03-09-98 vCITY OF ATLANTIC BEACH
COMMISSION MEETING- March 9, 1998
AGENDA
Call to order
Invocation and pledge to the flag
1.Approval of the minutes of the Regular Commission Meeting of February 23, 1998
2.Recognition of Visitors:
A. Introduction of Colonel Rice (Mayor)
B. Presentation of Proclamation declaring the month of April 1998 as Parliamentary
Emphasis Month in Atlantic Beach(Mayor)
3.Unfinished Business:
ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE
ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN
THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE
ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE
CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING
DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY
SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS
4. Consent Agenda:
A. Acknowledge receipt of monthly reports from Building, Code Enforcement and
Recreation Departments, and Capital Improvements Report No. 16 (City Manager)
B. Bid No. 9798-14: Award contract for Annual Janitorial Services for City Facilities to
Duval Janitor Service at an annual cost of$32,364.00 (City Manager)
C. Bid No. 9798-15: Award contract to Campbell's Lawn Service in the amount of
21,578.24 for annual lawn maintenance service at city facilities (City Manager)
D. Bid No. 9798-18: Award contract to Luckin Construction, Inc. In the amount of
19,366.25 for rehabilitation of a home at 65 Edgar Street (City Manager)
E. Acknowledge completion report of Oak Harbor Water and Sewer Improvements
Project (City Manager)
F.Acknowledge receipt of final Change Order (No. 6) for a reduction in costs of
85,152.01 in the Beach Avenue Water and sewer extension project; authorize the
City Clerk to commence the sewer assessments at the previously approved rate of
34.053 per front foot(City Manager)
G. Authorize submittal of the annual CDBG program application including proposed
budget
Page Two AGENDA March 9, 1998
5.Action on Resolutions:
A. Resolution No. 98-8 (Mayor)
A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA,
ALLOWING NON-RESIDENTS OF THE CITY TO SERVE ON THE
CULTURAL ARTS BOARD IF APPROVED BY A MAJORITY OF THE CITY
COMMISSION, AND PROVIDING AN EFFECTIVE DATE
B. Resolution No. 98-9 (Mayor)
Resolution of Esteem- Hope Van Nortwick
C. Resolution No. 98-10 (City Manager)
A Resolution of the City of Atlantic Beach changing the authorized signers for city
accounts
D. Resolution No. 98-11 (City Manager)
A Resolution of the City of Atlantic Beach Recognizing Older Worker Week
6.Action on Ordinances:
A. Ordinance No. 90-98-165
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH AMENDING THE
OFFICIAL ZONING MAP OF THE CITY TO INCLUDE THE AREA
INCORPORATED INTO THE CITY OF ATLANTIC BEACH BY ANNEXATION;
TO ESTABLISH ZONING CATEGORIES AND ZONING DISTRICT
BOUNDARY LINES FOR THAT AREA; TO PROVIDE FOR SEVERABILITY;
AND TO SET AN EFFECTIVE DATE
7.New Business:
A. Discussion and related action in connection with construction of a new lifeguard
station(City Manager)
B. Discussion and possible action in connection with undertaking drainage improvements
between Plaza and 11th Street as Phase 1 of the core city drainage project (Comm.
Beaver)
C. Discussion and possible action in connection with the current design of proposed
improvements to the Mayport Road/Atlantic Boulevard intersection, which proposes
to use city owned property for a retention pond (Mayor)
D. Approve Management Plan and the Grant Award Agreement for Dutton Island and
authorize the Mayor to execute the award agreement on behalf of the City of Atlantic
Beach(Mayor)
E. Board Appointment: (Mayor)
Appointment to fill the unexpired term of Karen Summers on the Cultural Arts
Board (Term expires April 30, 1999)
Page Three AGENDA March 9, 1998
8. City Manager Reports and/or Correspondence:
A. Report and possible action in connection with the traffic light in Town Center at the
intersection of Atlantic Boulevard and Ocean Boulevard (City Manager)
B. Status Report on construction of animal control facility(City Manager)
9.Reports and/or requests from City Commissioners, City Attorney and City Clerk
A. Report relative to Quasi-Judicial proceedings (City Attorney)
Adjournment
If any person decides to appeal any decision made by the City Commission with respect to any matter considered
at any meeting, such person may need a record of the proceedings,and,for such purpose,may need to ensure
that a verbatim record of the proceedings is made,which record shall include the testimony and evidence upon
which the appeal is to be based.
Any person wishing to speak to the City Commission on any matter at this meeting should submit a request to
the City Clerk prior to the meeting. For your convenience, forms for this purpose are available at the entrance
to the Commission Chambers.
In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with
disabilities needing special accommodation to participate in this meeting should contact the City Clerk by 5:00
PM,Friday,March 6, 1998.
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MINUTES OF THE REGULAR MEETING OF THE ATLANTIC s s
BEACH CITY COMMISSION HELD IN CITY HALL,800
SEMINOLE ROAD,AT 7:15 PM ON MONDAY, MARCH 9, 1998
PRESENT: Suzanne Shaughnessy, Mayor
Richard Beaver
Mike Borno
John Meserve
Theo Mitchelson, Commissioners M S
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AND: James Jarboe, City Manager T C
Alan C. Jensen, City Attorney I O Y
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Maureen King, City Clerk COMMISSIONERS N D S 0
The meeting was called to oidei Uy Mayor Shauglumssy. The iiivuLa iuii way
given by Brenda Edge of Roberts Mount Pisgah African Methodist Episcopal
Church followed by the Pledge of Allegiance to the Flag.
1. Approval of the minutes of the Regular Meeting held
February 23, 1998. BEAVER X
BORNO X X
Motion: Approve minutes of the Regular Meeting held
MX
MISON X
February 23, 1998. SHAUGHNESSY X
There being no additions or corrections to the minutes, the motion carried
unanimously.
2.Recognition of Visitors:
A. Introduction of Colonel Rice (Mayor)
Mayor Shaughnessy introduced Colonel (Ret.)Terry L. Rice,the City's
Independent Professional Engineering Consultant for the Core City Stormwater
Improvements Project, and presented high points of his career as Commander,
of the US Army Corps of Engineers, Jacksonville District, which covered the
State of Florida, Puerto Rico and the US Virgin Islands. Mayor Shaughnessy
indicated Colonel Rice held a Doctor of Philosophy Degree in Hydraulics and
Hydrology, and while Chair of the Everglades Project,he was able to bring
citizens and regulatory agencies together.
Mayor Shaughnessy announced the Town Hall Meeting on March 10, 1998 and
stated citizen input on the Core City Project would be received by Colonel Rice
at that time.
J.P. Marchioli of 414 Sherry Drive requested installation of horns on the city
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March 9, 1998
water tower to be used as a warning device for approaching storms.
B. Presentation of Proclamation Declaring the Month of April 1998
as Parliamentary Emphasis Month in Atlantic Beach (Mayor)
Mayor Shaughnessy read the Proclamation in its entirety and asked the members
of the First Coast Parliamentarians to come to the front of the room to be
recognized and receive the framed proclamation.
Sherry Strange accepted the proclamation on behalf of the organization, and
presented a brief history of the use of parliamentary procedure. Ms. Strange
thanked the Mayor and Commissioners for their support of the organization.
3. Unfinished Business:
None.
ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE
CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND
WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED
BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE
ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE
REMOVED FROM THE CONSENT AGENDA AND WILL BE
CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION
AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY
SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS.
4. Consent Agenda:
A. Acknowledge Receipt of Reports from Building, Code
Enforcement and Recreation Departments, and Capital
Improvements Report No. 16 (City Manager)
B. Bid No. 9798-14 - Award Contract for Annual Janitorial
Services for City Facilities to Duval Janitor Service at an
Annual Cost of$32,364.00 (City Manager)
C. Bid No. 9798-15 - Award Contract to Campbell's Lawn Service
in the Amount of$21,578.24 for Annual Lawn Service at City
Facilities (City Manager)
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March lMarch9, 1998
D. Bid No. 9798-18 - Award Contract to Luckin Construction,
Inc., in the Amount of$19,366.25 for Rehabilitation of a Home
at 65 Edgar Street (City Manager)
E. Acknowledge Completion Report of Oak Harbor Water and
Sewer Improvements Project (City Manager)
F. Acknowledge Receipt of Final Change Order (No. 6) for a
Reduction in Costs of$85,152.01 in the Beach Avenue Water
and Sewer Extension Project; Authorize the City Clerk to
Commence the Sewer Assessments at the Previously Approved
Rate of$34.053 Per Front Foot (City Manager)
G. Authorize Submittal of the Annual CDBG Program
Application, Including Proposed Budget
Relative to Item 4-G, Community Development Director George Worley,
passed out revised Proposed 1998/99 CDBG Budget sheets and explained
the figures remained the same and only the format for the budget
presentation had changed.
Mayor Shaughnessy inquired if anyone wished to remove anything from
the consent agenda for discussion , and nothing was removed from the
consent agenda.
BEAVER X
Motion: Award bid contracts as recommended by Staff
BORNO X X
MESERVE X X
and approve Consent Agenda items as presented.MITCHELSON X
SHAUGHNESSY X
There was no discussion and the motion carried unanimously.
5. Action on Resolutions:
A. Resolution No. 98-8 (Mayor)
A RESOLUTION OF THE CITY OF ATLANTIC BEACH,
FLORIDA, ALLOWING NON-RESIDENTS OF THE CITY
TO SERVE ON THE CULTURAL ARTS BOARD IF
APPROVED BY A MAJORITY OF THE CITY
COMMISSION, AND PROVIDING AN EFFECTIVE DATE.
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March 9, 1998
BEAVER X
BORNO X
Motion: Adopt Resolution No. 98-8. MESERVE x x
MITCHELSON X X
Mayor Shaughnessy read the Resolution by title only and explained she
SHAUGHNESSY x
was sponsoring the Resolution to allow talented residents of the
neighboring communities to particpate in cultural arts endeavors. She
indicated she would not recommend the type of change to boards which
had zoning authority.
Commissioner Beaver stated he had a problem with going outside the
community when there were Atlantic Beach residents who were willing to
serve on the Board. Mayor Shaughnessy stated it was difficult to fill
positions on the Cultural Arts Board*and three terms would expire at the
end of April. She then requested that Commissioner Beaver submit the
names of residents who would be willing to serve on the Cultural Arts
Board.
There being no further discussion, the motion carried unanimously.
B. Resolution No. 98-9 (Mayor)
Resolution of Esteem - Hope Van Nortwick
BEAVER X X
BORNO X X
Motion: Adopt Resolution No. 98-9. ME SERVE x
MITCHELSON X
Mayor Shaughnessy read the Resolution in its entirety praising the work of
SHAUGHNESSY X
Ms. Van Nortwick on the Tree Conservation Board. Ms. Van Nortwick
was not present to receive the Resolution.
Commissioner Mitchelson stated he had worked with Ms. Van Nortwick
on the Tree Conservation Board and commended her for her contribution
to preserve the quality of life in Atlantic Beach. Commissioner
Mitchelson requested that the Resolution be presented to Ms. Van
Nortwick at the next Commission Meeting.
There being no further discussion, the motion carried unanimously.
C. Resolution No. 98-10 (City Manager)
A Resolution of the City of Atlantic Beach , Florida, Changing
the Authorized Signers for City Accounts
Amendment 3-23-98
Insert "because First Night demands so many volunteers who
might otherwise serve on the (Cultural Arts) Board,
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March 9, 1998
BEAVER X
BORNO X X
Motion: Adopt Resolution No. 98-10. MESERVE X X
MITCHELSON X
Mayor Shaughnessy read the Resolution by title only. SHAUGHNESSY X
City Manager Jarboe explained that the Resolution listed those authorized
as signers by position, rather than by the individual's name. It was
explained that two signatures are required and the authorized signers are
the City Clerk, City Manager and Finance Director.
After a brief discussion of the change, the motion carried unanimously.
D. Resolution No. 98-11 (City Manager)
A Resolution of the City of Atlantic Beach, Florida Recognizing
Older Worker Week
BEAVER X
BORNO X X
Motion: Adopt Resolution No. 98-11. MESERVE X X
MITCHELSON X
Mayor Shaughnessy read the Resolution in its entirety. Myrtle Collins of
SHAUGHNESSY X
Green Thumb was unable to be present to receive the Resolution and
Mayor Shaughnessy asked City Clerk King to forward the document to
her.
There was no discussion and the motion carried unanimously.
6. Action on Ordinances:
A. Ordinance No. 90-98-165
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH
AMENDING THE OFFICIAL ZONING MAP OF THE CITY
TO INCLUDE THE AREA INCORPORATED INTO THE
CITY OF ATLANTIC BEACH BY ANNEXATION; TO
ESTABLISH ZONING CATEGORIES AND ZONING
DISTRICT BOUNDARY LINES FOR THAT AREA; TO
PROVIDE FOR SEVERABILITY; AND TO SET AN
EFFECTIVE DATE. BEAVER X
BORNO X X
Motion: Pass Ordinance No. 90-98-165 on first reading. MESERVE X X
MITCHELSON X
SHAUGHNESSY X
Mayor Shaughnessy read the ordinance by title only and stated the Final
Reading and Public Hearing would take place during the April 13, 1998
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Commission Meeting.
City Manager Jarboe explained the boundaries of the area annexed and
stated the ordinance would go to the Community Development Board for
review and recommendations. The property is presently under the City of
Jacksonville zoning.
Jackson.ille**
Valerie Britt of 378 Tilefish CourtJrepresentmg the members of the Pablo
Point Civic Association, stated the organization opposed Commercial
General Zoning for Johnston Island.
Community Development Director Worley stated there would be two
Public Hearings, the first on April 13, 1998 on Ordinance 90-98-165 and
the second on April 27, 1998 as part of the DRI process, and citizen input
will be received at those times.
There being no further discussion, the motion carried unanimously.
7. New Business:
A. Discussion and Related Action in Connection with Construction of a
New Lifeguard Station (City Manager)
BEAVER X
Motion: Approve plans as recommended by Staff and have Staff BORNO X X
MESERVE X X
solicit bids for the construction of the building. MITCHELSON X
SHAUGHNESSY X
City Manager Jarboe stated that Public Safety Director Thompson has worked
hard to bring about the construction of the new lifeguard building. Public
review of the proposed building has taken place and the building has been
relocated more to the middle of the right-of-way and the end of Ahern Street and
it has been lowered to one story.
Commissioner Mitchelson expressed concern for the durability of a single
membrane roof, because of the number of claims his agency has handled.**
William Morgan, the architect who designed the building, stated it would be an
EPDM roof(the product is made by Firestone Tire/Rubber Company) with a ten
year warranty which performs well.
Commissioner Borno inquired as to the product's durability in a hurricane, and
Mr. Morgan stated there would be no problems because product would adhere
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to the structure and the building would be constructed in accordance with the
Building Code.
Claire Hart of 62 Ocean Boulevard expressed concern that the proposed
building, if located in the middle of the right-of-way, would obstruct her view
of the ocean and subsequently adversely affect her property value.
Cliff Paine of 51 Beach Avenue agreed a new lifeguard station was needed, but
stated that he lives on a very busy street end and sometimes his driveway has
been blocked by buses or delivery trucks to the Sea Turtle. Mr. Paine distributed
photographs illustrating the congestion in front of his house and indicated that
emergency vehicles, fire trucks and handicapped parking also add to the mix.
Mr. Paine inquired if the lifeguard station could be moved to a centrally located
area in the city.
Public Safety Director Thompson distributed photographs showing the limited
ocean view for the Hart residence. In response to Mr. Paine's inquiry, Director
Thompson stated the city did not own any centrally located land.
Commissioner Meserve stated this project had been going on for a long time
and the city needed to move forward.
Public Safety Director Thompson stated that he had spoken with Neptune Beach
and Hanna Park and they expressed no interest in combining services at this
time.
Mayor Shaughnessy expressed concern regarding large trucks making deliveries
to the Sea Turtle blocking access to the new building. Director Thompson
stated he would work with the Sea Turtle regarding the parking of buses and
delivery trucks.
Commissioner Borno concurred and stated delivery trucks should not be allowed
to block Mr. Paine's driveway and requested that some type of street markings
or signs be installed to prevent this.
City Manager Jarboe stated that once the project has gone out to bid and the bids
received, it will be brought back for final Commission approval.
There being no further discussion, the motion carried unanimously.
B. Discussion and Possible Action in Connection with Undertaking
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Drainage Improvements Between Plaza and 11th Street as Phase I of
the Core City Drainage Project (Commissioner Beaver)
Motion: Discuss and take possible action concerning undertaking
drainage improvements between Plaza and 11th Street as Phase I of
the Core City Drainage Project.
Commissioner Beaver stated he had asked for this item to be put on the agenda
because several citizens had approached him concerning this. He then asked
City Manager Jarboe to address the request.
City Manager Jarboe stated that environmental agencies do not look favorably
upon permitting a separate project within the whole project. He believed it
sounds good, but it would be an exercise in futility to get them to prorate a
permit, it would cost more to do this and no time would be saved.
After a brief discussion, Commissioners Beaver and Borno withdrew their
respective motion and second.
