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

SUNSHINE LAW cont. The City Attorney said it is not just legal terminology and actually they do not because in some cases, but she may be jumping the gun because she hated to give an analysis without knowing for certain, but there may be a time period between around 2001 and 2006 where the DRC memorandum were not used in processing a project. She said there was a time period where the City Clerk was incorporating the language from the memoranda into the minutes of the Council meetings but when you look at those minutes there is not a lot of discussion about the DRC particulars. She said that could be seen as a " ceremonial" acceptance when you have them in the minutes but no one discussed the issues that were presented. She said, of course, at that r m time that is what was happening, this is not something that has occurred Mr. Reeves asked if the liability for the City come from a citizen just once or twice. coming forward with a case against the City that says they were not notified and they were not able to participate in the DRC. The City Attorney replied absolutely and said or from a developer or a property owner who is unsatisfied with the status of a technical requirement. She said those are cases Council sees in her memorandum; there is one that is an adjacent property owner that has filed a suit and it has gone all the way to the Florida Supreme Court; there is another that is actually the property owner that is trYing to stop the City from doing something. The Mayor commented that the fact that even though the DRC did not publish, the fact that the MPB or the CRA reviewed the same things and the public had an opportunity to speak then, and also the one or two meetings Council has had, that does not mitigate the issue that the DRC was not an open issue. He said the fact that the citizens were still part of the process later on they were not at the beginning. The City Attorney said that could mitigate it depending on how they handled the DRC information in the Council meetings or in the MPB or CRA meetings. Dr. Pullen expressed one of his major concerns is the dissatisfied developer or the dissatisfied citizen, which is why he wished it had never come up or never occurred. He referenced the Landmark that has not started construction and asked if that can be fixed rapidly, and there is construction at Uptown Station. The City Attorney said there are many projects, around 15 that are ongoing right now but until she gets into it further, they will need some time. Dr. Pullen acknowledged the City Attorney is proceeding but wondered what it will cost. The Mayor commented the cost is irrelevant right now, they need to fix it. Mr. Hartwell wished to know when they implement the cure plan and the projects are brought back to Council if it would take a simple majority on the vote. The City Attorney acknowledged it would, and said the bigger question she has to resolve for herself is legally if they bring it back to Council do they also have to bring it back to MPB or CRA and that, in her opinion, is a substantial cost to someone because of advertising requirements. She will look at that issue very stringently after they are put together on which ones are affected that way and that will be part of the total plan she gives Council when are finished they compiling all of them. The City Attorney brought up she did put in her memorandum that she thinks the MPB needs to review the r way the City handles the DRC because there are two schools of thought; either it is a very formal committee or it is an informal technical committee like they have been She said operating. need to they those in get line. She said if Council wants it to be a more formal committee, the strongest recommendation she has is it should not be a staff committee because the staff will have a hard time operating under the Sunshine Law because they cannot talk to, each other. She said they really do need to address it and hopefully they can do that before the new Land Development Code is printed. She said that may be pushing it but she really thought this is an issue they need to resolve in the Code. She is not saying how want to resolve it or they what is the best way, but it needs to be resolved so they have the inconsistencies fixed within the Code. Dr. Pullen expressed his appreciation to the City Attorney for her Saturday or Sunday work and returning early from her vacation to draw her Opinion.  Regular Council 10- 14- 08 30 SUNSHINE LAW cont. Mr. Reeves asked if this has been over the years a very litigious item that has come before the Court system where developers are disgruntled over the DRC approval not handled in the Sunshine. The City Attorney said there is a lot of case law that is all over the board. She mentioned the Monroe County case would be an interesting read and said, in her opinion, if someone is unhappy with a project, an approval, a development or requirement, this is an opportunity to file litigation. She said does it mean they will be held responsible if they ignore it, of course, they will have greater liability but what they will read in the case law also is that if the City takes measures to correct it the Courts will say they recognize it, admonish you for what you have done, take care to fix it and address the next issue in the case because these cases always have more than one issue, it is not just a notice issue it is an issue t beyond that. till Mr. Holmes mentioned the City Attorney stated in her memo to have the MPB review it as far as where to go with the DRC and saw in the opinion that the City is not required to have a DRC. He said Council can make that decision right here without going to the MPB because they know already it is not going to work, and here they are going back to the MPB and then what are they going to do with the other processes and developers in the meantime because they cannot meet now or function and do their job because they cannot talk between themselves to get to the recommendations they need. The City Attorney stated the reason she said the MPB is because the MPB has to review the Land Development Code changes and this is a Land Development Code change. She thought staff would want some time to review it and come up with a good working solution. The City Manager said they do want some time but what is paramount is they are frozen in time, they cannot do their jobs; the Planner cannot talk with the CRA Planner, the Stormwater Management cannot talk with the Building Official, so she cannot approve any development and move forward without it being published in the newspaper, post the property and that will not happen in five days. She said the whole idea with the DRC was to help the developer understand what all the requirements are so that is where they are frozen in time right now. Mr. Holmes questioned if there was some cure or mechanism they can do to alleviate that problem now. The City Attorney said she suggested they stop doing DRC meetings but no one liked that suggestion, not necessarily abolish the committee, but she did not think that is a feasible solution. She thought that each of the DRC meetings, based on the new Code, the only thing they can do is advertise the meetings as required and go forward with that. Mr. Holmes commented the intent was to take a layer out and they have probably added several layers into it, and asked if they had the right or authority to take it out. The City Attorney stated they do but they want the recommendation of the MPB and she is not saying that they cannot, just tell her to draft an ordinance striking the entire DRC provisions, but that is contrary to their own Land Development Code that says the MPB would make those recommendations; but Council can do that, they can set a Special meeting. Mr. Holmes asked if the MPB could set a Special meeting to address this posthaste. The City Attorney would suggest if Council directed them to do so they certainly should. 1 Mr. Minich commented the purpose of it was to fast track some of the issues by meeting with developers early on. He said he gets comments from people trying to improve the City that the City tries to go out of its way to help them and he thought that is what the DRC is for. He thought it should go back to the MPB and staff should put it on the fast track to get it on the MPB as fast as possible and get it to Council because it just adds another layer of bureaucracy