Fort Walton Beach Council agenda — 10-28-08 regular agenda — reading text

for potential remediation of the exposure and said in the meantime Council will have time to digest all the material, hopefully there will be a full Council present, the citizens will have a chance to become familiar with the material and contact their elected representatives, and the City Attorney will have time to complete her efforts to determine the extent of the City' s exposure. The Mayor opened the floor for public comment. Ray Seip, 121 Nebraska Avenue, said " in case you are all interested I am kind of the guy that found this by accident when we were doing the changing ftom one Land Development Code to another one, there were particular paragraphs that were left out. The question came up was what is DRC, who are they. Most of this got changed but I do want to read you some that didn' t. The old Land Development Code 12. 34. 07( 7) said all meetings shall be open and accessible to the public'; simple statement."  Regular Council 10- 14- 08 27 SUNSHINE LAW cont. Ray Seip continued " In reading the new Land Development Code 13. 40. 8E reveals that statement was removed. During the development of the Land Development Code Chapter 13 was not finished, you all heard me talk about that. But it was passed by the Municipal Board anyway. Changes were made to Chapter 13 without the Planning Board' s lmowledge. Someone made these changes to make it look like a staff meeting. It wasn' t done accidentally. But the Development Review Committee, DRC, does make the requirements of operating under the Sunshine Law mandatory, not an 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 Council members have no decision to make as to if the DRC is staff or open to the public. Reading the 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 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; rm 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 ~aw, not necessarily the Attorney General's Opinion (AGO). She said while AGOs are infonnative 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 decisi,on making authority, and those will need a new DRC meeting. She said that win be done in an orderly fashion so that they are quick and she hoped they can do that on a short timeftame, 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 nave said we are curing the DRC because we did not know that WItH now. She said as she reviews the r I I l there may be a group of them that they have satisfied those memoranda have been incorporated into the said since 2006 they have gotten better at projects, or permits, or plans, enough deliberation on the DRC memoranda because Development Order factual basis since around 2006. She presenting that information, so upon review they may not need to do anything with a handful. She said there will be others that win need to be back in front of Council because it is not the DRC that takes the fmal action; it is the Council that took the final action on those plans. She said on those issues, they win notice them, they will be back here and will make sure the DRC they memoranda are in front of Council, whichs~~ ~~_~~-.!~ ey'_~~~_~~,~_~~~_ g~~ g j~~! pr9.!? ot_~ fopn~. a~! y ,~ ai1hey nUide--tb.em -sirice-' 1() 06~' s" he siiicfthere 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 pennits 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 Cotu1cil' 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 COtu1cil 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 and a ratification of secret acceptance perfunctory decisions." She said the Toler case and the Gt-adison case, one of them the Council had no deliberation over; they regarded an ordinance that basically , I 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 bave an _ 1' 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 three different layers of where they all fall. ha-ye 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