C. Discussion and Possible Action in Connection with the Current
Design of Proposed Improvements to the Mayport Road/Atlantic
Boulevard Intersection,which Proposes to Use City Owned Property
for a Retention Pond (Mayor)
has had preliminary discussions with the it Mang about
Mayor Shaughnessy stated that she-believed-tete tcxreattld-be possib e yuse o ie propertyygyr
for soccer practice fields **
better utilized-as-a-soccer-field and stated she had been approached by several
parents requesting the same. The Mayor further stated she wanted to ask the
JTA to consider moving its proposed retention pond elsewhere.
A brief discussion ensued concerning alternate sites for retention and/or soccer
fields. A site on Regulus Drive, which the city owns, was discounted because it
was not centrally located for Atlantic Beach citizens.
City Manager Jarboe stated he had met with the JTA engineers last week
concerning the project and expressed our concern that the property would be
better utilized as a soccer field and they requested our input. City Manager
Jarboe indicated he had suggested the possibility of selling the Begonia Street
right-of-way for the retention pond, which could then be made a part of Tresca
Park with possible walkways as part of the beautification process. City
Manager Jarboe further reported the JTA said they would consider this and get
back with us. If we want to be proactive, as the Mayor suggested, City Manager
Jarboe stated the Commission needed to make some type of recommendation to
the JTA.
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Mayor Shaughnessy stated her goal was not to commit to soccer fields at this
point, but she wanted to know the will of the Commission regarding the
property- to either retain it or allow the JTA to use it for retention.
Commissioner Beaver believed the city should retain the property, and the City
Manager should work with the JTA to relocate the retention pond while
considering the aesthetics of the project.
Motion: Request the JTA to redesign the Atlantic BEAVER X
Boulevard/Mayport Road Interchange to relocate the retention pond BORNO X X
to allow the City of Atlantic Beach to retain the property bounded MESERVE x
MITCHELSON X X
on the west by Begonia Street, on the east by the Bedding Company, SHAUGHNESSY X
on the north by First Street and the South by Atlantic Boulevard for
park land.
Commissioner Meserve recounted the discussion of the proposed retention
ponds at the previous meeting and stated the Commission needed to direct staff
to work with the JTA concerning the final design and placement of the
retention pond(s) and keep the Commission informed on the progress.
Commissioner Meserve further stated he was not in favor of the present JTA
plan, and he felt the City needed to keep negotiations open ended to come up
with a satisfactory plan. Considerable discussion ensued concerning retention
pond location.
As a point of clarification, City Manager Jarboe stated that staff had met with
the engineers and a number of items were discussed, including beautification.
JTA is negotiating with Carolyn Wood, a landscape architect, for beautification
of the project and it was agreed she will come before the Commission before
any beautification plans are finalized. Staff also expressed concern that the
project really has no value to the citizens of Atlantic Beach. The flyover creates
a pass through for the people who work at the base and live outside of Atlantic
Beach, and at the same time creates a more severe traffic problem for the
citizens of Atlantic Beach City Manager Jarboe assured the Commission that
staff would continue to meet with the JTA and express their concerns.
There being no further discussion, the motion carried unanimously.
D. Approve Management Plan and the Grant Award Agreement for
Dutton Island and Authorize the Mayor to Execute the Award BEAVER X
Agreement on Behalf of the City of Atlantic Beach (Mayor)BORNO X X
MESERVE X X
Motion: Approve revised Management Plan and the Grant Award MITCHELSON X
SHAUGHNESSY X
Agreement and authorize the Mayor to execute the Award
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Agreement on behalf of the City of Atlantic Beach as recommended
in the memo from Community Development Director Worley dated
March 4, 1998. (The memo is attached and made part of this official
record as Attachment A).
Mayor Shaughnessy asked Community Development Director Worley to explain
this item.
Commissioner Beaver inquired as to the size of boats which would be able to
dock on the island and Community Development Director Worley stated the
waterways leading to the island would support medium sized watercraft with the
intent to make the areas around the island a "No Wake" zone at the very least,
and preferably a "No Motorized Craft" zone. It was explained that this may be
negotiable in the future. Commissioner Beaver then inquired concerning the
cost of the utilities mentioned on page 13 of the agreement and asked if that
included bringing them from Levy Road. Community Development Director
Worley stated that if the island was developed for residential, that would be the
case. However, the intent is to place a self contained restroom facility on the
island, as far as water and sewer is concerned. At the present time no water or
sewer lines run to the island and there would be no extension of utilities along
Dutton Drive.
City Manager Jarboe further explained that staff was asking the Commission to
approve this now, so when the deal goes through, the city would be able to get
grant funds from the state to reimburse the city half of the costs.
There being no further discussion, the motion carried unanimously.
E. Board Appointment (Mayor)
Appointment to Fill the Unexpired Term of Karen Summers on the
Cultural Arts Board (Term Expires April 30, 1999)
Mayor Shaughnessy stated she would make the appointment at the next
Commission Meeting to fill the unexpired term of Karen Summers on the
Cultural Arts Board, and asked for Commissioner Beaver's input on a possible
candidate.
8. City Manager Reports and/or Correspondence:
A. Report and Possible Action in Connection with the Traffic Light in
Town Center at the Intersection of Atlantic and Ocean Boulevards
City Manager)
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Mayor Shaughnessy reported one year ago, Mark Mahon of the JEA had
suggested the city could remove the light to make the intersection look better
and to save money, and this had prompted her request to place the item on the
agenda.
City Manager Jarboe referenced Public Safety Director Thompson's memo dated
February 20, 1998, which is attached and made part of this official record as
Attachment B. Public Safety Director Thompson stated he was not in favor of
removing the light because it was needed for pedestrian safety, and stated
consideration could be given to using a pole-type light rather than the type
hanging over the intersection. City Manager Jarboe stated this type of light may
be costly to install, but he would get estimates for the various types of pole
lights.
Mayor Shaughnessy requested that a preliminary proposal for a replacement
light be presented at the next meeting.
B. Status Report on Construction of Animal Control Facility (City
Manager)
City Manager Jarboe deferred to Public Safety Director Thompson who stated
the walls were up, the roof on and the windows should have arrived last Friday
or today and good progress was being made. It was reported the area is fenced
and offers more security than the previous facility, and the Commission would
be notified when they were ready to open for business.
C. Report Concerning Meeting with JTA
City Manager Jarboe reported that the following items/concerns were discussed
with the JTA:
Retention pond location
Utility relocation
Mitigation - for JTA use of Dutton Island
Ingress/egress for existing businesses on Atlantic Boulevard
Begonia Street and the problems there with the end treatment
Corner at Champions - city is encouraging JTA to provide a bus pull-off
on that site
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Traffic problems made worse by the flyover
JTA and FDOT coordination of the project
Beautification - urged them to expand Carolyn Woods' contract
Ingress/egress at Post Office and other traffic issues
Project divides the city and is not necessarily a good project for the
citizens of Atlantic Beach with regard to increased traffic problems
caused by the flyover
D. Discussion with Inland Water Navigation District Chairman
City Manager Jarboe reported that he had spoken to the Chairman of the
Inland Water Navigation District with regard to obtaining funding for
Dutton Island.
E. Response to Alan Potter Letter Regarding the - Buccaneer WWTP
Expansion
The City Manager reported that Andy May, Engineer for the Buccaneer
Project, had responded to Mr. Potter's concerns in a letter, a copy of
which the Commission had received. It was reported that Mr. May
would provide additional information to any Commissioner requesting it.
9. Reports and/or requests from City Commissioners, City Attorney
and City Clerk
A. Report Relative to Quasi-Judicial Proceedings (City Attorney)
Mayor Shaughnessy stated that most zoning issues are decided at quasi-judicial
hearings, and the upcoming DRI hearing concerning Johnston Island will have
those characteristics. She further stated it was her goal in having the City
Attorney brief the Commission on quasi-judicial proceedings, to make the
Commission mistake proof on the procedure.
City Attorney Jensen referenced the handouts concerning quasi-judicial
procedure given each Commissioner prior to the meeting. The Snyder decision
was briefly discussed, including the definition of"competent substantial
evidence" and procedure for a quasi-judicial hearing.
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Mayor Shaughnessy stated that quasi-judicial procedure was very important and
requested that City Attorney Jensen write a summary of what had been
discussed. Commissioner Borno requested a written procedure for conducting a
quasi-judicial hearing. City Attorney Jensen stated he would provide the
requested information.
Ex parte communication was also discussed and Commissioner Meserve
inquired if Commission discussions with staff could be considered ex parte.
City Attorney Jensen stated he would research this question and get back with
the Commission as soon as possible.
Commissioner Beaver
Inquired as to the status of Bull Park and requested an update be placed
on the next Commission agenda.
Requested that no stop signs in the city be taken down without prior
Commission approval.
Commissioner Borno
Asked that consideration be given to using the city property behind the
BP station for a soccer field.
Asked that the JTA re-evaluate the need for all of the retention ponds
shown on the plans, and inquired if the runoff from the flyover could be
piped into an existing sewer line. City Manager Jarboe stated it must be
treated first.
Inquired if the Levy Road project had been completed and asked that an
update of the project be placed on the next agenda for Commission
review.
Commissioner Mitchelson
Commented that new treatment rules apply to the flyover
Reported he had met with Colonel Rice one-on-one and expressed
concern for the tasking contained in his contract. He believed the
contract should be amended to include a review of all the options - the
entire scope of the project.
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Minutcg Pagc 14
COMMISSIONERS N D S 0
March 9, 1998
It was requested that a copy of the Minutes of the March 3, 1998 meeting
and the contract be given each Commissioner.
Commissioner Meserve
With regard to Commissioner Mitchelson's comment, Commissioner
Meserve stated Colonel Rice could not be expected to make a qualitative
assessment of all the suggestions or it would take six months and cost
additional money.
City Manager Jarboe explained the contract and stated Colonel Rice
would not be providing an in-depth engineering study to the city.
Mayor Shaughnessy
Stated that if necessary, a Special Called Meeting could be called to
amend Colonel Rice's contract.
Reported a JTA Public Hearing on the Atlantic Boulevard/Mayport
Road Interchange would be held at Mayport Elementary School on
March 26, 1998 at 6:00 p.m.
Reported the City of Jacksonville Beach would hold an open house for
the new City Hall at 10:00 a.m., March 19, 1998.
Requested that a shade meeting be held in the near future so the
negotiations concerning Dutton Island could be discussed freely.
Announced the Commission Goal Setting Session with Hugh Green on
Saturday, March 14, 1998 from 9:00 a.m. to noon.
There being no further comments or business to come before the Commission,
the meeting adjourned at 9:55 p.m.
u K e
Suzanne Shauglh, ssy
Mayor/Presiding Officer
ATTEST:
G h.e1Lu_
Maur n King, CMC
t
City Clerk
a
ATTACHMENT A
MARCH 9, 1998 COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Approval of revised Dutton Island Management Plan
SUBMITTED BY: George Worley II, Community Development Director
DATE: March 4, 1998
BACKGROUND:
As a condition of the Preservation 2000 grant award for the purchase of Dutton
Island, both the City of Jacksonville and the City of Atlantic Beach must approve a
management plan for the development and continuing operation of the resulting
conservation park. The management plan was prepared and reviewed by City of
Jacksonville and City of Atlantic Beach staff. The plan was conceptually approved by
the City of Atlantic Beach City Commission, but when it was forwarded to the City of
Jacksonville an amendment was made to the plan by the City of Jacksonville City
Council. The amendment removed the City of Jacksonville from the maintenance and
operation of the completed park. The City of Jacksonville has, however, committed to
assist in the development of the park and construction of the amenities noted in the
management plan. Because the management plan was amended, it is necessary for
the City of Atlantic Beach City Commission to approve the amendments.
In a related matter the grant award agreement was forwarded from the Florida
Communities Trust to the City of Jacksonville for the Mayors signature. This award
agreement must be approved by the City of Atlantic Beach as well. The grant award
agreement is the formal acceptance of the limitations imposed by the Florida
Communities Trust on the acquisition and development of Dutton Island. These
limitations are the same as those noted in the application for the grant, in the
Conceptual Approval Agreement approved by the City Commission by Resolution 96-
15 adopted by the City Commission in 1996, and in the management plan itself.
RECOMMENDATION:
Staff recommends approval of both the amended Management Plan and the
Grant Award Agreement with authorization for the Mayor to execute the award
agreement on behalf of the City of Atlantic Beach.
ATTACHMENTS:
1) Amended Management Plan
2) Grant Award Agreement
A%REVIEWED BY CITY MANAGER:
AGENDA ITEM NO.
DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE
MANAGEMENT PLAN
Cities of Jacksonville and Atlantic Beachgl- FCT Project#95-058-P56
Table of Contents
I.Introduction and General Information
II. Purpose of the Project and Management
III. Site Development Improvements and Access
IV. Special Conditions: Jacksonville Port Authority, Florida Department of Environmental
Protection Permit/Cert. Number 16-292767-2 and U.S. Army
Corps of Engineers Permit Number 199403114 (IP-BL)
requirements
V. Key Management Activities
VI. Cost Estimate and Funding
VII. Priority Schedule
VII. Monitoring
VIII. Attachments
A. Concept Site Plan
B. Time Line
C. Map showing relationship of Dutton Island to Kathryn Abbey Hanna Park, Donner
Park and Tresca Intracoastal Waterway Preserve.
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DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE
MANAGEMENT PLAN
IJ
Table of Contents
Mr,
XI. Appendix
A. Jacksonville Port Authority Permits and Correspondence
B. Copy of Grant Award Agreement- (when available)
C. Copy of Recorded Deed - (when available)
D. Copy of Baseline Survey identifying all plant and animal species - (when available)
E. Copy of Interlocal Agreement- (when available)
F. Copy of Florida Department of State, Division of Historical Resources letter of
June 3, 1997
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DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE
MANAGEMENT PLAN
I. Introduction
r
The application is a partnership application between the Florida Communities Trust
FCT) and the Cities of Atlantic Beach and Jacksonville. Since the application was filed
and approved for funding, the Jacksonville Port Authority(JPA) has become a participant1--
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in preserving the Island. JPA's involvement and requirements in funding both the
acquisition and proposed improvements will be discussed further in Section IV, Special
Conditions.
The Dutton Island Intracoastal Waterway Preserve (Dutton)property is located off the
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eastern shore of the Intracoastal Waterway, in Atlantic Beach, Duval County, Florida. It
is approximately 40 acres, and is surrounded by an intricate salt marsh ecosystem. Its
land access is unique, controlled by a causeway, providing excellent security potential.
Deep water access from the Intracoastal Waterway, and to both the St. Johns River and
the Atlantic Ocean, is available to the island at several points.
The project site combines pine flatwoods and live oak coastal hammock uplands, fresh
water wetlands and estuarine marsh habitats. Development is moving towards the project
with the current construction of a 140 home residential subdivision on Dutton Drive,
approximately 4/10 mile away.
The applicants believe Dutton Island's development is threatened, given Jacksonville's
growth, the improved economy, the desirability of the Beaches area in general and
limited waterfront property. Furthermore, Dutton Island was previously fully permitted
and construction started and has vested development rights.
II. Purpose
The purposes for acquiring Dutton Island Intracoastal Waterway Preserve include:
A. Protection of ecologically sensitive land and upland habitat
B. Restoration and enhancement of water quality and marine habitat
C. Passive recreational opportunities
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D. Environmental education
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Due to the close spatial relationship between the Cities of Atlantic Beach, Jacksonville
and Neptune Beach, the demand for recreation and preservation lands transcends
municipal boundaries. The location of the subject easily lends itself to use by residents
from neighboring communities where similar land uses are not available within a
reasonable proximity.
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Dutton Island Intracoastal Waterway Preserve combines and implements policies within
both the Conservation/Coastal Management (CCM) and Recreation and Open Space
ROS) Elements of the City of Jacksonville's 2010 Comprehensive Plan.
Under the Conservation/Coastal Management Element, the City of Jacksonville has
committed to environmentally sensitive land acquisition programs (CCM Policies: 2.8.2,
2.8.3, 3.1.2, 3.3.1, 3.3.2, 3.3.3, 11.1.1; and ROS Policies: 1.1.1, 1.2.1, 1.2.4, 2.1.7,
4.1.2, 4.2.4, 8.2.1).
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Listed animal species and vegetative communities are considered under CCM Policies:
3.5.1, 3.5.4, 3.6.2, 3.7.1, 3.7.4, 3.7.5, 3.8.1, 3.8.3, 3.8.5, 3.8.6, 3.8.8, 10.1.4; and ROS
Policies: 3.1.2, 3.1.3.
Environmental education is covered under CCM Policies: 3.2.1, 3.2.3, 3.2.4; and ROS
Policies: 1.3.1, 1.5.1.
Impact on Wetlands is considered in CCM Policy 4.1.1.; and in Special Management
Areas CCM Policies: 5.1.4 and 5.1.6.
The Management Plan for Dutton is designed to address the following:
a.preservation and enhancement of environmental resources
b.restoration and enhancement of water quality and marine habitat
c.protection of native vegetation and wildlife habitat
d.passive recreation
e.environmental education
Future uses of the site will be limited to passive resource based recreational activities
such as hiking trails,bird and wildlife observation areas,picnicking, primitive camping,
fishing areas, swimming areas, canoe/crew launching(to trails connecting the
neighboring Tresca Intracoastal Waterway Preserve and around the perimeter of Dutton
Island and surrounding marshes), and interpretative/environmental education.
