the middle at that time period, as I recall. MR. GARGANESE: The timing of it I have no doubt caused, I think, some confusion. MAYOR PRO TEM HOOG: All of our special exceptions in C1 zoning was basically geared towards the moratorium on AlA, and we kind of kept FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 q 1 2 3 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impressing that it wasn't North Atlantic, wasn't North Atlantic -- MR. GARGANESE: There was some discussion about having North Atlantic -- MAYOR PRO TEM HOOG: Right, it was at that time, but kept gearing back to -- COMMISSIONER ROBERTS: And didn't the Development Board want to have North Atlantic commercial, as I recall? So it was very confusing. That's the reason I like the idea -- MAYOR PRO TEM HOOG: I sat through all the meetings. I'm not convinced -- COMMISSIONER ROBERTS: I did, too, because we were very interested in that -- MAYOR PRO TEM HOOG: -- there wasn't some bias in there, because I sat and listened to it. MR. GARGANESE: It's a contributing factor. MAYOR PRO TEM HOOG: Mr. Russell controls that board, as we all can sit here and well know that. What Mr. Russell says, usually the Board does. Just recently and since John Johanson has been on that Board, I have noticed that Mr. Russell doesn't have control on that Board anymore. But Harry Pearson is somebody that he doesn't control, and Mr. Friedman and Mr. Johanson. The rest of the FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 34 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 people, if Lamar says no, it's no. If Lamar says yes, it's yes. And I have sat through them Board meetings, and I'm not convinced that it's not biased. MAYOR RANDELS: Betty, do you have some - I'm sorry. MAYOR PRO TEM HOOG: Our attorneys can do what they need to do, but I don't think you're going to get a favorable ruling, personally. I really don't. MAYOR RANDELS: Betty, some thoughts? You weren't privy to all this going on two, three, four years ago, but from what you read, what do you think? COMMISSIONER WALSH: I just have a question about the Board of Adjustment. It sounds like years ago when they made a decision it was the decision, and something has changed since then where now it can come in front of Council first; is that true? MS. BABB-NUTCHER: Right. At the time they were the final decision maker and the only appeal was to Circuit Court. COMMISSIONER WALSH: Okay. That clears up a little bit, because I'm sitting here and, like, FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 n C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wait a minute. Also, with the settlement we were talking about maybe going -- I heard both Buzz and Shannon say, and I kind of agree with it, if you go back with a counter -settlement, there is other things in here that they have noted. Is this something we would have to also do or should be doing, where they talk about additional considerations regarding orientation and training of Board members and things like that? MS. BABB-NUTCHER: It would depend on how we wanted to phrase the settlement offer. If we wanted to phrase the settlement offer in terms of: "We will offer you ten thousand dollars, a full release, you dismiss the case, and we're done. We don't do anything else you suggested." Or, "We offer you five thousand dollars and then we'll put on a nice presentation to all the boards explaining proper" -- MAYOR PRO TEM HOOG: That needs to be done regardless. MS. BABB-NUTCHER: Well, we have done it. MAYOR PRO TEM HOOG: But I have raised holy hell, and I'm going to tell you about that since I have been on this Council for six years, that these boards need to be more in line with what they are FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 supposed to do; not what their opinion was and what the public criteria is hollering and going on. They have a criteria to operate out of, not their opinion and not what the public wants, and that's why we're sitting here tonight. COMMISSIONER ROBERTS: I disagree with that. MAYOR PRO TEM HOOG: I sat through that meeting and that meeting of Harbor Heights -- COMMISSIONER ROBERTS: You're absolutely right on that one. MAYOR PRO TEM HOOG: -- and that one was basically what everything was based on, and it's right there in factual print. Lamar Russell lives there and he stated, "We should have zoned that a long time ago." And he's probably right, but that's still an opinion that everybody was listening to, and it was stated publicly, and I was sitting right in the audience. And, yes, I'm looking at where -- I'm accused, I guess, along with Buzz and the other Council member, Leo Nicholas, Rocky Randels, we were all there. But it's not my policy as a Council member to stand up and say, "You are out of order." That's up to that gentleman right over there to do that, FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 27 1 2 3 4 5 6 7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or you, or whoever is sitting in that seat. And that's why we get into these positions, and this isn't the first one we have had like this. We have had Mr. Sauerman and other people in here, and we have been basically in a lawsuit ever since the last three years. It seems like we're never out of lawsuits. We're getting just like Cocoa Beach was eight years ago, ten years ago, whatever. I am tired of hearing these people say what their opinion is. Leave your opinion at home when you come up here. MS. BABB-NUTCHER: I understand that. A lot of their opinion comes down to the bottom line that was before them, which was compatibility. When a Board member says, "This should have been R1," it has to do with compatibility, which absolutely is one of their prime criteria that they should have considered. It's not compatible -- MAYOR PRO TEM HOOG: This is about as incompatible as you can get. You got an R1 sitting right there, you got an R3 sitting there, and now you got a C1 over there that could be developed C1, and I can tell you if they come in here and wanted to put an office building there, they would be -- MR. GARGANESE: They can do it. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 RR 1 (ase, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR PRO TEM HOOG: They would be denied. At that time they would have been denied, I can guarantee it. MAYOR RANDELS: Betty, you had some more opinions, some finishing things? COMMISSIONER WALSH: No, it sounds to me like -- let me just ask this question. If we move forward with the counter -settlement and they accept it, then basically that's what happens? They accept it, this goes away? They can still move forward, because they have an extension on that property, and they can continue to do whatever their -- MR. GARGANESE: Their application was approved after it came back from the appeal. They also applied for a plat, replat. That was approved. You know, they are ready to go. Whenever they are ready to build, they have their permits, and I think maybe they have, what, a one-year extension -- Council granted a one-year extension on their -- CITY MANAGER BOUCHER: The special exception. MR. GARGANESE: -- on the exception, which is allowed under the code. So they are ready to go. If you want to settle and they accept the FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 settlement, we would memorialize it in writing and bring it back to you for a final decision, and in which case if everybody approves, it's done. MAYOR PRO TEM HOOG: What happens if they don't? MR. GARGANESE: Then we're going to finish up with the discovery, take the rest of the depositions. We're going to file a Motion for Summary Judgment, and we'll wait for the Federal Court to rule on our Motion for Summary Judgment. If we prevail, then they can decide what they want to do. If we don't prevail on the Motion for Summary Judgment, then the case will be tried. MS. BABB-NUTCHER: They might counteroffer. MR. GARGANESE: Or they could counter. There is also the counteroffer. MAYOR PRO TEM HOOG: What kind of costs do we incur after tonight, lets put it that way, before you go to trial? What is the cost incurred to the City or our insurance company? MR. GARGANESE: Yeah, there is going to be attorney fees and costs. They will have attorney fees for doing the discovery and preparing the necessary motions. There will be court reporter fees because all of the depositions will have to be FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 an 1 2 3 4 5 6 7 8 9 10 11 12 13 (W 14 15 16 17 18 19 20 21 22 23 24 25 transcribed, and there will be more legal research fees. I mean litigation is not cheap. It's not for the faint of heart either. It's just it is what it is. And, you know, if you want to direct a monetary settlement to this, just give us that advice, and we'll try to negotiate that settlement, with the understanding that the insurance carrier is probably not going to put -- going to probably put ten to twenty in this, maximum, if that, and if they come back with a counteroffer at fifty, you need to be willing to come up with the difference. COMMISSIONER PETSOS: Or litigate? MR. GARGANESE: Or litigate. COMMISSIONER PETSOS: And that's what I was going to ask. If they did come back with a counter, we would have to get the buy -in from the insurance company or they would say, "Hey, we don't agree with that. We want to continue on with the case or you guys come up with the difference"? MR. GARGANESE: Right. The carrier will come back and say, "Yeah, we'll put this in; otherwise we're comfortable with litigating." And they control the litigation under your insurance contract. They -- FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 A 1 [A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER PETSOS: And I have heard both of you mention, and you kind of got concurrence, that the League's attorney agrees that this is a pretty good case on our side -- MR. GARGANESE: Yeah. COMMISSIONER PETSOS: -- to win? MR. GARGANESE: Yeah, at its current posture, yes. COMMISSIONER WALSH: If we win, what do we get? MR. GARGANESE: Success on the lawsuit, basically. Which unfortunately municipalities and local government, counties, they basically defend their position, and if they prevail, you know, you prevail. You don't get attorney fees and costs reimbursed to you. That's the way the system is set up. MAYOR RANDELS: Any more pertinent questions? And I got a couple. MS. BABB-NUTCHER: One more thing. The Federal Court will require us to go to mediation at some point, so even if we don't informally settle the case, I filed a summary judgment, and it will take a while to get a decision. It always does in Federal Court. At some point we will be required FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 49. i r 14 15 16 17 18 19 20 21 22 23 24 25 to go to mediation, so that's still a potential for settlement out there. MAYOR RANDELS: Okay. MAYOR PRO TEM HOOG: Can I ask -- MAYOR RANDELS: Sure. MAYOR PRO TEM HOOG: Let's say that we tell them that the counteroffer is twelve thousand or twenty thousand, whatever the League decides it wants to do with this, and they say no. So our next step is we proceed on until mediation, and Lord only knows when that's going to be, and then we surpass the cost of their demand of $80,000, what happens then? What responsibility of this is the City's? MR. GARGANESE: Nothing, other than to defend the case. MAYOR PRO TEM HOOG: And the League is going to keep carrying on and they will carry this out to the end? MS. BABB-NUTCHER: They have in mind -- the League has in mind what they -- a range that they would be willing to settle, and anything above that, they don't think it's worth it. Now, what -- MAYOR PRO TEM HOOG: That didn't answer my question. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 AQ A 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BABB-NUTCHER: What this Council can do is give us a number, and we can negotiate up to that number. MAYOR PRO TEM HOOG: We have already exceeded their demand of what they want now. MS. BABB-NUTCHER: It's irrelevant what their demand is. MAYOR PRO TEM HOOG: I don't think it's irrelevant. MS. BABB-NUTCHER: Well, it's irrelevant in the lawsuit and irrelevant in terms of any impact on the City if we don't accept their $80,000. It doesn't matter. MAYOR PRO TEM HOOG: We're going on your "ifs." You're standing there saying "if, if." You're going on your "ifs." MS. BABB-NUTCHER: Yes. MR. GARGANESE: Well, we're -- MAYOR PRO TEM HOOG: I realize nothing is guaranteed. MR. GARGANESE: Nothing is guaranteed, and a lot of times in litigation we have to read the crystal ball. We have to give you our professional judgment based on years of experience litigating in Federal Court, "I think this might happen. Or if FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 A A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this happens, that's the nature of the beast." If I knew exactly how this case would play out from start to finish -- MAYOR PRO TEM HOOG: If I remember correctly, Anthony, when we started this, you had a pretty sure thing in your hand, and we lost. MR. GARGANESE: On what? MAYOR PRO TEM HOOG: On this case before it ever went to the judge panel, to the panel of three judges. MR. GARGANESE: I didn't say "sure thing." I mean they appealed the decision of the Board of Adjustment. MAYOR PRO TEM HOOG: You talked like we had -- MR. GARGANESE: It was a compatibility issue there, and the Court didn't see it the way the Board did. And the Court didn't see it the way the Melbourne City Council ruled on that apartment complex the other day. I thought there was an appealable issue even after the Court ruled, which I advised the Council. I wasn't saying there was a strong appealable issue at that stage, but there was an appealable issue on the Court's ruling. MAYOR PRO TEM HOOG: I think anytime we have boards, and I'm putting my neck out on the noose, FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and anytime we got boards, and the boards sit up here and make decisions like this, it's going to come back and bite us, because we have criteria that you have to meet, and the boards walked out of that criteria and said, "This is what we want and this is what we're going to do and this is how it's going to be," and I don't think -- how can you defend that? How can you defend it? MR. GARGANESE: Well, the Board's rationale was -- just to remind everybody, there were two detached single-family homes on either side of this property, and they wanted to put a three- or four -unit townhome in between two single-family homes, you know. And Harbor Heights 1, Harbor Heights 2, that whole issue of what's single-family detached and what's not. You go back to the time when they approved this detached single-family home special exception on the property adjacent to it, it created this other property in the donut hole property -- MAYOR PRO TEM HOOG: You're talking about a totally different district on the other side of the fence. MR. GARGANESE: I know. But you had detached single-family homes on both sides. Could FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 fi3'J 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasonable people disagree whether that was -- MAYOR PRO TEM HOOG: I'm well aware of the whole case from day one to today. But, you know, you can't say, well, because it's over there, that has nothing to do with this over here. And they did. They really screwed up when they put an R1 in there in my opinion personally. It has no bearing on the case to me whatsoever. Because it's commercial, you get special exceptions, of which I got a very popular opinion on those, so here we are. And, you know, the other side of that fence has no bearing on what's over here. And I know I sat and listened -- MR. GARGANESE: This has been a bizarre circumstance for the Board of Adjustment. MAYOR PRO TEM HOOG: Most definitely. MR. GARGANESE: They had to make that decision whether they were going to allow a three -unit townhome project in between two single-family detached homes, or face the possibility where somebody could put a 7 -Eleven on that property under the City's zoning decisions that were made decades ago. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 AF7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR PRO TEM HOOG it up to. That's what they opened MR. GARGANESE: Those were the cards that were dealt. MAYOR PRO TEM HOOG: I would be thinking that three or four homes, ten homes would be more compatible than a 7 -Eleven store there. MR. GARGANESE: It's a compatibility -- MAYOR PRO TEM HOOG: That's where I'm coming from. I look at how it came about, what it is, and I think any simple-minded judge would look at it and think, They screwed up. MS. BABB-NUTCHER: Thankfully we have a federal judge, not a simple -- MAYOR PRO TEM HOOG: I'm saying any simple-minded judge would come up with that opinion. He wouldn't have to be a rocket scientist to figure it out. MAYOR RANDELS: Let me see if I can get a summary here. MR. GARGANESE: History is important, and I understand that. COMMISSIONER ROBERTS: Betty has a question. MAYOR RANDELS: I'm sorry, Betty. COMMISSIONER WALSH: One more question. They FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 A A 6a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 are asking for eighty thousand. I think what I heard is that the League of Cities isn't willing to pay the eighty thousand for settlement. They basically are making a lower number or potentially going through with litigating, following through with litigation. I think that's where we're at. MAYOR RANDELS: I think that's correct. MR. GARGANESE: That's correct, that's the feedback we're getting. COMMISSIONER WALSH: So our decisinn bPrP is do we want to go back with a counter -settlement or do we want to say no and move on to litigation; right? MAYOR RANDELS: I think that's probably the summary that I had in mind. I have got two or three thoughts here. I view it a little differently. I feel very confident that your firm would prevail as it goes on up the line based on what I read and what I see. But I don't see it as a win or lose situation, which is kind of what the Court system is, you won or you lost. And I read them books. I see it more as a right and a wrong situation, because these are people -- we're people, this is a community, and what is right and FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 An 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what is wrong, it becomes a moral issue to me; rather than take it to court and say, okay, who did and who didn't. And I would like to point out two, three things in here, and I'm not very wise in this, but I'm just reading a little bit here: "It's interesting to note," and I'm -- want to tell you where I'm reading from. This is from the Circuit Court of the 18th Judicial Circuit, State of Florida, that comes back to us. And it says: "It's interesting to note that the City's own zoning ordinance defines a townhouse," which is what they wanted to build. Our ordinance says it's a single-family dwelling unit. You don't want to hear this, but it does say that. And it doesn't say anything about whether it's detached or attached. MS. BABB-NUTCHER: Correct. MAYOR RANDELS: Now -- COMMISSIONER WALSH: It's in there. MAYOR RANDELS: -- in my humble opinion that property was C1, no question, it was C1, commercially zoned, and a single-family home was permissible by special exception. MS. BABB-NUTCHER: Yes. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 r_n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR RANDELS: Out of them three lots there, one of them had already been given a special exception to put a single-family home on it right next to this one. MS. BABB-NUTCHER: Three of them had. MAYOR RANDELS: Yep. So here we are. The rest of all that commercial land has been given single-family home special exceptions. MS. BABB-NUTCHER: Yes. MAYOR RANDELS: One remaining lot, our ordinance says, Yes, it is permissible by special exception whether it's detached or attached, single-family, real clear. These people asked for it. MS. BABB-NUTCHER: Well, it doesn't say whether it's detached or attached. It doesn't say whether it's this or that. MAYOR PRO TEM HOOG: Just specifies it as a single-family home. MS. BABB-NUTCHER: Townhouse. Doesn't say "townhomes" or "townhouses". It defines "townhouse" as a single-family dwelling. MAYOR RANDELS: Are you relying on that to be the determining -- MS. BABB-NUTCHER: I think the Court was FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 Kq 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong. MAYOR RANDELS: Okay. Well, I don't know if I want to pay to prove them wrong. MS. BABB-NUTCHER: It doesn't matter. MR. GARGANESE: That doesn't matter. It's water under the bridge. We talked about that during that other attorney/client session where the Court partially quoted some of the code provisions. MAYOR PRO TEM HOOG: Well, what makes it change? What would be making it change? You say, you know, you went -- well -- MAYOR RANDELS: While he's thinking, I'm reading now from the Planning & Zoning Board meeting minutes of May 11, 2005, and I'm reading the last paragraph on page two, and it states: "Lamar Russell discussed rezoning by special exception. Todd Peetes commented that the City has not rezoned, only allowed a different type of use. "Anthony Garganese explained that if the applicant meets the criteria for a special exception, consistent with the comprehensive plan, then he is entitled to the special exception. "He further explained that the City has historically granted residential use in the C1 zoning district, which is considered a policy FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 K9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision." Now, that was at the Planning & Zoning meeting only a short while ago. I guess all this together tells me that I hear us as a group saying, for whatever reason it is, whether to save money, morally, legally, or whatever, there is probably no doubt you can prevail in the end, but I get the feeling that we really don't want to see the end of this movie go that way; and if so, we feel that perhaps a settlement amount would be a consideration, and I hear us saying, yes, we'll take the lessons with the Board; we'll take whatever it takes, make it as attractive as possible, but I don't think we want to spend two years and see the end of this movie, if I read the board right. MR. GARGANESE: That's the reading that I'm getting from Council. Of course you can't vote in the attorney/client session, but I have a question for you. MAYOR RANDELS: Yes, sir. MR. GARGANESE: Because it's going to set