Fort Walton Beach Council minutes — 10-14-08 regular minutes — reading text

option. Just stating it is a staff meeting without checking and complying with local ordinance and State Statutes doesn' t make it so. The City r Council members have no decision to make as to if the DRC is staff or open to the public. Reading the t ordinances that you have passed should have been done without taking the management and staff's word. The problem looks like a personal agenda to me. There are Development Orders that were closed to the L public during the DRC meetings and things were placed as requirements on the developer that should not have been. An example is Presidio being required to build the boardwalk, the City required to build and maintain according to the Comprehensive Plan. Another is the Sunrise on the Sound being required to give easement and build the boardwalk. The development is now a hotel and density points are not part of the formula. Where did this all come from. This sounds like a DRC meeting to me not held in Sunshine. Let' s take a good look at what has been done and correct the problem. Poor management, personal agenda, and lack of knowledge of an ordinance is not a good reason for what has happened. We need somebody that will use the ordinance as written and not ignore or change them to do as desired. Do what you have to but do it now. And I have one further comment; I' m getting awful tired of being a watchdog. Would you all start reading the ordinances; staff, management, everybody read it and find out what you' re supposed to be doing. Thank you." As there was no one further from the public, public comment was closed. The City Attorney said she sent a Memorandum of Opinion with all the supporting case law, not necessarily the Attorney General' s Opinion ( AGO). She said while AGOs are informative and helps weed through some issues, it is the case law that controls. She said there were comments that all the Development Orders and permits are invalid, and that is not true if they cure violations. She said that is the goal, to figure out how they are going to cure. She said some of the issues raised by Mr. Seip, when they cure the violations by handling the DRC meetings or a Council meeting again, that will be another opportunity for those issues to be presented. She said the case law also says that if it is moot, in other words if a development is already built, they cannot go back and notice; they are not going to be required to do that. She said they will find, as she said in the memo, at least right now there have been 136 development applications that have been reviewed by the DRC; not that they are all invalid but that they have been reviewed since 2001 when they started. She said there will be a group of them that the issue is moot because the development is built, the project is done, the improvement is done, whatever it may have been in the review. She said there will be a group that the DRC had final decision making and the CDS Director had final decision making authority, and those will need a new DRC meeting. She said that will be done in an orderly fashion so that they are quick and she hoped they can do that on a short timeframe, maybe within one week so it is all over and done with fairly quickly. She said the next set of them, one of the issues that makes this kind of tricky and what you saw tonight with the Soundside, if a meeting is held of a lower board authority and that meeting is not noticed, as you go through the process if all of the other meetings are noticed and they are correctly held within the Sunshine, that can be considered a cure; however, at no time would we have said we are curing the DRC because we did not know that until now. She said as she reviews the projects, or permits, or plans, there may be a group of them that they have satisfied enough deliberation on the DRC memoranda because L those memoranda have been incorporated into the Development Order factual basis since around 2006. She said since 2006 they have gotten better at presenting that information, so upon review they may not need to do anything with a handful. She said there will be others that will need to be back in front of Council because it is not the DRC that takes the final action; it is the Council that took the final action on those plans. She said on those issues, they will notice them, they will be back here and they will make sure the DRC memoranda are in front of Council, which she expects they were in the beginning just probably not as formal as they made them since 2006. She said there are going to be different stages of what they have to do to cure it but the goal is that once they get them cured then the City' s liability, or any invalidity of the permits or Development Orders goes to the wayside.  Regular Council 10- 14- 08 28 SUNSHINE LAW cont. Dr. Pullen referenced the court case " Town of Palm Beach vs. Gradison 1974 and said the Court held that the City Council' s actions invalid because part of the drafting of the plan influenced by the input of the citizens committee was conducted outside the Sunshine, so any subsequent action even of the Council in the Sunshine would have been invalid. The City Attorney explained that is a distinction in the case law, that case is an older case, and pointed out she made a statement in her memorandum " Sunshine Law violations can be cured by independent, final action in the sunshine that is not merely a ceremonial acceptance and a perfunctory ratification of secret decisions." She said the Toler case and the Gradison case, one of them regarded an ordinance that basically the Council had no deliberation over; they simply passed what that City' s planning board sent to them, and that was a ceremonial acceptance. She said the court found that did not satisfy the idea if you have an unnoticed meeting, the next meeting if it is noticed and in the Sunshine that it is okay, that it cures that. She said that is why she said they have three different layers of where they all fall. may Dr. Pullen agreed as long as they bring it back to the Sunshine. The City Attorney said it will depend on where they fall; it could be different on every case. The Mayor appreciated the City Attorney taking the time to educate them on the possibility of a cure and expressed they need to move beyond finding fault and finger pointing, and now fix it. He said it has been brought to their attention they have been doing things erroneously, possibly, in the past so they need to move on. He said the City Attorney has provided a cure plan that will cure the problem and asked if he heard there will be a subsequent meeting to talk about the 136 Development Orders. The City Attorney said she expected that Malcolm Foley will have the list done shortly; he has sent her around 30 so far that are in one stage or another but she has not had the time to go through them to see how they are going to handle each one. She said she will work with staff to figure out where they all fall in the three options, then probably the only ones that will come back to Council will be those where they took final action and they did not have something beyond a ceremonial acceptance of the DRC issues. Mr. Hartwell asked if it all could be handled at the City level. The City Attorney replied in the affirmative and said that is where it was created. She said the issue she raised about the Attorney General ( AG), actually after the time she put into the memorandum she is comfortable with what she is telling Council, she does not need the Attorney General to advise. She said if a particular issue comes up that is something that has not been addressed in a case law then she will come back to Council to say she wants to write the AG, a request for an opinion. She said right now she is pretty comfortable until they get into exactly what has been going on with the DRC, they need to proceed with a cure plan, and they need to do it efficiently. As for a time frame she wished it could all be done today, but it will not be; and it is going to take its time with staff getting the meetings scheduled and finding the ability for everyone to get together. The Mayor asked the City Attorney when she will be able to tell Council her plan, if she could come back at the next Council meeting to talk about a time line for resolution, not to actually having it resolved but a timeline for resolution. The City Attorney said she will have to ask Mr. Foley how far along they are because they have to go back through all those records. j The City Manager said it will be done as judiciously and quickly as possible and hopefully at the next wi meeting on October 28th they will have a plan worked out and communicate that well in advance to Council and well in advance of that meeting. Mr. Reeves referenced the " ceremoniously passed" reference and said Council never does that and asked why that would be the precedent and they have to go back to 2001. He said Council goes through the painstaking process with everything.  Regular Council 10- 14- 08 29