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71 Dutton will be managed only for the conservation, protection and enhancement of natural
L. resources and outdoor recreation which is compatible with these goals.
Once the site is acquired, a land use amendment for designation of the site to
conservation will be submitted. This designation will be submitted to the Atlantic Beach
City Commission, and subsequently forwarded to the Department of Community Affairs
for approval.
Signs, literature, and advertising will identify Dutton as being publicly owned, open to
the public and operated as a natural resource conservation area, outdoor recreation area,
or other appropriate descriptive language, and identify the site as having been purchased
with funds from the Florida Communities Trust(FCT), Cities of Atlantic Beach and
Jacksonville, and the Jacksonville Port Authority.
III. SITE DEVELOPMENT,IMPROVEMENTS AND ACCESS
The participants will request written approval from the FCT before undertaking any site
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Management Plan.
Physical Improvements: Physical improvements will include replacing the culverts
leading to the island, restoration of the 1.2 + acre freshwater pond (which will be further
discussed in Section IV. Special Conditions, regarding JPA'a mitigation permit),public
composting, restroom facilities approximating 500 square feet, nature trails
approximating 1.25 miles,boardwalks approximating 900 linear feet,primitive camping
and picnic areas, limited pervious vehicle parking area and environmental and project
signage.
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Ir.Existing improvements include an unimproved roadway system which will be utilized for
the trail system wherever practicable, and a dock on the south west portion of the island,
which is in need of repair.
Although a final design has not been completed, the extent and approximate placement of
most physical improvements is shown on the conceptual Master Site Plan(Attachment
A). After permitting, boardwalk areas will be constructed as part of the educational trail
system that meanders through low and wetland areas. It will be built to site conditions to
avoid listed plant and animal species during construction; and, is approximately located111
on the conceptual Master Site Plan. The pervious parking area will encompass less than
15,000 square feet, and the primitive camping areas will encompass less than 20,000
square feet. Minimal underbrushing will be required for the camping area, no large trees
l will be removed for either the parking or camping area, and special care will be taken to
avoid listed plant or animal species during construction of the parking and camping area.
Other improvements include the removal of exotic vegetation, controlled burning and
replanting of roads with native vegetative species.
5
Results of the surveys for vegetative and wildlife habitat/species will be used for the final
placement of improvements on the site. All necessary permits will be obtained from
the appropriate agencies and evidence of same will be forwarded to the FCT.
A minimum of one sign identifying the project site as being open to the public,purchased
with funds from FCT, the Cities of Atlantic Beach and Jacksonville and the Jacksonville
Port Authority, will be placed at the entrance to the preserve.
All required permits will be applied for from the appropriate entities including the Cities
of Atlantic Beach and Jacksonville, St. Johns River Water Management District, Florida
Department of Environmental Protection, U.S. Army Corps of Engineers,plus the JPA
permit conditions(See Section IV - Special Conditions).
Access: Access to the site is by Dutton Drive, a causeway to the island. Limited
pervious automobile parking will be provided as well as bicycle parking. Waterway
access to the site will be at points located on the northern and southern tips of the island.
See conceptual Master Site Plan Attachment A.) Access will be compatible with State
and Federal construction standards, including the Americans with Disabilities Act.
Easements: The only anticipated easement across the site is to bring electrical service to
the island. It is to be granted to the Jacksonville Electric Authority, the regional electrical
utility. Notice and copies of proposed easements shall be forwarded to the Florida
Communities Trust for review at least sixty (60) days prior to adoption of such
easements.
IV. SPECIAL CONDITIONS
Jacksonville Port Authority, Florida Department of Environmental Protection,
Permit/Cert. Number 16-292767-2 and U.S. Army Corps of Engineers Permit Number
199403114(IP-BL) requirements: As a model of Public-Public Partnerships, the
Jacksonville Port Authority, as part of its port expansion mitigation plan, has agreed to
contribute$100,000 towards both the acquisition ($60,000) and improvements ($40,000)
to the Preserve.
The following paragraphs, from the U.S. Army Corps of Engineers permit letter, (see
Jacksonville Port Authority correspondence in Appendix) are relevant to Dutton and are a
requirement of JPA's permit:
The permittee agrees to participate in a land acquisition program that would result
in the purchase of Dutton Island within one year of the date of this permit. If
Dutton Island is not purchased within one year from the date of this permit, the
permittee shall acquire 2.5 permitted freshwater commercial mitigation credits or
propose an equivalent mitigation plan to be approved by the Corps.
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As part of the Dutton Island mitigation, the permittee shall ensure that a
mitigation/management plan will be submitted to the Florida Community Trust
for review and approval within six(6) months following the acquisition of Dutton
Island for the restoration of the approximately 1.2 acre freshwater pond. The
freshwater system shall consist of a forested and/or scrub/shrub wetland with
herbaceous wetlands and shallow open water. The mitigation/management plan
shall include provisions for a city sponsored five year monitoring scheme and a
contingency plan.
The permittee shall ensure that the Dutton Island Management Plan, required by
the Florida Community Trust,provides for the restoration of the 1.2 acre
freshwater pond to be completed within a year from the approval of the
mitigation/monitoring plan.
The following paragraphs, from the Florida Department of Environmental permit letter,
see Jacksonville Port Authority correspondence in Appendix) are relevant to Dutton and
are a requirement of JPA's permit:
The permittee agrees to participate and provide a minimum $60,000 to the land
acquisition program that would result in the purchase of Dutton Island, Duval
County within one (1) year of the issue date of this permit and provide a minimum
of$40,000 for the restoration of the freshwater borrow pit/lake. In the event
Dutton Island is not purchased within this one(1) year period, the permittee shall,
at the end of the one(1)year period, purchase 2.5 acres of freshwater wetland
from a permitted mitigation bank with a service area in Duval County or submit
an equivalent mitigation plan to be approved by the Department. The above time
frames may be extended solely at the discretion of the Department.
The permittee shall submit written reports on a quarterly basis to the Department
which provide the status of the Dutton Island acquisition. The reports shall be
submitted until either Dutton Island is acquired, or the one (1) year period
referenced in the above condition has been reached.
The permittee shall submit proof that a minimum of$60,000 has been provided
for the acquisition of Dutton Island. Proof shall be in the form of written
verification from the Cities of Jacksonville and Atlantic Beach that the permittee
has provided the funds for the acquisition of the island, and the date those funds
were provided. The permittee shall submit the written verification within fourteen
14) days of receipt from the two cities.
If Dutton Island is acquired, the permittee shall submit a signed and sealed survey
of the island to the Department.
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11111The permittee shall ensure that the Dutton Island Management Plan, required by
the Florida Communities Trust(FCT), includes the restoration of the 1.2 acre
approximate) freshwater borrow pit/lake. The freshwater system restoration shall
consist of a forested and/or scrub/shrub wetland along a littoral shelf and an open
water portion. A copy of the draft Dutton Island Management Plan shall be
submitted to the Department within seven(7) days following submittal to FCT.
The additional $40,000 shall be used solely for the freshwater system restoration
activities. The permittee shall submit written proof(i.e. in the form of invoices,
etc.) demonstrating that the funds were used for the restoration activity.
The Dutton Island Managementgment Plan shall provide for completion of the
restoration of the 1.2 acre freshwater borrow pit/lake within one(1) year from the
date of approval of the management plan and issuance of all environmental
permits required for the restoration activity. In the event the restoration is not
Ir completed within this time period, the permittee shall submit an alternative
mitigation plan. The Department, solely at its discretion, may extend the one (1)
year time deadline.
In
V. KEY MANAGEMENT ACTIVITIES:
Maintenance: Primary maintenance activity will include trash removal and site cleanup
on a daily basis by the City of Atlantic Beach. Due to the trail and boardwalk system,
trash removal will be conducted by maintenance staff using hand carts or similar wheeled
containers. The proposed restroom facility will also require daily attention to maintain it
in a clean and healthy condition. Parks staff will clean the structure daily. More
intensive maintenance and repair of the facilities and boardwalk structures will be
necessary on a semi-annual or annual basis depending upon the findings of regular
inspections. Low maintenance, durable natural materials are preferred for the
construction of the boardwalk, canoe launch docks, and restroom structure. Peripheral
items such as benches,picnic tables and information kiosks may be more appropriately
constructed of recycled plastic materials. It is believed that the life expectancy of this
material exceeds natural materials in wet environments such as found on the subject, near
the marshes and intracoastal waterway.
To improve the physical condition of the site and provide interactive learning experience
of local residents, and especially local youth, day tours are envisioned on the site which
will include limited trash removal work to reinforce the importance of respecting and
protecting the environment. These activities will be restricted to the less sensitive
environment of the upland portion of the site. A number of local volunteers trained in
forestry, recreation, and parks management are available to assist the full time
departmental staff in the implementation of these activities.
Security: With only one land access to the site, security of the project site will be
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provided by a gate on Dutton Drive, regular day patrols by the Atlantic Beach Parks
Department, and regular night patrols by the Atlantic Beach Police Department. The
preserve will be closed after dark except for pre-arranged events and primitive camping.
During the day it is not anticipated that an on-site manager will be necessary. The local
telephone service provider will be approached to install at least one pay telephone at the
proposed restroom facility.
Staffing: Based upon the conservation and passive recreation character of the preserve, it
is anticipated that coordinated management between the Jacksonville and Atlantic Beach
Parks departments will be permitted within existing staffing. Volunteers, such as Friends
of Dutton Island Preserve will also augment staffing.
LLNatural Resource Protection: Protection of the islands natural resources will be
accomplished by first conducting a baseline survey of the site to identify all plant and
rr animal species, and locating sensitive habitat areas. Said baseline survey will be initiated
within 90 days of acquisition; and, when completed will be added to the management
plan. [See WV. Appendix(d)] Once identified, all listed species and habitats will be
avoided during the installation of the trails and boardwalks. Said trails and boardwalks
will be constructed with railings or fences, if necessary, to restrict the public to the trail
system. In addition to the restricted trail design, the island is buffered from neighboring
uplands by the nearly undisturbed and pristine Intracoastal Waterway marshes and
waters. The coastal oak hammock,pine flatwood and saltmarsh communities will be
preserved and appropriately managed to ensure their long term viability.
A number of protected bird and animal species may inhabit the project site. Potential
habitat areas are to be identified by site inspection prior to the final design of the trail
system. The trail system design will avoid wetlands, thus reducing impacts on wading
bird habitats. The most evident wading bird species observed on the project site include
snowy egret, great blue heron, cattle egret, wood ibis, green heron, and wood stork.
These species generally nest in the lower canopy of trees which grow along the edges of
the marsh. The installation of the proposed amenities will be coordinated with the
vegetative and wildlife surveys so as to minimize adverse impacts on nesting habitats.
The marsh areas where these bird species feed will remain intact. No adverse impact is
expected to be caused by the project. The final design plans, along with this Management
Plan, will be submitted to the FCT and the Florida Game and Fresh Water Fish
Commission (FGFWFC) for review and comment prior to bidding the project. Revisions
suggested by the FGFWFC will be integrated into the design to the extent feasible.
Follow-up contact with the FGFWFC will be maintained to ensure up-to-date regulations
and design guidance specifications are available throughout the project development.
The recipients shall be responsible for coordinating with the Department of
Environmental Protection's Office of Protected Species Management for appropriate
guidance, recommendations, and necessary permits to avoid impacts to the manatee.
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110 Docking areas will be limited to one each on the northern and southern parts of the island;
and, slow.speed, manatee awareness education signs will be posted from the Intracoastal
Waterway and on the dock. In addition, the channel, restricted area and sea grass areas
will be clearly identified with signage.
10.The project site will be monitored by the City of Jacksonville on an annual basis to
determine if any adverse impacts have occurred to the listed species or the sensitive
habitat areas identified during the initial survey. The causes of any degradation will be
identified and corrective actions such as closing of trails and restoration work will be
undertaken immediately upon any fording of adverse impact. Limiting direct access to
the general public to designated trails and boardwalks will contribute to the preservation
of the existing habitats and species. Such limited access also contributes to the
restoration of impacted sites by allowing the areas to be isolated as necessary.
Hydrology and stormwater quality at the project site will be monitored by the City of
Atlantic Beach on an annual basis as part of the city's existing stormwater management
program. With minimal impervious surface area there will be minor stormwater
improvements, and all amenities will make use of natural materials wherever possible.
A survey of the vegetative communities on the site was commissioned by the City of
Jacksonville as a step in the grant application and design process. All survey information
on listed plant and animal species as well as sensitive habitat locations on the site will be
L forwarded to the Florida Natural Areas Inventory.
Resource Restoration and Enhancement: Based upon findings of the baseline survey of
listed plant and animal species on the project site, limited habitat restoration may be
undertaken. Because the site is undeveloped and isolated, it is not expected that large
areas in need of restoration will be identified. The envisioned trail system will include a
self-guided interpretive tour through the project site identifying the varied habitat areas.
It is the intent of the environmental interpretive tour to direct the interest generated by
this information towards the enhancement of the site. As identified under the
maintenance section above, the participation of youth groups in maintenance activities is
seen as an educational tool, in introducing them to the natural environment. As an
environmental enhancement tool, the removal of trash and debris from the site by
volunteers will also aid in the enhancement of the site. The activities of such groups can
be combined with restoration or enhancement projects to provide area youth with a well
supervised, hands-on, learning activity. Additional restorative work will include the 1.2
acre freshwater lake restoration to be accomplished under the JPA's U.S. Army Corps of
Engineers permit guidelines. Revegetation of trail roads and other disturbed areas within
the project site will be accomplished during the initial stages of the park development.
The scattered areas total approximately three acres and consist of unauthorized dump
sites containing mostly household appliances and trash. The removal of this material will
be completed during the site preparation work,prior to any construction of amenities.
10
Revegetation of the areas will follow immediately after the removal of the debris. The
disturbed areas will be replanted with native plant species. This process will provide a
fcontinuity of the surrounding vegetative communities into the disturbed areas.
Some infestation by exotic vegetation on the project site is probably due to a past
residential homesite. The removal of exotic vegetation will be accomplished concurrent
with the site preparation work, and prior to construction of the amenities. Monitoring of
exotic vegetation encroachment will be a part of the ongoing maintenance of the site.
A Burn Plan for the pine flatwood portions of the site will be developed and initiated in
coordination with the Division of Forestry and the Game and Fresh Water Fish
Commission
The wetlands restoration plan for the site shall be coordinated with the St. Johns River
Water Management District, the Florida Department of Environmental Protection and the
U.S. Army Corps of Engineers for the protection of surface water, ground water quality
and hydrology.
The combined restoration area of the site will approximate 18 acres including: JPA
wetland mitigation, burn plan, removal of exotics,revegetation of trial roadways, culvert
replacement, and removal of trash and debris.
Educational Programs: The Cities of Atlantic Beach and Jacksonville Parks and
Recreation Departments will sponsor environmental educational programs in cooperation
with local elementary and junior high schools. Implementation will commence after
initial improvements have been complemented, approximately 15 months after
acquisition. The frequency will commence initially at a minimum of one per quarter, and
build as the school system and community organizations become aware of the preserve
and its educational programs; as there are 25 public and private schools within 15 miles
of the site. The programs will also target at-risk youth and may be co-sponsored by local
1 service organizations such as the Donner Community Development Corporation, the
Boys and Girls Clubs, YMCA, Boy& Girl Scouts, and numerous church organizations.
The Juvenile Crime Mitigation programs, targeted at risk youth will commence within
approximately six months of acquisition as part of the island's clean up program and will
be continued as part of the on going maintenance of the preserve. The initial Juvenile
Crime Mitigation program will be held during the summer months and be expanded to a
minimum of quarterly programs. Atlantic Beaches' innovative "Peddle Pickers" program,
whereby youths performing 40 hours of community service are allowed to pick a bicycle
from the police department's inventory of abandoned and found bikes will be utilized. It
is also anticipated that local Rotary Clubs through their sponsorship of Boy Scout
programs, especially Mohawk Boy Scout troops, will assist in the preserve's clean-up and
maintenance. Part of the preliminary design for the trail system includes educational
kiosks where specific environmental issues or conditions are highlighted. These kiosks
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will focus on both geographic localities as well as environmental issues. The project site
contains several very good examples of the vegetative communities normally found in
and adjacent to marshes, including oak hammock, pine flatwoods, and the marsh itself.
These focal points will highlight vegetative and wildlife communities, and possible
adverse effects impacts caused by human development. Learning to identify adverse
impacts will assist the public in making informed decisions about the protection and
conservation of sensitive environments along the Intracoastal Waterway.
Archaeological and Historical Resource Protection: No archaeological or historic sites
have been identified on the project site. The Division of Historical Resources of the
Florida Department of State, has recommended [see Appendix (XI)(F)J that prior to any
land clearing or ground disturbing activities, those area to be impacted be subjected to a
cultural resources assessment survey to determine if any significant archaeological sites
are present. This will be done and all provisions of Chapter 267, Florida Statutes,
including Sections 267.061(2)(a) and 267.061(2)(b), will be met in identifying and
protecting historical and archaeological sites discovered, if any.
