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

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 ifhe heard there will be a subsequent meeting to talk about the 136 Development Orders. The City Attorney said she expected tha~ 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 affinnative 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 Council, she does not telling need the Attorney General to advise. She said if a parti,cular 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 into what has been they get exactly going on with the DRC, they need to proceed with a cure plan, and they need to do it efficiently. As for a timeframe 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 timeline 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. The City Manager said it will be done as judiciously and quickly as possible and hopefully at the next meeting on October 28th they will have a plan worked out and commtu1icate 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 200 I. He said Council goes through the painstaking process with everything.  Regular Council 10- 14- 08 29 SUNSHINE LAW cont. The City Attorney said it is not just legal tenninology and actually they do not because in some cases, but she may be jumping the gun because she hated to give an analysis without mowing 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 time that is what was happening, this is not something that has occurred just once or twice. Mr. Reeves asked if the liability for the City come from a citizen 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 W1satisfied 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 nom 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 occUlTed. 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 itTelevant 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 aclmowledged it would, and said the bigger question she has to resolve for herself is legally if they bring it back to Council do they als_ o have tobring 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 are finished ones are affected that way and that will be part of the total plan she gives Council when 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 way the City handles the DRC because there are two schools of thought; either it is a very fonnal committee r' or it is an infonnal teclmical committee line. She said if Council wants it to be a like more they have formal been operating. She said they need to get those in committee, the strongest recommendation she has is it t 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 sbe really thought this is an issue they need to resolve in the Code. She is not saying how they want to resolve it or what is the best w~y, but ~t n~ ds _ to 1Je ~ e~ol" ed s~, th~y ~av~ the in~on~iste~~ies fixed ~ thin the,Gode. Dr. Pullen expressed his appreciation to the City Attorney for her Saturday or S\D1day work and returning early from her vacation to draw her Opinion.  Regular Council 10- 14- 08 30 SUNSIDNE 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 not handled in the Sunshine. approval 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 win 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 beyond that. Mr. H01mes 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 to have a DRC. He said Council can make required that decision right here without going to the MPB because they mow already it is not going to