the parameters of our counteroffer. MAYOR RANDELS: Certainly does. MR. GARGANESE: We know the League wants to FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 r,Q 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 put some money on the table, and there are limits to what they are willing to put on the table. We send that to the plaintiffs, and the plaintiffs come back with a counteroffer of forty, you know, does this Council want to give me any more money to play with in settlement negotiations or are we just playing with the League's money? MAYOR PRO TEM HOOG: My question is -- MAYOR RANDELS: Go ahead. MAYOR PRO TEM HOOG: My question would be, do we get to confer with you before we do anything else? If this counteroffer from the League goes to them and they refuse it and they come back, do we get another bite of the apple? MR. GARGANESE: Absolutely. COMMISSIONER PETSOS: I would rather wait until we get MR. GARGANESE: You'd rather wait? MAYOR PRO TEM HOOG: Yes, sir, that's how I feel. I'm not comfortable with this at all. MAYOR RANDELS: Okay. I know we can't vote, but I seem to detect a consensus that -- and if somebody doesn't detect the same thing -- that we would like to go ahead and accept the League's offer of what it would be -- FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 r,A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GARGANESE: We'll work solely with the insurance carrier to try to come up with a settlement, final settlement of the case, which of course would come back to you. I can't promise you that with that dollar amount we're going to have to play with with the League that the Plaintiffs are going to accept it. But if they don't accept it and make a counteroffer, we'll come back to you with the counteroffer, and then we can decide what you want to do. MS. BABB-NUTCHER: Do you want to include training? I mean that's not something the League is going to recommend or not. They would look to you if you wanted to do that. MAYOR PRO TEM HOOG: Why would that be a cost factor? We can do that ourselves. COMMISSIONER PETSOS: We have done some of that already -- MS. BABB-NUTCHER: If that's something we want to throw in. COMMISSIONER PETSOS: We just need to reinforce a little bit more on that. MR. GARGANESE: Ironically, we gave special exception training, I think, in 2006. MAYOR PRO TEM HOOG: They don't seem to pay FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 A KIR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attention though. MR. GARGANESE: We do our best, Bob. I mean that's all I can tell you. We try to train -- MAYOR PRO TEM HOOG: Therefore you need to stop them. COMMISSIONER PETSOS: Can you talk to them like you talk to Frank? MAYOR PRO TEM HOOG: That's my point. When the meeting gets out of hand -- MR. GARGANESE: If you're telling me you want to be treated like that, I'll be right on your case every time. MAYOR PRO TEM HOOG: I have sat and watched Kate sit there and totally ignore stuff going on that should have been stopped a half hour before it started. And that's where the problem is. MR. GARGANESE: We'll take that under advisement and -- COMMISSIONER PETSOS: Stop being nice. Start being like an attorney. MR. GARGANESE: We try to work with the boards, and, you know -- MAYOR PRO TEM HOOG: I have to admit the Community Appearance Board I went to, Mr. Bowman asked for a site plan, and she got off her computer FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1 2 3 4 5 6 7 8 9 10 11 12 13 (W 14 15 16 17 18 19 20 21 22 23 24 25 and says, "We're not -- that's not in your realm, stay away from that." And I admired her. I wanted to get up and clap, because that's the first time I have ever seen it happen. MAYOR RANDELS: I think we view your job is to keep us out of trouble and keep our feet out of our mouth, and I can speak from experience here on that. I would like to be told to shut up. With that in mind -- CITY MANAGER BOUCHER: Hold on. On the settlement, I think our insurance paperwork with the League in a rider, that I think the League has the authority when they take on a case to settle without Council's approval under a certain amount, so if it's within this amount we're talking about, they have the right under our policy just to go ahead and do the deal without Council approval. COMMISSIONER PETSOS: That's fine at this point. I think we agreed we would like to see it settled. MAYOR PRO TEM HOOG: If they settle it, that's fine; if not, we still got to deal with it. MR. GARGANESE: My apologies, I'll bring that back to you, given the direction that you have given me, and maybe if they say they are willing to FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 r- 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r ;Ja accept that, that dollar amount, you know, I'll report back to you, of course, but -- and we'll keep you apprised. MAYOR RANDELS: Any further thoughts before we close this attorney/client portion of the meeting? COMMISSIONER PETSOS: No. But the Shuttle should be going over any minute now. MAYOR RANDELS: I would like to close the -- COMMISSIONER ROBERTS: Just two things. If you want to go out and look -- MAYOR RANDELS: I'm going to close the meeting then. MR. GARGANESE: Is this regarding the lawsuit? COMMISSIONER ROBERTS: Yes. Two things real quickly, I just want to go back. What happens if they do negotiate again, and you say everything will be okay, it will go back. They have the right, then, to build the townhouses or whatever -- do they still have to go back to the Board of Adjustment? CITY MANAGER BOUCHER: No. They have all their approvals. COMMISSIONER ROBERTS: So they are all set. They are ready to go? MR. GARGANESE: They are ready to go. FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 1 2 3 4 5 6 7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER ROBERTS: And the only other question was the mediation opportunity at the federal level, if we keep going, you know, they do cite in here upwards of four hundred thousand dollars of what they estimate their loss to be. So that's the only thing that I am concerned about, if you get to the federal level, if they take it that far, you know, there are other -- there may be a much higher mediated amount. COMMISSIONER WALSH: That's to date, so we don't know how that's going to go up. MAYOR RANDELS: Okay. Some of these is what -ifs. I'm going to take the chair's liberty and say the attorney/client portion of the meeting is closed, and the public and the attorney/client session will commence. The meeting is closed at 6:45. (Thereupon, at 6:45 p.m., the testimony was concluded.) FLORIDA REPORTING SPECIALISTS, INC. 1 (800) 881-2127 CERTIFICATE OF REPORTER I, Linda C. Houellemont, being a Registered Professional Reporter, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings, pages 1 through 60, inclusive, and that the transcript is a true and accurate transcription of said proceedings. DATED this 12th day of June, A.D., 2009. LINDA C. 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constantly [1] 16/21 constitutional [5] 16/5 17/17 18/15 22/231/25 contact [1] 19/21 contacted [1] 29/2 contemporaneous [2] 30/1 30/4 continue [5] 10/2 20/3 25/7 39/12 41/19 continued [1] 20/24 contract [1] 41/25 contributing [1] 34/17 control [4] 16/22 34/23 34/24 41/24 controls [1] 34/18 conversation [6] 26/23 27/10 27/16 27/18 27/21 27/22 conversations [4] 18/8 18/10 23/25 27/24 convinced [2] 34/12 35/3 coordinate [1] 23/20 copy [2] 3/18 4/17 correct [4] 25/22 49/7 49/8 50/18 correctly [1] 45/4 cost [5] 5/25 19/15 40/19 43/12 55/15 costs [6] 8/6 19/15 21/8 40/17 40/22 42/15 could [8] 8/12 10/14 16/1 26/2 38/22 40/15 46/25 47/23 council [30] 1/1 1/15 2/9 3/11 3/21 10/1 10/19 17/7 17/8 20/10 20/10 21/22 22/1 25/25 26/4 27/1 32/6 32/15 32/25 35/19 36/24 37/20 37/23 39/20 44/1 45/18 45/21 53/18 54/5 57/17 Council's [1] 57/14 count [8] 30/12 30/16 30/19 30/20 30/21 30/24 30/25 31/1 counter [5] 36/4 39/8 40/15 41/17 49/11 counter -settlement [3] 36/4 39/8 A C counter -settlement... 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21/11 N namely [1] 31/8 natural [1] 25/14 nature [1] 45/1 necessarily [1] 7/1 necessary [1] 40/24 neck [1] 45/25 need [11] 2/25 5/12 10/21 15/9 17/1 20/17 35/8 36/25 41/12 55/21 56/4 needed [1] 25/21 needs [2] 24/7 36/19 negotiate [3] 41/7 44/2 58/16 negotiations [2] 3/1 54/6 never [7] 8/20 10/15 12/6 23/5 28/2 28/638/7 next [6] 2/15 5/13 15/17 25/17 43/1051/4 nice [2] 36/17 56/19 nicely [1] 33/9 Nicholas [1] 37/21 noose [1] 45/25 normal [1] 25/17 normally [1] 25/18 North [4] 34/1 34/2 34/4 34/8 note [2] 50/7 50/11 noted [1] 36/5 nothing [5] 29/18 43/15 44/19 44/21 47/5 noticed [1] 34/22 number [8] 2/20 5/3 5/4 16/2 16/3 44/2 44/3 49/4 Nutcher [4] 1/22 2/13 3/9 28/23 PC observations [1] 24/23 October [3] 22/22 23/8 29/2 October 1 [1] 23/8 off [5] 11/12 26/24 27/8 30/2 56/25 offer [8] 3/12 8/19 9/25 36/11 36/12 36/13 36/16 54/25 offered [1] 26/19 offering [1] 8/12 office [3] 15/18 15/19 38/24 official [3] 13/21 27/18 27/19 officially [1] 3/7 offtrack [1] 11/10 once [1] 24/3 one-year [2] 39/19 39/20 open [3] 2/3 3/4 11/21 opened [1] 48/1 opening [1] 8/11 operate [1] 37/3 opinion [22] 6/4 6/5 6/20 7/13 13/12 18/13 20/5 20/6 22/1 22/3 24/3 28/20 37/1 37/4 37/16 38/10 38/10 38/13 47/8 47/11 48/17 50/21 opinions [1] 39/5 opportunity [3] 3/24 25/1 59/2 option [1] 27/3 options [2] 26/25 27/2 order [2] 2/3 37/24 ordinance [3] 50/12 50/14 51/11 orientation [1] 36/8 CEJ ORL [1] 2/20 Orlando [1] 2/21 otherwise [1] 41/22 our [29] 6/5 7/19 9/23 11/3 14/24 19/8 22/1 22/3 24/3 25/9 25/11 31/2 32/2 33/23 35/7 40/10 40/20 42/4 43/9 44/23 49/10 50/14 51/10 53/23 56/2 57/6 57/6 57/11 57/16 ourselves [1] 55/16 outside [1] 17/23 overturn [1] 6/25 overturned [5] 21/13 22/11 25/16 25/2426/9 overturns [3] 21/5 24/3 28/19 own [1] 50/12 P p.m [2] 1/11 59/19 packages [1] 12/3 page [3] 13/18 29/1 52/15 pages [2] 5/17 60/7 paid [2] 19/14 28/11 panel [2] 45/9 45/9 paper [1] 21/11 paperwork [1] 57/11 paragraph [1] 52/15 parameters [1] 53/23 Park [1] 28/15 part [1] 20/18 partially [1] 52/8 particular [1] 13/16 pass[1] 9/17 past [1] 11/5 Patriots [1] 28/15 pay [9] 7/2 20/25 23/4 23/5 24/16 28/7 49/3 52/3 55/25 paying [1] 29/5 Pearson [2] 4/10 34/24 Peetes [1] 52/17 people [9] 11/16 29/18 35/1 38/4 38/9 47/1 49/24 49/25 51/13 perfect [1] 11/11 perfunctory [1] 24/7 perhaps [3] 4/21 8/11 53/10 period [2] 26/5 33/20 permissible [2] 50/24 51/11 permits [1] 39/18 person [4] 7/20 14/7 14/8 14/8 personal [6] 11/7 13/19 14/5 17/13 23/2531/9 personally [5] 8/25 11/3 13/21 35/9 47/8 persons [2] 2/4 2/7 perspective [1] 18/5 pertinent [1] 42/18 Petsos [2] 1/16 2/10 phase [1] 4/3 phone [1] 30/3 phrase [2] 36/11 36/12 pick [1] 12/18 place [2] 2/5 14/23 Plaintiff's [4] 3/13 3/15 3/19 4/14 plaintiffs [3] 54/3 54/3 55/6 plan [3] 11/14 52/21 56/25 planning [11] 17/12 32/9 32/12 32/14 32/17 32/18 32/19 33/1 33/3 52/13 53/2 plat [1] 39/16 play [3] 45/2 54/6 55/6 playing [1] 54/7 plus [2] 19/14 29/16 point [20] 2/24 3/3 3/8 7/3 8/3 8/15 9/7 10/3 14/13 14/14 16/13 21/1 22/E 25/20 32/5 42/22 42/25 50/4 56/8 57/19 point-blank [1] 16/13 policy [3] 37/23 52/25 57/16 Polk [1] 1/10 popular [1] 47/11 portion [3] 3/4 58/5 59/14 position [1] 42/14 positions [1] 38/2 possibility [2] 10/12 47/22 possible [2] 3/1 53/14 possibly [1] 7/7 postscript [1] 25/2 posture [3] 5/15 10/3 42/7 potential [1] 43/1 potentially [1] 49/4 predisposed [1] 31/22 preparing [1] 40/23 prerogative [1] 12/8 present [3] 2/13 2/14 3/6 presentation [2] 32/7 36/17 presented [1] 17/21 presents [1] 18/6 pretenses [1] 12/2 pretty [5] 5/21 6/18 6/19 42/3 45/5 prevail [7] 10/4 40/11 40/12 42/14 42/15 49/18 53/7 prevailed [1] 17/6 previously [2] 4/18 27/4 prime [1] 38/17 principals [4] 8/5 23/17 24/1 26/14 print [1] 37/13 prior [2] 3/14 19/11 privy [1] 35/12 Pro [3] 1/16 2/9 10/25 problem [2] 15/20 56/16 problematic [1] 19/17 procedural [2] 31/3 32/2 proceed [1] 43/10 proceedings [3] 2/1 60/7 60/9 process [4] 27/25 31/3 31/4 32/3 processes [2] 32/8 33/1 professional [2] 44/23 60/5 progress [1] 4/23 project [2] 14/24 47/21 promise [1] 55/4 proper [2] 2/5 36/18 property [16] 13/3 13/8 18/8 19/13 19/14 19/16 27/7 31/20 32/1 39/12 46/12 46/19 46/20 46/20 47/23 50/2 proposing [1] 3/20 prove [3] 16/16 30/25 52/3 proved [1] 16/18 provided [1] 3/15 providing [1] 3/18 provisions [1] 52/8 public [5] 3/5 11/22 37/2 37/4 59/15 publicly [1] 37/17 purpose [1] 2/17 pursue [2] 20/10 20/11 put [17] 5/15 20/8 26/7 26/16 26/16 36/17 38/24 40/18 41/9 41/10 41/22 46/12 47/7 47/23 51/3 54/1 54/2 quasi [5] 11/8 32/10 32/20 33/2 33/4 quasi -boards [1] 11/8 quasi-judicial [4] 32/10 32/20 33/2 33/4 question [20] 10/19 14/2 14/9 17/1 19/21 20/19 21/3 23/3 24/13 32/24 35/15 39/7 43/25 48/23 48/25 50/22 53/19 54/8 54/10 59/2 luestions [7] 4/6 6/8 6/12 6/14 7/17 8/342/18 luickly [2] 4/4 58/15 3 Rl [4] 13/4 38/15 38/20 47/7 R3 [1] 38/21 raised [1] 36/22 raising [1] 22/2 Randels [3] 1/15 2/8 37/21 range [2] 20/9 43/21 rather [3] 50/2 54/16 54/18 rationale [2] 21/18 46/9 Re [i] 1/5 read [9] 8/12 11/16 12/23 21/11 35/13 44/22 49/19 49/21 53/15 reading [5] 50/6 50/8 52/13 52/14 53/17 ready [8] 5/16 26/7 26/20 39/17 39/18 39/24 58/24 58/25 real [3] 33/9 51/13 58/14 realistic [1] 8/22 realize [2] 23/22 44/19 realm [1] 57/1 reapply [1] 29/5 reapplying [1] 29/3 reason [5] 12/8 14/17 33/3 34/10 53/5 reasonable [2] 24/16 47/1 reasoning [1] 21/18 rebut [2] 6/15 6/16 rebuttal [1] 7/19 recall [2] 33/20 34/9 received [1] 3/12 recently [3] 21/12 30/11 34/21 recommend [1] 55/13 record [3] 3/4 17/23 32/24 recorded [1] 12/16 recording [2] 12/17 16/10 refer (1] 27/25 reference [1] 29/3 reflect [1] 3/5 refuse [1] 54/13 regard [2] 25/5 25/13 regarding [7] 2/18 3/1 3/11 3/17 3/22 36/8 58/13 regardless [1] 36/20 Registered [1] 60/4 reimbursed [1] 42/16 reimbursement [1] 21/8 reinforce [1] 55/22 relates [1] 25/15 relative [1] 25/3 release [1] 36/14 relying [1] 51/23 remaining [1] 51/10 remand [2] 24/6 26/3 remanded [1] 28/15 remember [4] 19/11 30/2 33/15 45/4 remind [2] 32/6 46/10 removed [1] 4/25 render [1] 26/10 repeat [1] 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scheduling [3] 24/1 26/14 26/23 scientist [1] 48/17 screwed [2] 47/7 48/12 seat [1] 38/1 second [6] 20/18 22/12 30/19 30/21 30/2431/1 see [10] 10/22 45/16 45/17 48/19 49/19 49/19 49/23 53/8 53/15 57/19 seem [2] 54/22 55/25 seems [1] 38/6 seen [6] 8/20 14/22 14/23 18/16 18/1857/4 sell [1] 19/16 send [1] 54/3 sense [1] 28/10 sensitive [1] 25/7 sent [4] 4/18 6/7 26/6 27/14 serves [1] 32/9 session [11] 1/2 1/9 2/18 2/22 3/6 3/7 3/14 23/7 52/7 53/19 59/16 set [4] 4/7 42/17 53/22 58/23 settle [12] 5/3 10/1 10/8 10/23 18/23 20/1 20/9 39/25 42/22 43/22 57/1357/21 settled [1] 57/20 settlement [21] 3/1 3/12 3/20 4/16 19/8 36/1 36/4 36/11 36/12 39/8 40/: 41/6 41/7 43/2 49/3 49/11 53/10 54/1 55/3 55/3 57/11 settling [1] 10/20 bnannon [4] 1/1/ 2/1U 24/22 36/3 Sheldon [1] 3/19 short [1] 53/3 shot [1] 31/5 should [18] 6/23 11/22 13/3 13/7 13/8 14/25 16/6 18/8 18/19 31/11 31/20 33/1 36/6 37/14 38/15 38/17 56/1558/7 shouldn't [2] 11/13 18/10 show [3] 15/12 16/10 26/21 shut [1] 57/8 Shuttle [1] 58/6 side [9] 8/18 9/23 10/22 20/4 20/4 42/4 46/11 46/22 47/13 sides [2] 5/25 46/25 similar [3] 18/12 27/21 27/22 simple [3] 48/11 48/14 48/16 simple-minded [2] 48/11 48/16 simply [2] 6/7 7/4 since [6] 3/24 24/17 34/21 35/18 36/2338/6 single [14] 12/24 46/11 46/13 46/15 46/18 46/25 47/21 50/14 50/23 51/3 51/8 51/13 51/19 51/22 single-family [13] 46/1146/13 46/15 46/18 46/25 47/21 50/14 50/2: 51/3 51/8 51/13 51/19 51/22 sit [6] 11/10 11/11 15/18 34/19 46/1 56/14 site [2] 11/14 56/25 sits [1] 17/14 sitting [9] 8/1 14/17 32/21 35/25 37/5 37/18 38/1 38/20 38/21 situation [2] 49/20 49/24 situations [1] 9/18 six [2] 12/21 36/24 small [1] 22/17 solely [1] 55/1 solid [2] 6/18 6/19 somebody [3] 34/24 47/23 54/23 somehow [1] 6/23 something [9] 8/9 8/16 10/4 10/12 14/7 35/18 36/6 55/12 55/19 somewhat [1] 33/17 somewhere [3] 19/7 20/8 24/18 soon [1] 27/14 sorry [3] 28/24 35/6 48/24 sort [1] 17/17 sounds [2] 35/16 39/6 speak [2] 23/24 57/7 speaking [2] 9/16 23/17 special [25] 12/1 12/7 17/3 17/4 18/10 26/1 29/4 31/18 31/23 32/11 32/16 33/10 33/18 33/23 39/22 46/18 47/10 50/24 51/2 51/8 51/11 52/16 52/20 52/22 55/23 specific [2] 7/3 32/14 specifies [1] 51/18 speed [i] 3/21 spend [5] 5/5 9/6 9/11 9/12 53/14 Sr [2] 13/20 26/24 staff [3] 26/22 27/13 27/15 stage [2] 18/1 45/22 stages [1] 4/3 stand [1] 37/24 standing [1] 44/15 start [4] 2/3 10/24 45/3 56/19 started [3] 33/11 45/5 56/16 starting [2] 8/15 33/9 state [2] 24/14 50/9 stated [7] 2/13 11/21 13/21 13/24 15/11 37/14 37/17 statement [7] 8/11 13/5 13/18 14/3 14/4 14/19 16/13 statements [8] 11/20 12/5 13/2 13/3 13/7 14/15 18/12 18/13 states [1] 52/15 stating [1] 6/11 status [1] 3/10 status -wise [1] 3/10 stay [1] 57/2 stenographically [1] 60/6 step [3] 11/23 25/17 43/10 stepping [1] 11/23 steps [1] 25/14 Stevens [2] 3/19 14/2 stop [3] 9/16 56/5 56/19 stopped [1] 56/15 store [1] 48/7 story [1] 22/23 strategy [1] 3/2 strong [2] 9/24 45/22 stuff [4] 14/14 15/21 16/15 56/14 subsequently [1] 30/10 substance [2] 7/18 7/19 substantiate [3] 11/18 16/1 16/4 substantive [1] 31/3 success [3] 5/22 30/25 42/11 such [1] 13/3 suggested [2] 25/4 36/15 summarizing [1] 6/10 summary [14] 3/15 5/16 5/18 5/19 5/22 6/3 7/15 20/12 40/9 40/10 40/13 42/23 48/20 49/15 support [1] 6/8 supposed [1] 37/1 sure [5] 19/25 20/3 43/5 45/6 45/11 surpass [1] 43/12 Susan [3] 12/25 29/2 29/14 table [3] 27/3 54/1 54/2 take [17] 4/13 5/11 5/12 5/13 7/25 8/4 8/9 14/23 40/7 42/24 50/2 53/12 53/12 56/17 57/13 59/7 59/13 taken [3] 4/9 4/10 22/6 takes [1] 53/13 taking [3] 6/5 8/1 25/14 talk [3] 36/7 56/6 56/7 talked [3] 25/6 45/14 52/6 talking [9] 20/3 26/13 28/4 30/3 32/8 32/15 36/2 46/21 57/15 tape [1] 11/17 tell [8] 2/5 3/10 20/17 36/23 38/23 43/6 50/7 56/3 telling [3] 16/8 16/17 56/10 tells [2] 5/2 53/4 Tem [2] 2/9 10/25 ten [7] 1/16 19/6 20/8 36/13 38/8 41/1048/6 term [1] 14/11 terms [5] 4/23 5/22 32/25 36/12 44/11 testifies [1] 16/14 testimony [1] 59/20 thank [1] 2/16 Thankfully [1] 48/13 Therefore [1] 56/4 Thereupon [1] 59/19 thing [11] 7/7 11/15 24/10 24/12 24/16 29/17 42/20 45/6 45/11 54/23 59/6 things [10] 4/4 5/3 17/23 25/10 36/5 36/9 39/5 50/5 58/9 58/14 think [40] 7/20 8/14 8/15 8/25 9/22 10/3 12/14 13/4 19/20 20/17 22/21 24/25 25/1 25/4 25/8 30/7 31/13 33/1 IM 14 think... [22] 33/22 35/8 35/14 39/19 43/23 44/8 44/25 45/24 46/7 48/11 48/12 49/149/6 49/7 49/14 51/25 53/14 55/24 57/5 57/11 57/12 57/19 thinking [2] 48/5 52/12 though [3] 12/15 24/14 56/1 thought [3] 20/2 31/19 45/19 thoughts [4] 10/25 35/11 49/16 58/4 thousand [11] 10/1 19/6 20/9 24/20 36/13 36/16 43/7 43/8 49/1 49/3 59/,e three [12] 17/8 22/21 35/12 38/6 45/9 46/12 47/20 48/6 49/16 50/4 51/1 51/5 three -unit [1] 47/20 throw [2] 19/6 55/20 thrown [1] 27/3 tightening [1] 25/11 time [21] 2/22 5/1 13/4 13/9 18/9 21/1 21/12 23/12 23/14 25/8 25/11 26/5 27/6 33/19 34/6 35/21 37/15 39/2 46/17 56/12 57/3 timeline [2] 22/25 33/6 times [3] 11/5 15/16 44/22 (timing [1] 33/21 tired [1] 38/9 today [3] 10/5 14/14 47/3 Todd [1] 52/17 together [1] 53/3 tonight [2] 37/5 40/18 too [4] 18/1 22/24 25/10 34/13 took [1] 27/8 totally [2] 46/22 56/14 towards [1] 33/25 townhome [2] 46/13 47/21 townhomes [1] 51/21 townhouse [3] 50/13 51/20 51/22 townhouses [2] 51/21 58/18 train [1] 56/3 trained [1] 16/25 training [4] 25/5 36/8 55/12 55/24 transcribed [1] 41/1 transcript [4] 12/24 12/25 16/10 60/8 transcription [1] 60/9 transcripts [5] 7/11 12/19 15/3 15/5 15/12 translate [1] 6/23 treated [1] 56/11 trial [3] 20/13 20/13 40/19 tried [1] 40/13 TRIPLE [4] 1/6 2/18 8/5 23/18 trouble [1] 57/6 true [2] 35/20 60/8 try [11] 6/13 9/19 10/10 18/23 24/1 30/19 30/24 41/7 55/2 56/3 56/21 trying [5] 15/25 16/16 23/20 25/3 25/10 turn [1] 3/8 twelve [1] 43/7 twenty [4] 20/9 24/20 41/10 43/8 two [18] 4/9 5/4 13/18 16/3 17/8 22/9 29/1 29/18 35/12 46/10 46/13 47/21 49/15 50/4 52/15 53/14 58/9 58/14 type [4] 11/15 12/25 27/22 52/18 U unclear [1] 25/13 under [10] 12/2 18/21 21/4 39/24 41/24 47/24 52/6 56/17 57/14 57/16 understand [3] 31/13 38/12 48/22 unaerstanamg LIJ 41A3 underwriting [1] 19/22 unfortunately [1] 42/12 unit [3] 46/13 47/20 50/15 unless [1] 10/4 unreasonable [1] 7/9 until [7] 5/20 23/21 30/18 30/20 33/18 43/10 54/17 upon [2] 18/14 26/12 upwards [1] 59/4 us [20] 7/2 9/10 9/11 13/1 15/3 20/17 25/2 26/19 28/15 31/22 31/25 32/2 41/6 42/21 44/2 46/3 50/10 53/ 53/11 57/6 use [2] 52/18 52/24 V lid [1] 12/1 rbal[1] 27/10 rbatim [1] 12/24 rsus [2] 2/19 23/1 ;w [2] 49/16 57/5 dation [3] 16/5 31/3 31/4 ice [1] 16/10 (wait [6] 11/23 14/25 36/1 40/9 54/1654/18 waited [1] 26/5 walked [1] 46/4 Walsh [2] 1/17 2/9 want [39] 5/3 5/5 5/12 9/19 9/20 10/19 18/22 18/24 19/10 19/11 19/1: 20/11 20/16 21/14 26/4 31/22 32/1 32/5 34/8 39/25 40/12 41/5 41/19 44/5 46/5 49/11 49/12 50/7 50/15 52/3 53/8 53/14 54/5 55/10 55/11 55/19 56/10 58/10 58/15 wanted [15] 4/13 4/15 10/7 20/10 20/14 23/22 26/25 30/7 36/11 36/12 38/23 46/12 50/13 55/14 57/2 wants [4] 31/14 37/4 43/9 53/25 wasn't [6] 19/25 24/13 34/1 34/1 34/1545/21 watched [1] 56/13 water [1] 52/6 way [12] 6/4 10/24 15/23 20/25 25/1 27/6 32/140/18 42/16 45/16 45/1753/9 we'll [16] 3/23 10/2 10/21 18/24 19/10 19/15 36/17 40/9 41/7 41/22 53/11 53/12 55/1 55/8 56/17 58/2 we're [26] 4/3 5/7 10/5 10/13 14/17 15/25 16/8 16/17 25/10 30/21 36/14 37/5 38/6 38/7 40/6 40/8 41/23 44/1, 44/18 46/6 49/6 49/9 49/24 55/5 57/: 57/15 we've [1] 12/24 weeks [1] 4/11 went [4] 23/15 45/9 52/11 56/24 weren't [1] 35/12 what's [5] 5/16 12/8 46/15 46/16 47/14 what -ifs [1] 59/13 whatever [9] 19/10 31/13 38/9 39/12 43/8 53/5 53/6 53/13 58/18 whatsoever [1] 47/9 Whenever [1] 39/17 whether [12] 16/1 17/16 20/1 20/2 21/14 47/1 47/20 50/17 51/12 51/16 51/17 53/5 while [4] 24/6 42/24 52/12 53/3 wnO VPJ 1//14 Its/5 ly/LL LS/S L4/5 29/6 31/11 50/2 50/3 who's [1] 2/5 whoever [1] 38/1 whole [4] 5/1 13/15 46/15 47/3 why [4] 23/16 37/5 38/2 55/15 will [17] 2/3 10/4 20/12 36/13 40/13 40/22 40/24 40/25 41/1 41/21 42/21 42/23 42/25 43/18 58/17 58/17 59/16 willing [7] 20/8 24/19 41/12 43/22 49/2 54/2 57/25 win [5] 7/23 21/10 42/6 42/9 49/20 wise [2] 3/10 50/5 withheld [1] 30/17 within [3] 5/13 13/11 57/15 without [2] 57/14 57/17 won [6] 6/22 9/8 9/8 9/9 24/17 49/21 won't [2] 3/22 30/13 word [1] 27/9 words [1] 25/16 work [2] 55/1 56/21 working [1] 30/21 workshops [1] 33/7 worth [1] 43/23 wouldn't [3] 15/20 28/9 48/17 writ [8] 4/22 6/22 9/7 9/12 17/6 21/9 22/13 22/14 writing [1] 40/1 written [2] 4/5 12/18 wrong [7] 7/6 13/5 13/6 49/23 50/1 52/1 52/3 reah [4] 40/21 41/22 42/5 42/7 rear [4] 22/19 33/12 39/19 39/20 rears [8] 35/13 35/17 36/24 38/6 38/8 38/8 44/24 53/15 rep [1] 51/6 rou'd [1] 54/18 Z zoned [2] 37/14 50/23 zoning [14] 17/12 21/4 21/6 32/9 32/15 32/17 32/20 33/11 33/24 47/24 50/12 52/13 52/25 53/2