Coordination: The Parks and Recreation Departments of the Cities of Atlantic Beach and
Jacksonville will coordinate the management of the preserve, through the nearby Kathryn
Abbey Hanna Park and Tresca Preserve. It is hoped that bike paths will connect Dutton
with Kathryn Abbey Hanna and Donner Parks, and Tresca Preserve; and, canoe trails will
connect Dutton and Tresca Preserves. See map, VIII. Attachments (C), showing the
relationship of these parks.
Because Dutton is an island, marshes separate it from adjoining upland land owners. The
n City of Atlantic Beach hopes to coordinate with upland landowners a scenic easement on
Dutton Road, to preserve the pristine approach of mature oaks on both sides of the road
leading to the preserve.
The unique aspects of the JPA's mitigation permit conditions requires additional
coordination with other agencies on required permits including Florida Department of
lir Environmental Protection, St. Johns River Water Management District, U.S. Army Corps
of Engineers and the U.S. Fish and Wildlife Service.
VI. Cost Estimates and Funding Sources:
The estimated costs of the improvements to the project site are based on similar work
conducted in other city projects. The estimated costs are as follows:
me
1.2 acre freshwater lake restoration 40,000
Culvert replacement 20,000
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Trail and boardwalk system 25,000
Primitive camping and picnic area 10,000
Restroom facility 17,000
Site preparation, utilities, permitting and environmental 123,000
interpretive signage
Total estimated cost 235,000
Strong efforts will be made to acquire grant funding from various agencies to offset the
financial impact, including the Florida Inland Navigation District. Due to the
commitment to a low maintenance, conservation/passive recreation preserve, the City of
Atlantic Beach will be able to provide the expected level of maintenance with minimal
staff in the Parks and Recreation department. Volunteers will present educational
programs. Schools participation in environmental programs at the project site will also
be encouraged through educational grants. The cities maintain close relations with
several youth oriented organizations such as the Boy Scouts and the Y.M.C.A., who will
be recruited to participate in these education programs, especially those targeting at-risk
youth.
VI. Priority Schedule:
To meet JPA permit requirements, immediate priorities will be the culvert replacement
and the freshwater lake restoration. To be followed is the removal of exotics and trash,
construction of restrooms, nature trails, observation areas, interpretive signage and
limited parking. See Time Line, Attachment B.
VII. Monitoring and Reporting:
Project monitoring will be accomplished through an initial site survey to identify listed
plant and animal species, sensitive habitat areas, encroaching exotic vegetation, and point
source contaminants such as trash dump sites. A follow-up survey shall be conducted
periodically to assess areas, species and items inventoried during the initial survey.
Results of the monitoring will be reported in the Annual Stewardship report. The
effectiveness of the implementation of the Management Plan will be also evaluated
during this monitoring. This evaluation will examine the completion of physical
amenities, the conduct of site maintenance, and the provision of educational programs
and opportunities to the public. Management Plan objectives, as identified herein, will
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evaluated as to the level of progress toward attainment. Any proposed modifications to
the project site will be presented to the FCT for review and approval prior to
implementation.
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Attachment A
CONCEPTUAL SITE PLAN
Dutton Island
Intracostal Waterway Preserve
PCT Project 1195-058-P56
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Graphic Scale 1'-100'
May 1997
Attachment B
DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE TIME LINE
Purchase Date 3 mos 6 mos 9 mos 12 mos 15 mos 18 mos 21 mos 24+ mos
10/15/97 1/15/98 4/15/98 7/15/98 10/15/98 1/15/99 4/15/99 7/15/99 10/15/99
aseline vegetation &
wildlife survey
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ulvert replacement
ivenile crime mitigation program I continuous
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lonitoring I continuous
iterpretive signage I continuous
ature trails
bservation areas
icnic & primitive camping areas
eplant trail roads
Dutton Island Intracoastal Waterway Preserve Timeline, continued
Purchase Date 3 mos 6 mos 9 mos 12 mos 15 mos 18 mos 21 mos 24+ mos
10/15/97 1/15/98 4/15/98 7/15/98 10/15/98 1/15/99 4/15/99 7/15/99 10/15/99
noe/crew launch 1
strooms 1.I
nited parking I I
ucational programs I continuous
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03/04198 10:50 12904 630 2391 MAYOR'S OFFICE 0 002
X4.!•)'•1'
pr
OFFICE OF THE MAYOR' .• . .
JOHN A.DEi:-A-11EY9t.JAMES BUILDING
MAYQt1
117 WEST DUVAL STREET•
JAGIWONVI LE lL 22u2
abruarJ 24, 199
The Honorable Suzanne Shaughnessy
Atlantic Beach City Hall
800 Seminole Road
Atlantic Beach, FL 32233
Re: ,-Dutton Island Intracoastal Waterway Preserve
Dear Mayor Shaughnessy:
I am writing to confirm that the City of Jacksonville, as Atlantic Beach's Applicant Partner
in the Dutton Island Intracoastal Waterway Preserve, FCT Project#95-058-P56, is committed to •
as icing in the purchase and improvement of the preserve.
I am delights: in the potential to save this precious island frnm development, and am
commuted to assisting Atlantic Beach through the corning years in mutually improving the
preserve.
Sincerely,.
John A. Delaney
Mayor
JAD/sa
Printd en Recycled Payor
This document prepared by:
Ann J. Wild
Florida Communities Trust
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 323.99
FLORIDA COMMUNITIES TRUST
P56 AWARD# 95-058-P56
FCT Contract#
GRANT AWARD AGREEMENT
THIS AGREEMENT is entered into this _ day of 1997 ,
by and between the FLORIDA COMMUNITIES - TRUST ("FCT") , a
nonregulatory agency within the State of Florida Department of
Community Affairs, and CITY OF ATLANTIC BEACH and CITY OF
JACKSONVILLE (FCT Recipient) , a local government of the State of
Florida ("FCT Recipient" ) , in order to impose terms, conditions,
and restrictions on the use of the proceeds of certain bonds,
hereinafter described, and the lands acquired with such proceeds
and as described in Exhibit "A" attached hereto and made a part
hereof ("Project Site") , as shall be necessary to ensure compliance
with applicable Florida Law and federal income tax law and to
otherwise implement provisions of Chapters 253 , 259 , and 380,
Florida Statutes.
WHEREAS, Part III Chapter 380, Florida Statutes, the Florida
Communities Trust Act, creates a nonregulatory agency within the
Department of Community Affairs, which will assist local
governments in bringing into compliance and implementing the
conservation, recreation and open space, and coastal elements of
their comprehensive plans and in otherwise conserving natural
resources and resolving land use conflicts by providing financial
assistance to local governments to carry out projects and
activities authorized by the Florida Communities Trust Act;
WHEREAS, Section 1 of the Florida Preservation 2000 Act
provides for the distribution of ten percent (10%) of the net
Preservation 2000 Revenue Bond proceeds to the Department of
Community Affairs to provide land acquisition grants and loans to
local governments through the FCT;
WHEREAS, the Governor and Cabinet authorized the sale and
issuance of State of Florida Department of Natural Resources
Preservation 2000 Revenue Bonds ("Bonds") ;
GAA\95-058-P56
08-28-1997
WHEREAS, the Bonds were issued as tax-exempt bonds, meaning
that the interest on the Bonds is excluded from the gross income of
Bondholders for federal income tax purposes;
WHEREAS, Rule 9K-4 . 010 (2) (f) , F.A.C. , authorizes FCT to impose
conditions for funding on those FCT applicants whose projects have
been selected for funding in accordance with Rule Chapter 9K-4 ,
F.A.C. ;
WHEREAS, the FCT has approved the terms under which the
Project Site is acquired and the deed whereby the FCT Recipient
acquires title to the Project Site shall contain such covenants and
restrictions as are sufficient to ensure that the use of the
Project Site at all times complies with Section 375. 051, Florida
Statutes and Section 9, Article XII of the State Constitution and
shall contain clauses providing for the conveyance of title to the
Project Site to the Board of Trustees of the Internal Improvement
Trust Fund upon the failure of the FCT Recipient to use the Project
Site acquired thereby for such purposes; and
WHEREAS, such covenants and restrictions shall be imposed by
an agreement which shall describe with particularity the real
property which is subject to the agreement and shall be recorded in
the county in which the real property is located; and
WHEREAS, the purpose of this Agreement is to set forth the
covenants and restrictions that are imposed on the Project Site
subsequent to its acquisition with the FCT Preservation 2000 Bond
award.
NOW THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, FCT and FCT Recipient do hereby contract and agree as
follows:
I. GENERAL CONDITIONS.
1. Upon execution and delivery by the parties hereto, the
FCT Recipient shall cause this Agreement to be recorded and filed
in the official public records of Duval County, Florida, as Exhibit
B" of the warranty deed vesting fee simple title to the Project
Site in the FCT Recipient, and in such manner and in such other
places as FCT may reasonably request, and shall pay all fees and
charges incurred in connection therewith.
2 . The FCT Recipient and FCT agree that the State of Florida
Department of Environmental Protection will forward this Agreement
to Department of Environmental Protection Bond Counsel for review.
In the event Bond Counsel opines that an amendment is required to
this Agreement so that the tax exempt status of the Preservation
GAA\95-058-P56
08-28-1997 2
2000 Bonds is not jeopardized, FCT and FCT Recipient shall amend
the Agreement accordingly.
3 . This Agreement may be amended at any time. Any amendment
must be set forth in a written instrument and agreed to by both the
FCT Recipient and FCT.
4 . This Agreement and the covenants and restrictions
contained herein shall run with the Property herein described and
shall bind, and the benefits shall inure to, respectively, the FCT
and the FCT Recipient and their respective successors and assigns.
5. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, with respect to
both substantive rights and with respect - to procedures and
remedies.
6. Any notice required to be given hereunder shall be given
by personal delivery, by registered mail or by registered expedited
service at the addresses specified below or at such other addresses
as may be specified in writing by the parties hereto, and any such
notice shall be deemed received on the date of delivery if by
personal delivery or expedited delivery service, or upon actual
receipt if sent by registered mail.
FCT: Florida Communities Trust
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
ATTN: Executive Director
FCT Recipient:
ATTN:
7 . If any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired.
II. PROJECT SITE REQUIREMENTS IMPOSED BY CHAPTER 259, CHAPTER
375, AND CHAPTER 380, PART III, FLORIDA STATUTES.
1. If any essential term or condition of this grant
agreement is violated by the FCT Recipient or by some third party
with the knowledge of the FCT Recipient and the FCT Recipient does
not correct the violation within 30 days of notice of the
violation, fee simple title to all interest in the Project Site
GAA\95-058-P56
08-28-1997 3
shall be conveyed to the Board of Trustees of the Internal
Improvement Trust Fund. The FCT shall treat such property in
accordance with Section 380. 508 (4) (e) , Florida Statutes.
2 . Any transfer of the .Project Site shall be subject to the
approval of FCT and FCT shall enter into a new agreement with the
transferee, containing such covenants, clauses, or other
restrictions as are sufficient to protect the interest of the
people of Florida.
3 . The interest, if any, acquired by the FCT Recipient in
the Project Site will not serve as security for any debt of the FCT
Recipient unless FCT approves the transaction.
4 . If the existence of the FCT Recipient terminates for any
reason, title to all interest in real property it has acquired with
the FCT award shall be conveyed to the Board of Trustees of the
Internal Improvement Trust Fund, unless FCT negotiates an agreement
with another local government or nonprofit organization which
agrees to accept title to all interest in and to manage the Project
Site.
5. In the event that the Project Site is damaged or
destroyed or title to the Project Site, or any part thereof, is
taken by any governmental body through the exercise or the threat
of the exercise of the power of eminent domain, the FCT Recipient
shall deposit with the FCT any insurance proceeds or any
condemnation award, and shall promptly commence to rebuild,
replace, repair or restore the Project Site in such manner as is
consistent with the Agreement. The FCT shall make any such
insurance proceeds or condemnation award moneys available to
provide funds for such restoration work. In the event that the FCT
Recipient fails to commence or to complete the rebuilding, repair,
replacement or restoration of the Project Site after notice from
the FCT, the FCT shall have the right, in addition to any other
remedies at law or in equity, to repair, restore, rebuild or
replace the Project Site so as to prevent the occurrence of a
default hereunder.
Notwithstanding any of the foregoing, FCT will have the right
to seek specific performance of any of the covenants and
restrictions of this Agreement concerning the construction and
operation of the Project Site.
III. PROJECT SITE OBLIGATIONS IMPOSED BY FCT ON THE FCT RECIPIENT.
1. The Project Site shall be managed only for the
conservation, protection and enhancement of natural and historical
resources and for passive, natural resource-based public outdoor
recreation which is compatible with the conservation, protection
and enhancement of the Project Site, along with other related uses
4
GAA\95-058-P56
08-28-1997 4
necessary for the accomplishment of this purpose. The proposed
uses for the Project Site are specifically designated in the
Project Plan as approved by FCT.
2 . The FCT Recipient shall prepare and submit to FCT an
annual report as required by Rule 9K-4 . 013 , F.A.C.
3 . The FCT Recipient shall ensure that the future land use
designation assigned to the Project Site is for a category
dedicated to open space, conservation, or outdoor recreation uses
as appropriate. If an amendment to the FCT Recipient' s
comprehensive plan is required to comply with this paragraph, the
amendment shall be proposed at the next comprehensive plan
amendment cycle available to the FCT Recipient.
4 . FCT Recipient shall ensure, and provide evidence thereof
to FCT, that all activities under this Agreement comply with all
applicable local, state, regional and federal laws and regulations,
including zoning ordinances and the adopted and approved
comprehensive plan for the jurisdiction as applicable. Evidence
shall be provided to FCT that all required licenses and permits
have been obtained prior to the commencement of any construction.
5. The FCT Recipient shall, through its agents and
employees, prevent the unauthorized use of the Project Site or any
use thereof not in conformity with the FCT approved project plan.
6. FCT staff or its duly authorized representatives shall
have the right at any time to inspect the Project Site and the
operations of the FCT Recipient at the Project Site.
7 . All buildings, structures, improvements, and signs shall
require the prior written approval of FCT as to purpose. Further,
tree removal, other than non-native species, and/or major land
alterations shall require the written approval of FCT. The
approvals required from FCT shall not be unreasonably with- held by
FCT upon sufficient demonstration that the proposed structures,
buildings, improvements, signs, vegetation removal or land
alterations will not adversely impact the natural resources of the
Project Site.The approval by FCT of the FCT Recipient' s
management plan addressing the items mentioned herein shall be
considered written approval from FCT.
8 . If archaeological and historic sites are located on the
Project Site, the FCT Recipient shall comply with Chapter 267 ,
Florida Statutes. The collection of artifacts from the Project
Site or the disturbance of archaeological and historic sites on the
Project Site will be prohibited unless prior written authorization
has been obtained from the Department _ of State, Division of
Historical Resources.
GAA\95-058-P56
08-28-1997 5
9 . The FCT Recipient shall ensure that the Project Site is
identified as being publicly owned and operated as a passive,
natural resource-based public outdoor recreational site in all
signs, literature and advertising regarding/the Project Site. The
FCT Recipient shall erect a sign(s) identifying the Project Site as
being open to the public and as having been purchased with funds
from FCT and FCT Recipient.
IV. OBLIGATIONS INCURRED BY FCT RECIPIENT AS A RESULT OF BOND
PROCEEDS BEING UTILIZED TO PURCHASE THE PROJECT SITE.
1. If the Project Site is to remain subject, after its
acquisition by the State and the FCT Recipient, to any of the below
listed activities or interests, the FCT Recipient shall provide at
least 60 days written notice of any such activity or interest to
FCT prior to the activity taking place, and shall provide to FCT
such information with respect thereto as FCT reasonably requests in
order to evaluate the legal and tax con- sequences of such activity
or interest:
a. any lease of any interest in the Project Site to a
non-governmental person or organization;
b. the operation of any concession on the Project Site
to a non-governmental person or organization;
c. any sales contract or option to buy things attached
to the Project Site to be severed from the Project Site, with a
non-governmental person or organization;
d. any use of the Project Site by non-governmental
persons other than in such person' s capacity as a member of the
general public;
e. a management contract of the Project Site with a
non-governmental person or organization; and
f. such other activity or interest as may be specified
from time to time in writing by FCT to the FCT Recipient.
2 . FCT Recipient agrees and acknowledges that the following
transaction, events, and circumstances may not be permitted on the
Project Site as they may have negative legal and tax consequences
under Florida law and federal income tax law:
a. a sale of the Project Site or a lease of the Project
Site to a non-governmental person or organization;
b. the operation of a concession on the Project Site by
a non-governmental person or organization;
GAA\95-058-P56
08-28-1997 6
c. a sale of things attached to the Project Site to be
severed from the Project Site to a non-governmental person or
organization;
d. any change in the character or use of the Project
Site from that use expected at the date of the issuance of any
series of bonds from which the disbursement is to be made;
e. any use of the Project Site by non-governmental
persons other than in such person' s capacity as a member of the
general public;
f. a management contract of the Project Site with a
non-governmental person or organization; and
g. such other activity or interest as may be specified
from time to time in writing by FCT to the FCT Recipient.
DELEGATIONS AND CONTRACTUAL ARRANGEMENTS BETWEEN THE FCT RECIPIENT
AND. OTHER GOVERNMENTAL BODIES, NOT FOR PROFIT ENTITIES, OR NON
GOVERNMENTAL PERSONS FOR USE OR MANAGEMENT OF THE PROJECT SITE WILL
IN NO WAY RELIEVE THE FCT RECIPIENT OF THE RESPONSIBILITY TO ENSURE
THAT THE CONDITIONS IMPOSED HEREIN ON THE PROJECT SITE AS A RESULT
OF UTILIZING BOND PROCEEDS TO ACQUIRE THE PROJECT SITE ARE FULLY
COMPLIED WITH BY THE CONTRACTING PARTY.
V. CONDITIONS THAT ARE PARTICULAR TO THE PROJECT SITE AS A RESULT
OF THE FCT APPROVED MANAGEMENT PLAN.
1. The FCT Recipient shall provide outdoor recreational
facilities including nature trails, interpretive signage,
observation areas, restrooms and limited parking on the Project
Site. The facilities shall be developed in a manner that allows
the general public reasonable access for observation and
appreciation of the significant natural resources on the Project
Site without causing harm to those resources.
2 . The timing and extent of a vegetative communities and
plant species survey of the Project Site shall be specified in the
management plan. The FCT Recipient shall detail how the survey
shall be used during development of the site to insure the
protection, restoration, and preservation of the natural resources
on the Project Site.
3 . The coastal hammock, pine flatwoods and saltmarsh
communities that exist on the Project Site shall be preserved and
appropriately managed to ensure the long-term viability of these
vegetative communities.
4 . The Project Site shall be managed in a manner that
optimizes habitat for listed wildlife species that, utilize or could
GAA\95-058-P56
08-28-1997 7
potentially utilize the Project Site, including the manatee,
bobcat, muskrat, river otter and listed wading birds. The FCT
Recipient shall coordinate with the Game and Freshwater Fish
Commission and Department of Environmental Protection's Office of
Protected Species Management on the management of the Project on
the management of the Project Site for the protection of listed
species and listed species habitat. The FCT Recipient shall also
conduct periodic surveys of listed species using the Project Site
and develop informational signs relating to the protection of
listed animal species and their habitat.
5. The FCT Recipient shall ensure that the Project Site and
listed animal species and their habitat are sufficiently buffered
from the adverse impacts of adjacent land uses.
6. The FCT Recipient shall restore 18 acres of the Project
Site by removing exotic vegetation, replanting trail roads with
native vegetative species, restoring the aquatic habitat of the
freshwater lake and adding culverts to the dike road to restore the
hydrology of the saltmarsh.
7 . The FCT Recipient shall coordinate with the St. Johns
River Water Management District in the development of a hydrologic
restoration plan for the Project Site.
8 . A vegetation analysis of the Project Site shall be
performed to determine which areas of the Project Site need a
prescribed burning regime implemented to maintain natural fire-
dependent vegetative communities. The FCT Recipient shall
coordinate with Division of Forestry and Game and Fresh Water Fish
Commission on the development of a prescribed burn plan for the
Project Site.
9 . The FCT Recipient shall remove all trash and debris from
the Project Site.
10. Prior to the commencement of any proposed development
activities, measures will be taken to determine the presence of any
archaeological sites. All planned activities involving known
archaeological sites or potential site areas shall be closely
coordinated with the Department of State, Division of Historic
Resources, in order to prevent the disturbance of significant
sites.
11. Access to the Project Site by pedestrians, bicyclists and
persons on non-motorized vehicles shall be promoted except in those
areas where resource protection considerations warrant limiting
access.
GAA\95-058-P56
08-28-1997 8
12 . The FCT Recipient shall provide educational programs at
the Project Site. The programs shall include guided walks and
special programs for school groups and the general public.
13 . As described in it' s application, the FCT Recipient shall
provide an organized recreational program directed toward the
participation of at-risk-youth. The program shall be offered on a
continuing basis at the Project Site focusing on the mitigation of
juvenile crime through the provision of recreational opportunities.
14 . The requirements imposed by other grant program funds
that may be sought by the FCT Recipient for activities associated
with the Project Site shall not conflict with the terms and
conditions of the FCT award.
THIS GRANT AWARD AGREEMENT embodies the entire Agreement
between the parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement.
Witness: CITY OF ATLANTIC BEACH
BY:
Witness Name: Its:
Date:
Witness Name:
Attest:
Clerk
Accepted as to Legal Form and
Sufficiency:
Date:
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this
day of 1997 , by as
He\She is personally known to me.
Notary Public
Print Name:
Commission No.
My Commission Expires:
GAA\95-058-P56
08-28-1997 9
Witness: CITY OF JACKSONVILLE
L =(. L . 4 BY:
011111";
Witness Name: Its:
2/Z Date: YJ oZf
Witness Name:
C As authorized by Ord. 96- Attest: ".
1095-662 and Resolutions Cierk Corporation Secretary
96-482-254 & 97-966-A, the
latter of which amended • Accepted as • Leg- or `nd
pg . 13 of the Management Sufficienc - •
Plan . A copy of the amend- GREG*
ed page is attached hereto . ASSIST'Nt GFNER.AL COUN EL
Date: /o/23 c7
STATE OF FLORIDA
COUNTY OF DUVAL
The forre,ving instrument was acknowleflged before me this m''
day of 1997 , by as
He\Sher is personally known to me.
JK,
iii-i`"•-"`L_f{,,.%-J
Notary Public
Print Name: /4.1%/,k_
Commission No.
My Commission Expires:
0:'Py',; Linda Schneider
R MY COMM!SSION M CC585341 EXPIRES
June 23,2000
74;e0 tootoio m u mar FAIN INSURANCE,INC.
GAA\95-058-P56
08-28-1997 10
FLORIDA COMMUNITIES TRUST
Witness Name: James F. Murley, Chair
Date:
Witness Name:
Accepted as to Legal Form and
Sufficiency:
Ann J. Wild, Trust Counsel
Date:
STATE OF FLORIDA
COUNTY OF LEON
The foregoing instrument was acknowledged before me this
day of 1997 by JAMES F. MURLEY, as Chair of the
Florida Communities Trust. He is personally known to me.
Notary Public
Print Name:
Commission No.
My Commission Expires:
GAA\95-058-P56
08-28-1997 11
Exhibit "A"
attach legal description]
GAA\95-058-P56
08-28-1997 12
ATTACHMENT B-
MARCH 9, 1998 COMMISSION MEETING
CITY OF
1 '`1 •
rileleie•tree Feae - 9eouGi.a.
IF
800 SEMINOLE ROAD
ATLANTIC BEACH,FLORIDA 32233-5445
TELEPHONE(904)247-5800
FAX(904)247-5805
SUNCOM 852-5800
February 24, 1998
Memorandum to:
The Honorable Mayor
City of Atlantic Beach
Subject:
Evaluation on Traffic Light at Ocean Blvd. And Atlantic Blvd.
City Commission Members:
At the City Commission meeting of February 9, 1998 a citizen inquired concerning
the necessity of having a traffic light at the corner of Ocean Boulevard and East
Coast Drive. I asked David Thompson, Director of Public Safety, to evaluate the
necessity of having a traffic light at this intersection and his report and recommendation
is attached herewith for your review.
If I can provide you with additional information or if you have any questions please call
me.
Respectfully submitted,
J s R. Jarboe
City Manager
JRJ:tl
Attachment
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Evaluation on Traffic Light at Ocean Blvd. and Atlantic Blvd.
SUBMITTED BY: David E. Thompson, Director of Public Safety
DATE: February 20, 1998
BACKGROUND:
The Police Department has been asked to re-evaluate the necessity of having a traffic light at the
intersection of Ocean Blvd. and Atlantic Blvd. To this end, the Police Department reviewed
some past history on the issue in addition to soliciting input from Neptune Beach officials.
Several years ago, this issue was raised largely due to some construction and renovation work in
the area. At that time, there was some question as to the necessity of having a light at the
intersection. It was suggested that we review the intersection to determine whether or not it
would be feasible to eliminate the traffic light and install stop signs.
At that time, the review was conducted including a discussion with Neptune Beach officials. The
public input at that time was largely against the elimination of the light, and the Police
Departments agreed that the traffic light was preferable to stop signs. Although the total traffic
traveling through that intersection was relatively light, it was heavily traveled on a seasonal
basis. The traffic light was considered to be a better traffic control than stop signs.
Since that time, the intersection has changed considerably. When the Town Center plans were
first introduced to the Police Department relative to parking and traffic flow, the Police
Department requested the approval of a traffic engineer before any work was initiated. The plans
called for narrowing roadways, adding pedestrian crossings, changing parking, and eliminating
traffic lanes. The Police Department recommended the review and approval by appropriate traffic
engineers. To the knowledge of the Police Department, this review was never performed.
The intersection is now narrower and more limited than it was in years passed. It has four (4)
pedestrian crossings at the intersection, and the vehicular and foot traffic is very heavy, influenced
by the time of year and time of day. To assure the safety of the pedestrians crossing near the
intersection, it appears that the traffic light is particularly necessary at this time. With stop signs,
pedestrians will be dodging vehicles coming from all four(4) roadways, some of which will be
going straight ahead, turning left, or turning right. Although the pedestrians have the right-of-
way, their safety may be compromised without a light to assist them in crossing. Accidents at this
intersection are fairly rare with the existing traffic light.
After a discussion with Chief Bill Brandt of the Neptune Beach Police Department, he made it
After a discussion with Chief Bill Brandt of the Neptune Beach Police Department, he made it
clear that their Police Department opposes the elimination of the light. He recalled that the last
time this issue was discussed, he received a great deal of citizen opposition to the elimination of
the light.
The Atlantic Beach Police Department does not have a traffic engineer on staff. If there is a great
interest in pursuing the elimination of the light, then the City may want to consider obtaining the
services of a traffic engineer who will have additional expertise and credentials. However, the
Police Department may point out that the worst intersections in the city relative to traffic crashes,
were designed by traffic engineers.
If the primary concern relative to the light is the fact that it is not very attractive, then the City
should consider that there are other options as to traffic lights. Instead of one light suspended by
wires, they could consider post mounted traffic lights and pedestrian crossing signs on each
corner. This would be more aesthetic, and it would still provide the recommended traffic control.
RECOMMENDATIONS: The Police Department recommends that the intersection remain
under the control of a traffic light.
ATTACHMENTS: NONE
REVIEWED BY THE CITY MANAGER:
AGENDA ITEM:
ATTACHMENT C
ALAN C. JENSE1SMARCH 9, 1998 COMMISSION MEETING
Attorney at Law
935 North Third Street
Post Office Box 50457
Jacksonville Beach, Florida 32240-0457
Telephone (904) 246-2500 Facsimile (904) 246-9960
March 5, 1998
Mayor Suzanne Shaughnessy Commissioner John S. Meserve
168 Oceanwalk Drive South 2126 Beach Avenue
Atlantic Beach, FL 32233 Atlantic Beach, FL 32233
Commissioner Mike Borno Commissioner Theo Mitchelson
223 Ocean Forest Drive North 340 Ocean Walk Drive North
Atlantic Beach, FL 32233 Atlantic Beach, FL 32233
Commissioner Richard Beaver
P. O. Box 331044
Atlantic Beach, FL 32233
RE: Quasi-Judicial Hearings
Dear Mayor and Commissioners:
The Mayor has requested that I provide you with information regarding quasi-judicial hearings,
including handouts. I enclose two articles, the first one by Herbert Thiele, County Attorney for
Leon County, which gives an excellent overview of the quasi-judicial process and raises some
interesting questions. The second article is by Tom Pelham and contains many different cases
applying the Snyder decision to various proceedings.
In a nutshell, the Florida Supreme Court in the Snyder decision changed the way a city must
review and process land development applications from the old rule of "fairly debatable" to the
proper standard of "competent substantial evidence." Thus, a city or any of its boards must
make decisions based on proper evidence and not upon who can gather the most people at a
meeting and make the most noise.
It may be advisable for the City to adopt a procedure for conducting quasi-judicial hearings.
There are some excellent recommendations for this in the article by Mr. Thiele. I will be happy
to draft a proposal if you so desire. I will also be more than happy to answer any questions you
might have in this regard.
Very truly yours,
ALA 4 1 N
Enclosures
ACJ/sky
cc: James R. Jarboe, City Manager (w/enc)
George Worley, II, City Planner (w/enc)
r
PRACTICE AND PROCEDURES BEFORE LOCAL GOVERNMENT
LEGISLATIVE AND QUASI-JUDICIAL_BODIES
Herbert W. A. Thiele, Esq.
County Attorney
Leon County, Florida
1.Introduction
A. The Florida Supreme Court, with its 1993 decision in Board of County Commissioners
of Brevard County v. Snyder, 627 So. 2d 469(Fla. 1993), changed the method local governments used to
review and process land development applications, especially for rezonings and site and development
plan approvals. While the Supreme Court quashed the Fifth District's ruling, in so much as it held that
the clear convincing evidence standard was too restrictive,the Court held that the proper standard should
be"corn.etent substanti. • 'dence "thus abandoning the old standby rule of"fairly debatable."
Therefore Snyder has become the new"landmark"decision for all cases involving review of re-zoning
requests(and site plans). The Supreme Court felt that the old rule that these decisions were legislative in
nacre was inconsis ent with the requirements set out in Florida's Growth Management Act as enacted in
1985. Now the process for considering re-zoning applications and land development applications will
usually involve quasi-judicial considerations and standards.
II. Historical Path to The Adoption of Quasi-judicial Method
A. Historically, the general rule on the enactment of zoning ordinances or ordinances
rezoning land had been that such actions were viewed as a legislative act. See, e.g.Board of County
Commissioners of Leon County v. Monticello Drug Co. and O'Connor Development Corp., 630 So. 2d
578 (Fla. 1994); Muchado v. Musgrove, 519 So. 2d 629(Fla. 3d DCA 1988);Rinker Materials
Corporation v.1vletropolitan Dade County, 528 So. 2d 904(Fla. 3d DCA 1987); Florida Land Company
v. City of Winter Springs, 427 So. 2d 170(Fla. 1983); Gulf and Eastern Development Company v. City
of Ft. Lauderdale, 354 So. 2d 57 (Fla. 1978);County of Pasco v. J.Dico.Inc„343 So.2d 83 (Fla.2d
DCA 1977); Harris v. Goff, 151 So. 2d 642 (Fla. 1st DCA 1963).
However, this method was not destined to last, and its demise did not come without some
forewarning. There were several cases just prior to the Supreme Court's decision in Snyder which were
indicative as to how Florida's courts' views in these matters were changing. The different districts
began to have differing positions as to how these re-zoning applications were to be treated.
For example, the Fifth District sustained its early position that it stated in Snyder as it opined in
ABG Real Estate Development Company of Florida. Inc. v, St. Johns County. Florida, 608 So. 2d 59
Fla. 5th DCA 1992) that the zoning authority must produce clear an convincing evidence in order to
defeat a landowner's prima facie showing of entitlement to a particular use of his land. (at 61).
Additionally, the Fourth District decided to follow suit as it held that the processing of site plans
reviewed by local governments had been completely modified to be quais-judicial now. Park of
Commerce Associates and Land Resources Investment Company v, City of Delray Beach. etc.. et.al„ 606
So. 2d 633 (Fla. 4th DCA 1992),fid, 635 So. 2d 12 (1994). In this case, the Fourth District
5.1
specifically overturned its prior decision in City of Boynton Beach v. VSH Realty. Inc„ 443 So. 2d 452
Fla. 4th DCA 1984), by finding that the procedure for site and development plan review was
administrative, and thus quasi-judicial in nature. Therefore, the de novo trial granted by the trial court
here was held to be improper.
Later,the Second District Court of Appeal disagreed that local governments had to show"clear
and convincing" evidence rather than "substantial competent" evidence in Lee County v. Sunbelt
Equities.II. Ltd.Partnership, 619 So. 2d 996(Fla. 2d DCA 1993). Even though it adopted the Fifth
District's Snyder opinion's functional analysis,the Second District felt that an existing zoning
classification was enacted in furtherance of a legitimate and public purpose, ergo, the public interest is
legitimately served by continuing the present classification. Thus, what?
Then, in Monticello Drug Company and O'Connor Development Corporation v.Leon County,
619 So. 2d 361 (Fla. 1st DCA 1993) (now styled O'ConnorDevelopment Corporation v.Leon County)),
the First District Court of Appeal specifically rejected the Snyder decision and reaffirmed the Court's
prior line of cases that rezoning decisions are legislative in nature. See also Florida Land Co. v. City of
Winter Springs,427 So. 2d 170(Fla. 1983);Schauer v.City of Miami Beach, 112 So.2d 838 (Fla.
1959);City of Jacksonville Btaeh_y..Sirubbs,461 So. 2d 160(Fla. 1st DCA 1984)review denied,469 So.
2d 749(Fla. 1985). These differing opinions in the different districts had caused confusion, and in order
to establish consistency in the courts,the Supreme Court reviewed Snyder and decided on the quasi-
judicial method to be supported with"competent substantial evidence." The"root"case involved in
expounding this stricter view is Fasan v.Board of County Commissioners,264 Or. 574, 506 P.2d 23
1973).
III. Local Special Legislation.
Some jurisdictions within the State of Florida, and in other areas of the country,had already
themselves chosen a quasi-judicial/administrative review for such measures. These include Special Acts
which deal with Dade County,Orange County,and Lee County. These Acts specifically provide for
certiorari review, and/or that the applications are to be processed generally according to the Florida Rules
of Appellate Procedure. $tc, CoralReef Nurseries.Inc.v.Babcock Co„410 So.2d 648 (Fla. 3rd DCA
1982);Battaglia Fruit Company v. City of Maitland, 530 So.2d 940(Fla. 5th DCA 1988), rev. dismissed
537 So. 2d 568 (Fla. 1988); Grady v. Lee County,458 So. 2d 1211 (Fla. 2nd DCA 1984).
IV. Any Home Rule Left Out There?
An interesting argument was also made that the difference between these two methods of
consideration of applications by the local legislative bodies,and their subsequent review in a judicial
forum, were not judicial construction but an outgrowth of home rule decision-making by the local
governments. The procedures and applications to be followed should be, and in some cases are clearly
set forth in the local government's land development ordinances themselves. If these ordinances indicate
that the process is legislative in nature, then arguably it is legislative. A Court should thus be bound, it
follows, by this, and review such matters through a de novo proceeding. lf, however, the local
government chose to enact ordinances (or have special acts) indicating that the processing of rezoning or
site plans in that particular local government entity is quasi-judicial or executive/administrative in nature,
5.2
I 1
then review would be through the quasi-judicial procedure at the local level, and then certiorari review
by the Circuit Court.
However, it appears that Sn,_vder will no longer allow such a distinction, and thus all local
government re-zonings are auasr alin nature-
rha tengea
V.
te and
As the quasi-judicial methodology of review for rezonins andterlareas oa con erne(A)
evelopmnt
judicial
n review
has been established by the Florida Supreme Court,there are thr
reviewB
local decision-making; and,(C)encroachment on local government home rule. Furthermore,
the overall opinions of citizens in the community
revs , ( )and there will be more such citizens potentially
affected bylarger rezoning than, say, a single lot set-back variance)as to whether or not a specificg
properlyconsidered.
zoning is desirable will not necessarily be a factor which may be
apparently place the
A. The new standard of review in quasi-judicial
proceedings
wwouldfaor a areenninp complies
initial burden upon the landowners/applicants to demonstrate that their reqrt
requirements of the particular zoning code, nd thatt thesoughtP
gh'isa
consistent
ie that
with
with the the landowners/applicants
the
localecomprehensive plan. Such a showing givescompetent substantialinthemannertheyseek. The burden then shifts to the opposing
they are entitled to
agency,
use their propertyand evidence to prove by
governmental
which must present testimony
standard,
evidence that a legitimate public purpose requires maintaining eekexisting
is at least
designation.
to
satisfys
than
standard, adopted by the Florida Supremert in audes,
by the Fifth DCA( • "
the"presumptively entitled" burden suggestedpreviouslyII,, 595 So. 2d at 81)
quasi- udicial proceeding
before a local government legislative
B. Treating rezoning as a q J
t su
body may involve a re-
examination of all of the local procN
dureseo as
i rdependent
ccomplete
pl to "
rec
r
testifyept
on
since the Court would not permit
additional
documents, Instead,the trial court will only review the
behalf of the local government at any subsequent"trial").record" made before the local legislative body. This may mean that local governments will need tomakesurethattheyhaveonstaff,or retain,expert witnesses(such as planners or engineers)to make thissn. Local ments may
record before the Board or
Commission in favor of the lann ing Department to a t reran advocateof thehavetoprovideseparatespeciallegalcounselfort
local government's regular legal staff is to serve as advisor to the Board or Commission.
required toe
In order to make an effective and supportable 11ue°Td,
I,
heocal
governments
willBoardor
Commissionwill need to at
o
state in full the reasons for any denial of a rezoning q be difficult, if not impossible,to d
make written findings of fact and conclusions of law.
thatis
may
the local government
office be
the time of the initial meeting; and, may thus req the
attorney'sBoard/
Commissioncebe
at
a further
to
prepareeting.
a"draft" of such
wn,tde bu den of p oof
hiftsconsideration
to the landownnerto for pubiand
p
further meeting.
Upon such a she g>
prove that the more restrictive land useconstitutes
1
damnation of the landowner's property
use and the landowner is entitled to just
11,E5.3
l . , l'tiV t l c 1 1
l =t
1 ALC 1
JLL1J
Ph'
Altr
5.1x p
The Fifth District Court in Orange County v. Lust, 602 So.2d 568 (Fla. 5th DCA 1992)
concluded that a circuit court's review is only done to ascertain whether the judgment of the authority is
supported by competent substantial evidence. The trial court is not allowed to decide the case on themerits, but only to review the record for the requisite evidentiary support for the decision of the board.
Additionally, the Jennings v.Dade County case will prohibit, or at least limit, in these quasi-
judicial proceedings any contact with the decision-makers prior to the rezoning hearing on site planreviewtakingplace. This would seem to include, but not be limited to, interested citizens, homeowner'sassociationrepresentatives, environmental groups, business groups,the applicant, the applicant'sconsultants, and perhaps even the Board/Commission's own planning and engineering staffs. This
decision was felt,by many Commissioners,to be an impediment to constituents' access to their electedofficials. There is a proposed bill going before the legislature this year that is supposed to override theJenningsandSnyderdecisionsinthisinstance, and a copy of it is attached hereto as Exhibit "A."
C. A Florida Bar Journal(January 1993) article by Morgan Bentley entitled Quasi-Judicial.
Review of Rezoning Decisions and Local Government Home Rule Power: Can They Be Reconciled?,presents another aspect which must be addressed: DRIs. Local governments commonly followrecommendationsmadebytheirRegionalPlanningCouncils(RPC),but if they choose to approve a DRIinconsistentwithRPC's recommendation,an affected person might be able to use the RPC's position as
evidence against the local government's decision. A court"could"negate the DRI approval, using the
burden of proof created by 5nyder's view that rezoning is quasi-judicial, without examining itsconsistencywiththecomprehensiveplan. See also, Florida Bar Journal(May 1994) article by John W.Howell and David J. Russ, which summarizes the Snyder decisions and discusses the repercussions and
suggests approaches for all sides of the issue.
D. There are,however, still some decisions which may remain legislative rather than quasi-
judicial. In . - • : •• " •'•
642 So. 2d 609(Fla. 4th DCA 1994),
Martin County had refused to approve an application to amend its Comprehensive Growth ManagementPlanandFutureLandUseMapinorderforSection28todevelopaparceloflandasaPUD. The parceloflandwas638acresandwasborderedbyaNationalParkandaStateParkdesignatedasanaturepreserve. The Court stated"considering the pristine nature of the land in the park and around the river,and the use of the area by the public,therefore,the changes sought in this instance involved matters of
policy and were subject to review under the "fairly debatable"standard.IS1. at 612. Similarly,when the
same parties came before the Fourth District Court again on a similar issue wherein the trial court had 'stated that Martin County's decision was arbitrary and capricious and did not utilize the proper method
of review and granted Section 28 injunctive relief and awarded them damages in a total amount of200,000. The Fourth DCA stated that the request for rezoning did not coincide with the ComprehensivePlanandtheburdennevershiftedfromtheapplicanttotheCountyandtherefore, the review waslegislativeandunderthe"fairly debatable" standard. Martin County v. Section 28 Partnership. Ltd.,
Case No. 94-2243 (Fla. 4th DCA February 28, 1996).
Also, early in 1995 the Fourth District Court found that Delray was performing a legislative,
rather than a quasi-judicial function when it established a Sed
vo.
l
Ip6l
nt
Fa
e 4th
a in FR InvestmentCA v.
Delray Beach Community Redevelopment Agency,652
u a , • i v 20 FLW D2574 (Fla. 4th DCA November 22, 1995) has also certified
a question to the Supreme Court: Can a rezoning decision which has limited impact under Snyder, but
5.4
1 1
does not require an amendment to the comprehensive land use plan, still be a quasi-judicial decision
subject to strict scrutiny review? However, the Fourth DCA felt that this case was distinguishable from
Martin County v. Section 28 Partnership Ltd because of the location of the land and the fact that the
amendment would have created a totally new categoroy in the comprehensive plan. The Fourt District
felt that in this case, Yusem, the County was acting in a quasi-judicial matter, the trial court's decision
was reversed because it lacked jurisdiction, and it allowed the landowner to re-file the petition and start
anew.
VI. Ethical and Practical Considerations.
There are some broader, practical questions which need to be addressed by the local government
attorney in preparing the necessary procedures for its counciUcommission such as communication,
notices, and citizen participation. Attention to these questions and some suggestions on how these
questions might be resolved are addressed below as more practical issues and ethical considerations.
A. Example: Tallahassee-Leon County Planning Commission,
Sec. 10-852. Tallahassee-Leon County Planning Commission.
d) Quasi-judicial proceedings. This subsection shall govern all quasi-
judicial proceedings before the Tallahassee-Leon County Planning Commission.
1) Definitions.
a. "De novo proceeding" means a quasi-judicial
proceeding wherein the parties submit testimony and evidence in support of their
positions and the reviewing body evaluates the issues raised in a petition as if they were
being reviewed for the first time.
b. "Ex parte communication" means an oral or written
communication made to a member of the Planning Commission by,or on behalf of, a
party,or otherwise, about the merits of a matter before the Planning Commission, or
foreseeably anticipated to come_before the Commission, outside of a Planning
Commission meeting and without notice to the parties.
c. "Party" means the applicant,the local government
with jurisdiction, or any other person who will suffer an adverse effect to an interest
protected or furthered by the comprehensive plan, including interests related to health
and safety, police and fire protection service systems, densities or intensities of
development, transportation facilities, health care facilities, equipment or services, or
environmental or natural resources. The alleged adverse effect to an interest may be
shared in common with other members of the community at large, but shall exceed in
degree the general interest in community good shared by all persons.
d. "Quasi-judicial proceeding" means a proceeding that
results in a decision having an impact on a limited number of persons or property
5.5
c ___....
L.t-..... .
owners,
iv
identifiable
parties
to
and interests,where the decision is contingentwhge
thet
on
decision
fact or
arrived at from distinct alternatives presented at a hearing,facts application rather than policy setting.
can be viewed as policy pP
e. "
Rendered" means when a decision is reduced to
writing
and formally
delivered or filed.
notice
2) Decisions subject to quasi-judicial proceedings
required.
Planning
Commission,
a. The
Tallahassee-
Leon County rule or policy as set
application
of a g rulepoli
4c` ., :
actions
that involve the
ode,
shall
quasi-
judicial
k,-o-.:
when it is
the
ordinances
Leon County
Bylaws
conduct
the
ahuc
forth in
ordinances
nceof
laws"),unless such •
M:
ce with
Article IX of the
AAgency("
Bylaws"), ir "
proceedingsin
g
accordance
laws.Commission and Local Planning in the By
County Planning all parties as P
formal
are
waived by s shall include,but are not
b.Quasi-judicial proceeding eDevelopments of
and
subdivision
review
for moderate and major
limited
di
site plan
necessarilyall requests
for variances
and
modifications;
and rezoning ,
development,
Impact,
including
Quality
Development
recommendations;
Regional
and Florida
recommendations.
quasi-judicial
c. The
Commission
also
conducts
der Article IX of the
requested
formal
when a party hassun Administrator
or the
Administrator's
gee
Bylaws
a
decision of the County
the
Administrator's
petition
Bylaws
e.
Decisions
County
Administrator orfiles a p
ee.
finalciy
a of the are rendered unless a pain'
Designcalendar days after they
become thirty
s under
Article IX of the Bylaws.
for formal
Proceedingrequire notice of
County
ordinances
notice
d.Whenever Leon C a er of general
Commission to be
published
in a new Sap
bofore the
the Planning thirty
calendar Y
proceedings
before
ublished
no later than
ect
bef
r'of the
circulation,qu,such
notice
publicsball
hearing.
be published
notice
shall
include
subjectectim
about
ua;
theudicial
general
formal,quasi-
judicial
time,and place of the hearing; a arty. The notice shall also
proceeding;
date, for status as P
alien and the
Tallahassee-Leon County
citizenuparticipation informationeabout
the
ss,and telephone number additional
include the name,
employee
who can p
status.
Planning
Department
requirements
for parry
proceeding and about the req
3) Standing to initiate.
Quasi-judicial
proceedingsmaybeinitiatedbythe
otected
will
suffer an
adverse effect
toolan interestd prand safety,
r
persons
who men
applicant
or by P
rehensive
plan,including
interest
furthered by the comp stems,
densities or
intensities of
development,
elopm
environmental
or
police
and fire
protection
eervice
systems,
or services,
facilities,
health care
facilities,
equipment
5.6
natural resources. The alleged adverse interests may be shared in common with other
members.of the community at large, but shall exceed in degree the general interest in
community good shared by all persons. Petitions for formal quasi-judicial proceedings
must be filed in accordance with Article IX of the Bylaws.
4) Nature of proceedings.
a. All quasi-judicial proceedings shall be de novo
proceedings. Unless all parties waive formal proceedings,the parties will be given an
opportunity to present testimony and evidence, to cross examine witnesses, and to
present proposed findings of fact.
b. No ex parte communications will be permitted during
the pendency of a quasi-judicial proceeding before the Planning Commission.
5) Decisions of the commission.
a. All Planning Commission decisions shall be based
upon competent, substantial evidence.
b. All evidence must be presented to the Planning
Commission in accordance with Article IX of the Bylaws.
c. The Planning Commission shall render an order in all
quasi-judicial proceedings that shall be promptly filed in the office of the Clerk of the
Planning Commission and delivered to all parties.
B. Ex-parte Communication..
Policies should be adopted dealing with communication between the public and staff and
the Board/Council/Commission, especially in the context of a quasi-judicial proceeding.
1.Any oral communication? In accord with Jennings,the conservative view on its
application to such proceedings is that aoral communication concerning the case between Board/
Commission members and the general public or applicant should be prohibited unless made at the
hearing and on the record. Others have stated that Jenninga only requires that citizens be "warned"
against such contact since the consequences are not yet clear. The local government's attorney's position
must be sought, and a clear policy developed on this and related issues addressed herein. Orange County
v. Lust, 602 So. 2d 568 (Fla. 5th DCA 1992).
2.May communication be permitted between members of the planning or
engineering staff and the general public? Probably so, but no cases, as yet, on point.
3.May communication be permitted between members of the public and the Board
or Commission members if they are in writing? If such communications are received, may they be
reviewed by the Board members or should they be immediately returned, or transferred to staff to be
5.7
to Claterialsbeimmediately
provided
likewise, a copy of these n
made part
applicant?
staff s p
appears t aat a
f She ding of inniuua and related cases mored cause
the
e
pru
ental
the
ernmtt
provideIt
that a fairthe local
government
government to
copies of X11 documents received by
g
of the record.
made a part as it had in
le the issue of.X l
communications
was
addressed in Lake County
As an example,
the past used the following rules:
5Written
and oral
uI.
i -' • •1.11.. •• -
tea
positions or arguments of the
the
between
commissioners
and staff shall be limited to
discussions
ofaafortheboardmay
facts of an
application
or case.
Discussions of
prohibited.
Attorney
position
shall be p
but shall not a
legal
members of the opposition
by the board members,
to the extent
rendera
opinions
when requestedparty's position over another,except
factual
determinations
advocate
apure y legal question.
necessary to respondfully
6
All written
e ceive d abybooarr d
members
llb
c
A)
and
concerning
an
application
or pending
case shall be
immertaining to a pending case. Staff shall
should not be read
furtherspononce
identified as p
and
c
6(A).(1e
Co
e to
acknowledge
receipt of the
correspondence.
Lake County
forward a written
espons para ra hs
Procedures For Conduct of Quasi-Judicial Hearings, g P
anew
ordinance
this topic
However,Lake County is in the process of adoptingof the proposed
regardingahis
io
and it should be adopted
some time this summer. A copy
attached
hereto as Exhibit"C".
C.
affected
parties,"
and others to be
How are
notices to the applicant, surrounding
landowners,
to
provided or
Should
What would the content of those notices be concerning the recipient's ability tohed?
anticipate?
Should those notices also provide a warning
with regard
p quasi-judicial procedures apply,
which in its own Special Laws determined that quasi-)
Dade County,
v.:;
has,historically,
addressed
the notice issue as follows:
appeals
board or the board of
f
the zoning
No action on any
application shall be taken by been held upon notice of the time,place
county commissionerssefsuchh
untila public hearing
the
applicant.
Notice
and purpose of hearing,the cost of said notice to be borne by
shall be provided as follows:
general
circulation in Dade
in
published
ennal
than twenty
days
1)
Co
Said
as foil
wall(
A)
be published
lllegal note e, to be
papers ofg
timeda
days prior to the public hearing,to contain the date,County,
follows:
if available)and
and
placeno offt
that thirty
the30)
p
location (and street address,
and
the hearing,the property's
legal description, and nature of the application,
including all specific variances and other
requests., and (B) a layman's notice,to be published
in the newspaper of largest
circulation
in Dade County, no later than twenty-five(25) dayss and no earlier than thirty
5.8
Live(35) days prior to the public hearing, to contain the same information as the above
described full legal notice except that the property's legal description may be omitted and
the nature of the application and requests contained therein may be summarized in a
more concise, abbreviated fashion. The layman's notice may be published in a section or
a supplement of the newspaper distributed only in the locality where the property subject
to the application lies. In the event that any time periods specified in this subsection
shall conflict with any applicable provision of the Florida Statutes, the provision of the
Florida Statutes shall govern.
2) A written notice containing general information, including, but not limited to, the
date,time and place of the hearing,the property's location (and street address, if
available), and nature of the application shall be mailed to the property owners of record,
as reflected on the Dade County Property Appraiser's tax roll as updated, within a radius
of five hundred(500)feet of the property described in the application, or such greater
distance as the director may prescribe, no later than thirty(30)days prior to the hearing.
3) The property shall be posted no later than twenty(20) days prior to the hearing in a
manner conspicuous to the public, by a sign or signs containing information including
but not limited to the applied for zoning action and the time and place of the public
hearing.
The person or persons responsible for providing the notices provided in subsection (c)
above shall attach to the application file a sworn affidavit or affidavits setting forth that
they have complied with said subsection. Failure to provide the newspaper notices as
provided, or failure to mail the written notices as provided, or failure to post the property
as provided renders voidable any hearing held on the application.
The director shall have the discretion to expand any of the notice provisions contained in
this section to provide more information if deemed appropriate. Dade County Code,
Chapter 33.
D. Citizen Participation
Local governments should also devise a procedure for notification from applicants, staff, or
members of the public who wish to be participants in the case or provide testimony at the "hearing".
Questions to be addressed include: Who would have standing to appear before the Board/
Council/Commission at the time of the hearing, and who would have standing subsequent to a decision to
appeal"the matter? Should the notices which are provided by mail to "affected parties" also include a
sign-up sheet or other notice so that these "witnesses" will be made known to all parties in advance? Are
depositions permissible of these potential witnesses and in what form or manner would their testimony
be prohibited or compelled?
Lake County utilized sometime around 1993 the following procedure rewarding citizen
participation:
5.9
Notice of Appearance.
1) Anyone other than the Applicant, the Staff and those who are entitled to receive
written notice of the public hearing on the application or case under applicable law, who
wish to present testimony at the hearing or cross examine other witnesses, must file a
Notice of Appearance which must be in the hands of staff not later than five(5) days
prior to the hearing. The Notice of Appearance should include the name and address of
the party seeking to appear. Any Notice of Appearance filed by a person or entity shall
include the right to appear in person or by way of a lawyer or other appropriate
representative, whether or not any representative is mentioned in the Notice.
2) Standing. Those filing a Notice of Appearance shall be considered participants',
in the hearing, subject to a determination of standing if challenged on that point.
3) Continuance Permitted, The Chairman of the board may allow participation in
the hearing by persons filed a Notice of Appearance after the five(5)day deadline;upon
a showing of excusable neglect by that person, but if such a late appearance is allowed-
the Applicant shall have the right to an automatic continuance of the case,at its option,
and without cost. Persons who do not file a Notice of Appearance or who file late and
do not, in the opinion of the Chairman, demonstrate excusable neglect,are not entitled to
seek any delay in the proceedings.
4) Witnesses of County. Anyone who does not file a Notice of Appearance may
sign up at the beginning of the hearing to speak, and those who do so will be called as
witnesses by the Staff during its presentation, whether they support or oppose the Staff
position, subject however to the rights of participants in the hearing to object to the
testimony and to cross examine these witnesses.
5) Limitation on Cross-Examination. No one who does not file a Notice of
Appearance may cross examine any witness. Lake County Procedures for Conduct of
Quasi-Judicial Hearings, Paragraph 2(c).
E. Staff Reports
Input from staff and how it is to be obtained must also be considered. Should a staff report be
prepared in written form in a narrative(or in the nature of a pretrial statement)? Should only oral
presentations at the hearing be permitted by staff'? If a staff report is prepared, how far in advance must
it be submitted and copies be provided to the applicant? Should the applicant be permitted to provide
something in the nature of a response on rebuttal "brief'?
One example:
23.6.2.7. Except in extraordinary circumstances, within twenty-five(25) working
days after an application is complete the County Planner shall produce a written report
summarizing the county staff's review and recommendations concerning disposition of
5.10
the matter which is the subject of the application. Lafayette County Land Development
Code at 23.6.2.7.
F.Additional Information
May members of the Board/Commission obtain information on their own? If so, should that be
disclosed on the record? In what fashion? Many Board or Commission members may know of the
subject property or may wish to view the subject property in advance of the hearing. Would individual
views," which thus allow knowledge of the property without a specific group view, subject that
Board/Council/Commission member to challenge on the basis of prejudice?
VII. Conduct of the "Hearing."
The local government should also spell out the order of appearance or presentation for the
hearing.
A. Order of Presentation. One possible sequence would be as follows:
1.A presentation by staff on the subject matter of the issue.
2.A review of the rules and procedures in advance of the hearing by the chairman
of the Board or by the City or County Attorney.
3.A review of the list of any persons who have submitted notices that they wish to
appear as "witnesses" in the proceeding, including citizens, staff, and applicant.
4.All potential witnesses who are to provide factual testimony should be
determined(and a discussion should be held as to whether or not presentations by counsel for the
applicant or the Planning Department or the County will be received as evidence or as merely argument),
and consideration should be given as to how and when such witnesses will be placed under oath.
5.Decisions should be made as to whether or not cross-examination should be
permitted of all witnesses, both as to the applicant's representatives, staff, and as to members of the
general public. Will members of the general public be permitted to have their own counsel present who
may object on the record to questions being asked of the citizen witnesses by the applicant's counsel?
6.The rules concerning admission of evidence and objections to evidence should
be made known and decided in advance.
7.Staff to make presentation of its case including submission of evidence and
witness testimony.
8.The applicant that would be permitted to present its case in chief.
5.11
meq.
h._
and who t
or the applicant
een called y e staff
g. Then any other
witnesses
lave standing,
ho have not bW 11 presen tthehr"testimony.
who have submitted notices in advance,
10.
opportunity to present rebuttal testimony.
The applicant should then have an
B.
Lafayette County had utilized this sequence at some time in the past and may still be
using it now.
23.7.2. Order of proceedings.
an
o23.7.2.1.
Hearings shall be conducted
in
possible,the following shall-beahe order ``''
informal but courteous and
professional
manner. To the extent reasonably
of the proceedings: of
Hearing officer
announcementofthe
rmatterrsto'l
heard
as y
futuredexplanation
iofs
23.7.2.1.1 pro..
the rights and responsibilitiesela oo the matter being heard.
that may
occur lication or
23.7.2.1.2.
Brief synopsis by county staff describing the nature of the app
appeal.e
23.7.2.1.3.
Sffinodtion of exhibits.
23.7.2.1.4. Staff summary
of issues and
recommendations.
3.7.2.1.5.
Presentation by applicant, appellant or representative.
2lication or appeal.
23.7.2.1.6. Statements by other persons in support of the app
Statements by persons who oppose the application or appeal,or who
23.7.2.1.7. Stat
have questions or concerns.
ff.
23.72.1.8.
staff.Responses and questions by
23.7.2.1.9. Final argument by the applicant or appellant.
23.7.2.1.10. Final argument by the staff.
appellant or other
officer,the applicant,
23.7.2.1.11. At the direction of the hearing
parties m
ette County
a be permitted
to respond to the final staff
recommendation.
Lafay
yLandDevelopment Code at Chapter 23.
C. P. • F ,ss i • -
t•••s '•1.
5.12
May members of the Board of County Commissioners or City Commissioners interject questions
during the course of testimony? May questions be asked by the applicant of members of the Board? Of
staff? Of citizen participants? Should such questions go through the presiding officer? As an example
of procedures for a quasi-judical hearing see Exhibit"B."
D. Record.
For a quasi-judicial matter,to make a complete record, a verbatim transcription of the meeting
will need to be made by a certified stenographer or the like. Should this record be transcribed prior to
the time that any decision is made? May all members of the Board be permitted to review it, as well as
the applicant and staff? Should post-prehearing legal briefs be permitted and under what circumstances?
E. Off-The-Record Information.
If Board/Council/Commission members have intentionally or unintentionally received
information outside of the record, how should this be disclosed? Should the general rules regarding
voting conflicts be applicable to such decision-making? Should general knowledge of the community or
specific knowledge of the subject project or property be sufficient to create a conflict?
Can the applicant "voir dire" the Commissioners, like selecting a jury about what they j4 know?
If such conflicts are present, would that subject one or more of the Board members to recusal upon
request of either the staff or the applicant? If recusals based on prejudice or outside knowledge create a
lack of a quorum, what would be the procedures that would then be followed? Would the Governor
appoint a substitute to serve in the matter from which the individual is disqualified in the event a quorum
no longer remains, as with the provisions set forth in Florida Statutes, Section 120.71?
F. Transcripts.
Should all members of the public be permitted to receive copies of the transcript, even those who
were not witnesses? Would the regular cost of providing public records be applicable to such instances?
May those parties also be permitted to submit"post-hearing briefs"? Does this conflict with the
requirements in Florida Statutes, Section 286.0105, providing notice that no verbatim transcriptions of
matters coming before a Board or Commission are required or provided?
G. Preparation of Final Orders.
Should a motion be made at the time of the conclusion of the final hearing by any of the
members to give finality to the hearing, or should there be only a preliminary motion to provide guidance
to staff(the County or City Attorney or the Planning Director)to draft an appropriate "final order"?
Should "draft" final orders be prepared during the course of the hearing, or while other items on the
agenda are considered then re-presented, or should the draft be presented at some future date? Should
both parties be permitted to submit proposed final orders from which the Board or Commissioner may
choose all or a portion?
H. One Florida county utilizes the following procedures:
23.8.1. Final decisions.
5.13
23.8.1.1. Except in extraordinary circumstances or complex matters the hearing l
officer shall render a written decision within five(5)working days after completion of
the public hearings on all matters for which the hearing officer is authorized to render a
final decision.
23.8.1.2. The hearing officer's decision shall contain the following:
23.81.1.2.1. Identification of the subject matter of property involved and the action
requested by the applicant or appellant.
23.8.1.2.2 Summary of the evidence and testimony in the matter, including the
recommendations of the county staff.
23.8.1.2.3. Findings of fact and conclusions of law based on the evidence and
testimony in the matter.
a ;si sr
23.8.1.2.4. As to an appeal of administrative action,the decision of the hearing_ t I }fl
officer whether to grant or deny the appeal and specifying any administrative action to
be taken by virtue of a decision granting an appeal.
23.8.1.2.5. As to other matters,the decision of the hearing officer whether to grant
or deny the application or to grant the application with conditions and specifying any
such conditions.
23.8.1.2.6. A statement that the decision shall be final on the fifteenth(15)calendar
day after it is rendered unless the Board of County Commissioners assumes jurisdiction
of the matter decided pursuant to the provisions of the Code. Lafayette County Land
Development Code, at Chapter 23.
I.Approval of Final Order.
Final orders should be approved by a majority vote of the Board and contain specific findings of
fact and conclusions of law indicating the factual and legal basis for the motion which should than be
made a part of the record as well. However, should "dissenting" or"concurring" opinions be included by
Board or Commission members who vote in the minority?
J.Maintaining Files.
All files and materials submitted at the hearing should be maintained as if it were a court file for
purposes of establishing a potential appellate record. Who should be the custodian of these records? The
City Clerk, the Clerk of the Circuit Court(where the subject appeal would subsequently be lodged), the
Planning staff, or some other entity? Whatever is decided, it might be wise to keep a copy with the
official record keeper" of the county or city, whomever that may be. May members of the public
examine the file during the pendency of the matter? May members of the Board or Commission examine
the file during the pendency of the matter; and if so, how would this be disclosed to the applicant or
staff?
5.14
VIII. Conduct of Hearing as related to Evidentiary Rulings.
Certain legal or technical arguments, or objections, may be lodged regarding admissibility of
evidence" at these hearings. Consideration should be given as to whether or not a basic training course
in the Rules of Civil Procedure, and the conduct of hearings, should be presented in seminar fashion to
the Board of County Commissioners or City Commissioners and their staff. How would rulings on
evidence submissions be determined? By a majority vote of those present and voting, or by the
designated chair of that particular meeting? If it is delegated to the chair, are the chair's rulings final, or
subject to an appeal to the remaining Board members? May procedures such as voir dire be permitted of
witnesses?
IX. Use of a Hearing Officer?
A. In order to deal with the judicial nature of such proceedings, some jurisdictions created a
position for a Hearing Officer. Such a Hearing Officer, trained in trial practice, conducts the hearing,
then makes a recommended decision which the legislative body reviews without further de novo
judicial" proceedings. Lafayette County, for example has used this methodology:
23.5. OFFICE OF THE COUNTY HEARING OFFICER.
23.5.1. Position. The Board of County Commissioners hereby creates the
Office of the county hearing officer. The hearing officer shall have those powers and
duties enumerated in the Lafayette County Land Development Code and other applicable
county ordinances.
The hearing officer shall be hired on a part-time basis by the Lafayette County
board of county commissioners, and shall serve at the pleasure of the Board.
Any hearing officer may be removed at any time, with or without cause, by an
absolute majority of the Board of County Commissioners.
Because of the judicial nature of the position,the hearing officer shall report
directly to the board. The hearing officer will not represent clients in any action
before the board of County commissioners nor accept any client or business
which might cause an actual or perceived conflict of interest.
23.5.2. Qualifications. The hearing officer shall possess sufficient experience
and expertise to carry out the duties of the position. The hearing officer shall
exhibit demonstrated ability in the areas of local land use law and zoning,
comprehensive planning,judicial and administrative procedure and knowledge
of the rules of evidence. The hearing officer shall be licensed to practice law in
the State of Florida and shall hold a law degree from an A.B.A. accredited law
school. Lafayette County Land Development Code at Chapter 23.
B. Historically, local governments have considered delegating the rezoning and site plans
consideration function to established boards or independent hearing officers. This is generally done,
5.15
presently, for quasi-judicial functions such as the granting of variances by boards of adjustment. This is
a traditionally accepted "judicial" process and forum.
However, when such matters were considered to be legislative, this procedure was struck down
on the basis that legislative decision-making may not be delegated. Hillsborough County utilized such a
procedure in the early 1980's until a trial court found it to be improper.
Since rezonings on site plan review may now be deemed quasi-judicial, perhaps delegation to a
separate board hearing officer, whether their decisions are binding or advisory, may be appropriate to
overcome legal or procedural obstacles and to provide technical expertise. A major negative is whether
such a delegation would deprive the citizens of access to and use of their duly elected representatives?
While considering whether to install a hearing officer procedure,one must also consider whether .
or not, and under what circumstances,the hearing officer's decision might be binding. Would those
hearing officers' decisions,even if binding,be "appealable"to the Board or Commission? If they are
advisory only, does the Board or Commission conduct another full de novo trial, or should the matter be
considered to be "on appeal"with its attendant appellate rules to the Board or Commission? At what- -i
juncture during this process would the cX parte rule come into play?
X. Subsequent Review by Circuit Court.
A. The subsequent review of quasi-judicial decisions regarding land use by the Circuit
Court could be by common law writ of certiorari or certiorari as provided in the local government's
adopting ordinances. However, if the denial was based upon inconsistency with local comprehensive
plan of a local development order,would such review be correct or even permitted? The procedures set
forth in Florida Statutes, Section 163.3157, are the"sole and exclusive" remedy and methodology for a
challenge based upon local comprehensive plan consistency, debatably. In this instance,would all the
verified complaint" procedures and methodology be applicable? Would this be the exclusive remedy?
B. In cases of alleged inconsistency with a local comprehensive plan, may persons who are
not parties or witnesses during the local government's hearing, and who had received no standing by
local ordinance, now become "affected parties"who could challenge the decision of the Board of County
Commissioners or City Commission through the Chapter 163,Florida Statutes, methodology(even
though they had yet to be participants in the process)? If the verified complaint methodology is
provided, does this require the Board or Commission to have yet another hearing on the subject matter?
If so, is it an appellate proceeding, a general discussion, or another de novo review? If Chapter 163 is
applicable, then how would settlements of these cases be required to be reviewed? At another public
hearing? At another de novo review? Or at another meeting which is duly notice pursuant to Section
286.011, Florida Statutes("Sunshine Law")?
C. As stated previously there was a dispute among the appellate districts as to what the
standard for review would be. Under Sunbelt, it was the lesser standard of"competent substantial"
evidence to support the local government's decision. But, under the Supreme Court's decision in
Snyder, the more difficult "competent substantial evidence" standard now applies. Subsequent review by
an appellate court would then only address whether due process was afforded and whether the correct
5.16
law was applied below. See Education Development Center v. West Palm Beach, 541 So. 2d 106(Fla.
1989), and Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).
XI. Consequences of Ex Parte Communication.
If it is determined, either before a hearing or thereafter,that off-the-record communication,
either verbal or written, has been made with the decision-maker(s), can this matter be cured in advance
or re-reviewed by the same Board or Commission? If such a matter is presented for the first time during
a Court challenge, what is the consequence of finding such es,parte communication? In the Jennings v,
Dade County decision, supra,the Court stated that
Upon remand . . . (the applicant)shall be afforded an opportunity to amend his
complaint. Upon such an amendment(the applicant)shall be provided an evidentiary
hearing to present his prima facie case that ea parte contacts occurred. Upon such proof,
prejudice shall be presumed. The burden will then switch to the respondents to rebut the
presumption that prejudice occurred to the claimant. Should the respondents produce
enough evidence to dispel the presumption,then it will become the duty of the trial judge
to determine the claim in light of all of the evidence in the case". (589 So. 2d 1337,
1342).
What the Jennings case did not address is the possibility that the respondents may not be able to
rebut the presumption of ex parte contacts. In that instance,what becomes of the case? Are Board or
Commission members now prejudiced and thus precluded forever to make a decision on the subject
application? In that instance,who makes the decision,or is the request in the application automatically
now granted where the Board/Commission had previously denied the request? What if the application
really is inconsistent with the local comprehensive plan?
5.17
XII. Conclusion.
Attachedfor your information is a copy of a proposed Bill for the 1996 Florida Legislature's
session seeking,again, to over-ride the Snyder and Jennings.opinions regarding ex parte communication.
Also, attached is a copy of the section of Leon County's ordinance on Land Development Regulations as
they relate to quasi-judicial hearings.
A:\QUASI-JU.SPC
5.18
SNYDER/JENNINGS UPDATE AND APPLICABILITY
TO NON-TRADITIONAL QUASI-JUDICIAL PROCESSES
BY
THOMAS G. PELHAM
APGAR & PELHAM
909 East Park Avenue
Tallahassee, Florida 32301
904) 222-5984
1
SNYDER/JENNINGS UPDATE AND APPLICABILITY
TO NON-TRADITIONAL QUASI-JUDICIAL PROCESSES
I.IN IRODUCTION
Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla.
1993) is revolutionizing the local land use decision-making process. The impact of this
decision, which characterized some local rezoning decisions as quasi-judicial actions subject
to procedural due process requirements, has been compounded by Jennings v. Dade County,
589 So. 2d 1337 (Fla. 3d DCA 1993). Jennings held that ex parte communications with
quasi-judicial decisionmakers is a violation of due process, are presumed prejudicial, and
will result in invalidation of the local decision unless local governments rebuts the
presumption. Although Snyder dealt with a rezoning decision, the rule enunciated by the
Supreme Court for determining whether an action is quasi-judicial or legislative is now
being extended by lower courts to an increasingly wide array of local governmental actions,
including such non-traditional quasi-judicial processes as the vacation of roadways and the
approval of planned unit developments. Where will the increasing trend toward
judicialization of the local decisionmaking process end, and is legislation the answer?
II. THE SNYDER DECISION
Snyder enunciated the following tests for determining whether an action is legislative
or quasi-judicial:
It is the character of the hearing that determines whether or
not board action is legislative or quasi-judicial . . . Generally
speaking, legislative action results in the formulation of a
general rule of policy, whereas judicial action results in the
application of a general rule of policy.
627 So. 2d at 474. (citations omitted and emphasis added).
The Supreme Court then applied this test to local rezoning actions and reached the
conclusions that "comprehensive rezonings affecting a large portion of the public are
legislative in nature" but
Rezoning actions which have an impact on a limited number
of persons or property owners, on identifiable parties and
interests, where the decision is contingent on a fact or facts
arrived at from distinct alternatives presented at a hearing, and
where the decision can be functionally viewed as policy
application, rather than policy setting, are in the nature of . .
quasi-judicial actions . . . .
2
Id. at 474. Under this dual classification of rezoning actions, the court concluded that the
application in Snyder to rezone the Snyders' one-half acre parcel of land was quasi-judicial.
Regarding such quasi-judicial rezoning decisions, the Supreme Court ruled that these
decisions are "subject to strict scrutiny, i.e., strict compliance with the comprehensive
plan," id. at 475; the landowner-applicant has the burden of demonstrating consistency with
the comprehensive plan, id. at 476; that the burden then shifts to the local government to
demonstrate that maintaining an existing zoning classification, assuming it is consistent with
the comprehensive plan, accomplishes a legitimate public purpose, id. at 475-76; that the
local government has the discretion to decide that the maximum development density
provided for in the comprehensive plan should not be allowed so long as some development
that is consistent with the plan is permitted, id. at 475; and that the local decision must be
supported by competent substantial evidence. Id. at 476.
For a discussion of the Snyder decision, see Thomas G. Pelham, Quasi-Judicial
Rezonings: A Commentary on the Snyder Decision and the Consistency Requirement, 9
J. Land U. & Env'l Law 243 (1994).
III. APPLICATION OF SNYDER TO LOCAL COMPREHENSIVE PLAN
AMENDMENTS
The facts in Snyder concerned an application for rezoning. Consequently, the
Supreme Court in Snyder did not deal specifically with the nature of local comprehensive
plan amendments. Moreover, in City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994),
the Supreme Court declined to decide a case which dealt with the nature of local
comprehensive plan amendments and remanded the case to the Fifth District Court of
Appeal. Consequently, the Supreme Court's failure to clearly resolve the quasi-judicial
issue as it relates to comprehensive plan amendments and its dual classification of rezoning
actions has created a great deal of confusion and resulted in continuing litigation over this
issue, especially in the Florida Fourth District Court of Appeal.
A. City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994). A landowner
applied to the City of Melbourne for an amendment to the City Comprehensive Plan's
Future Land Use Map to change the designation of its property from low density residential
to commercial and for a rezoning. After the City denied the application, the landowner
filed suit in circuit court, which initially held that the City's denial was a legislative act but
then on rehearing, based on the Fifth District's Snyder decision, held that the plan
amendment was quasi-judicial. After the Fifth District affirmed the circuit court's final
order on rehearing, the Supreme Court first accepted jurisdiction of the case but then, after
rendering its Snyder decision, remanded Puma to the Fifth District "for further consideration
consistent with our opinion in Snyder." Id. at 1097. This brief opinion in Puma has
created confusion about the legislative/quasi-judicial nature of comprehensive plan
amendments.
B. Florida Institute of Technology v. Martin County, 641 So. 2d 898 (Fla. 4th
DCA 1994) rev. denied, 651 So. 2d 1195 (Fla. 1995). The Florida Institute of Technology
3
FIT") owned an 81-acre tract of land. In 1987 FIT sold the land to new owners who
applied for a comprehensive plan amendment to change the land use designation of the
property to allow commercial, office, and residential uses as a planned unit development
PUD). Martin County approved the application, but the new owners never developed the
land. FIT subsequently reacquired the land through foreclosure and sought an extension of
the PUD timetable for development of the property. Concerned about the validity of the
original rezoning, the County staff suggested that the requested extension be accomplished
by County-initiated land use plan amendment and rezoning for the specific property. After
the Board denied this request, FIT sought judicial review. The Fourth District held that the
County's decision in denying the requested plan amendment was quasi-judicial because "its
decision regarding the land use amendment applied the underlying policies of the
comprehensive plan to a specific parcel and landowner under circumstances allegedly
consistent with those policies and should be construed not as policy setting, but as policy
application." Id. at 900.
C. Section 28 v. Martin County, 642 So. 2d 609 (Fla. 4th DCA 1994), rev.
denied, 654 So. 2d 920 (Fla. 1995). The owner/applicant of a 630-acre parcel sought to
develop the land with a use not allowed in the County's Comprehensive Plan. The land was
located outside the Urban Service Area designated in the Comprehensive Plan and did not
qualify for public water, sewer, or other urban facilities. Consequently, the applicant
requested the County to amend its Comprehensive Plan to create a new land use category
designated "Adjacent County Urban Service Areas" ("ACUSA"). Land designated ACUSA
could be developed by using urban facilities from an adjacent county. The applicant also
requested a Future Land Use Plan Map amendment to designate its land for ACUSA use. - C
Id. at 612. The Fourth District Court of Appeal held that Martin County's refusal to
transmit the applicant's proposed comprehensive plan amendment to the Department of
Community Affairs was a legislative action. Citing Snyder, the court stated:
T]he County's decision not to amend the comprehensive plan
to allow ACUSAs was a legislative or policymaking decision
under Snyder. We come to that conclusion because an
ACUSA would be a new classification of property which is
not presently in the comprehensive plan, and thus "a
formulation of a general rule of policy." Snyder, 627 So. 2d
at 474. It would not be the application of policy because there
are no provisions under the existing plan for the creation of
ACUSAs.
Id.
D. Martin County v. Yusem, 20 Fla. L. Weekly D1967 (AUG. 30, 1995),
modified on other grounds, 20 Fla. L. Weekly D2574 (NOV. 22, 1995), petition for
discretionary review pending, Florida Supreme Court Case No. 87-078. The 54-acre tract
at issue in Yusem was eligible for development at two units per acre under the Martin
County Comprehensive Plan. However, the Martin County Future Land Use Map (FLUM)
limited development on this parcel to one unit per acre. Accordingly, the landowner filed
4
t
an application to amend only the FLUM to allow a development of up to two units per acre
as provided in the comprehensive plan. Martin County denied the application for a FLUM
amendment. The Fourth District Court held that the County's denial of this site-specific
application to amend the FLUM of the Comprehensive Plan was quasi-judicial. Id. at
D1968. Citing both Snyder and Florida Institute, the court found that this application "will
have a limited impact on the public" and "essentially addressed the change of the land use
designation for a particular piece of property." Id. Therefore, Yusem concluded that the
plan amendment involved a limited impact, site-specific amendment to the FLUM, did not
formulate new policy, and was therefore, quasi-judicial in nature.
The Florida Supreme Court is currently considering whether to take jurisdiction and
render a decision in Yusem. The Florida League of Cities has filed an amicus brief which
contends that all comprehensive plan amendments should be deemed legislative actions for
the following reasons: (1) The Growth Management Act envisioned comprehensive plans
and plan amendments as legislative acts; (2) Comprehensive Plan Amendments are
legislative acts under controlling Florida case law; (3) Compelling public policy
considerations support the characterization of all plan amendments as legislative acts; and
4) Affected landowners have adequate remedies without the addition of a quasi-judicial
hearing requirement to the plan amendment process. In briefs filed with the Supreme
Court, both Martin County and the Florida League of Cities are urging the Supreme Court
to adopt the dissenting opinion in Yusem which argues that all plan amendments, like the
original comprehensive plan itself, are legislative acts.
E. Board of County Commissioners of Sarasota County v. Karp, et al., 20 Fla.
L. Weekly D2268 (OCT. 4th 1995). This case involved a "corridor plan" adopted by
Sarasota County as a "critical area plan" as provided for in the County Comprehensive Plan.
The corridor plan extended along a parkway for a distance of 5.5 miles, affected 179 acres
of land, including 48 separate parcels. The corridor plan designated Respondent's property,
which was zoned residential, for office use and also imposed a condition applicable only to
Respondent's property with the condition reserved a 40-foot wide easement across their
property to protect the County's waterlines. The Second District Court of Appeal reversed
the Circuit Court's determination that, under the particular circumstances of the case, the
adoption of the corridor plan was quasi-judicial. The Second District determined that the
action was legislative in nature under the Snyder test, finding that the corridor plan affected
some 179 acres of land, including a substantial number of separate parcels (48) and that the
area was a "vibrant, rapidly changing area of the County in need of a more updated plan."
As for the easement condition, the Court characterized it as a "minor, rather tentative
requirement," which did not convert the corridor plan to a quasi-judicial action. Id. at
D2268.
IV. APPLICATION OF SNYDER TO VACATION OF ALLEYS AND ROADWAYS
Hernando County v. Franklin, 21 Fla. L. Weekly D257 (Fla. 5th DCA 1996)
involved the Franklins' petition to close an alley separating their two lots and to vacate the
street which separated both lots from the Gulf. After the County denied the petition to
vacate the roadway and alley, the Franklins filed an action for declaratory relief in the
5
circuit court after the 30 day period for seeking certiorari review had expired. After the
Franklins obtained a favorable circuit court judgment, the County sought review in the
Second District Court of Appeal. The Second District noted that there was an issue
concerning the jurisdiction of the trial court:
If the action of the Board of County Commissioners in closing
roads is quasi-judicial, the only review is by certiorari. On
the other hand, if such action is legislative, then declaratory
relief is appropriate. Because this matter was not properly
briefed and because the issue was not presented to the trial
court, we believe that the issue should be sent back for better
development.
Id. at D258. The Second District directed the trial court to consider the Snyder test in
determining the nature of the County's action.
V. APPLICATION OF SNYDER TO PLANNED UNIT DEVELOPMENTS
The Planned Unit Development technique provides a flexible approach to zoning
which allows the local government and developer to negotiate a development plan that -
departs from the more rigid requirements of traditional Euclidean zoning. If the local
government and the developer cannot reach agreement on a PUD development plan, then
a landowner retains the traditional zoning classification assigned to its property. Following
Snyder, the question arises as to whether the local government's action on an application .:-,' -
for PUD zoning, a PUD development plan, and amendments to PUD zoning and
development plans, are quasi-judicial or legislative actions. The issue is significant because
a local government's decision to depart from the requirements of its traditional zoning
district regulations can be viewed as one involving a large measure of discretion and
policymaking. However, if Snyder converts such decisions into quasi-judicial actions, the
local government's discretion is restricted and its flexibility in the negotiations with the
applicant is reduced.
A. Pre-Snyder Approach: Porpoise Point Partnership v. St. Johns County, 532
So. 2d 727 (Fla. 5th DCA 1988). A landowner applied to have its property rezoned back
to commercial, but the County Commission denied the request and determined that a PUD
approach would be better. Although the landowner objected to the PUD classification, the
County nevertheless rezoned the property to a planned unit development category, including
a specific site plan and development schedule prepared by the County Planning Staff. The
Fifth District Court of Appeals quashed the County's decision because of the nature of PUD
zoning, noting that the concept provides a flexible approach which "requires cooperation
between the property owners and the zoning authority in creating an overall plan." Id. at
728-29. While the local government may impose a traditional zoning classification on
property, the PUD approach by its very nature must be sought by the property owner, and
cannot be imposed over an owner's objection." Id. at 729. (Impliedly and logically, the
landowner also cannot impose a specific PUD plan on the local government). The Court
6
found that the local government's rezoning of the property to a PUD classification was not
fairly debatable and, therefore, quashed the local government's decision.
B. Post-Snyder Approach: ABG Real Estate Development v. St. Johns County,
608 So. 2d 59 (Fla. App. 5th DCA 1992). ABG applied to St. Johns County to modify a
final development plan for its PUD. More specifically, ABG sought approval to locate a
McDonald's restaurant within the commercial area of the PUD. The PUD development
order allowed such use as an exception. However, the County denied the application on the
grounds that it would be "contrary to public health, safety, or welfare and incompatible with
the neighborhood." Id. at 61. The County made no findings of fact and gave no other
reasons for its denial. Following its decision in Snyder, the Fifth District Court of Appeal
reversed the County's denial of the application. The Court held that the decision was quasi-
judicial and subject to the competent substantial evidence standard set forth in Snyder.
Moreover, it held that the County had not presented clear and convincing evidence of any
public necessity justifying denial of the application. Id. at 62. (The clear and convincing
evidence rule was subsequently overruled by the Supreme Court in its Snyder decision).
The Court did note that the decision was quasi-judicial because it involved the granting of
an exception which is subject to a competent substantial evidence standard and not the
traditional fairly debatable rule. Because ABG had made a prima facie case in support of
its application and the County had failed to present clear and compelling evidence of a
public necessity, the Court reversed the County's decision as arbitrary and unreasonable.
Id. at 63.
City of New Smyrna Beach v. Andover Development Corporation, 21 Fla. L.
Weekly D997 (Fla. 5th DCA Apr. 26, 1996) is the Fifth District's latest decision dealing
with the PUD technique. The Fifth District reversed the Circuit Court's order directing the
City to approve the developer's application for an amendment to its PUD final development
plan on grounds that are not relevant here. However, in commenting on the application for
a PUD amendment, the Court included the following note:
Since a PUD 'zoning' is not a fixed area on the zoning map
but instead is a zoning concept granted only to an approved,
large project (and then shown on the zoning map), is the
amendment of such a 'zone' the 'formation of a [new] general
rule of policy' as it relates to the affected area? And since we
are talking about the 'rezoning' of a 55 acre parcel that will
affect many residents of the project who may have purchased
in reliance on the original plans, will the city commission's
decision be legislative or quasi-judicial? See Board of County
Commissioners of Brevard County v. Snyder, 627 So. 2d 469
Fla. 1993).
Id. at D998 n.2.
7
VI. APPLICATION OF SNYDER TO LOCAL DRI PROCEEDINGS
Negotiation of a DRI development order has some similarities to the negotiation of
a PUD development plan. Local DRI development approval entails more than obtaining or
complying with local zoning and other land use regulations; a development order which
adequately addresses regional impacts in accordance with the provisions of Chapter 380,
Florida Statutes, must also be negotiated and adopted by the local government. The
regional impact criteria of Chapter 380 are rather open ended; they simply require the local
government to consider the impact of the proposed project on various regional resources.
A determination of compliance with these regional factors entails the exercise of discretion
and policymaking both at the local government level and before the Florida Land & Water
Adjudicatory Commission. To what extent should local DRI decisions be subject to the
Snyder mandates?
VII. THE APPLICABILITY OF SNYDER TO OTHER LOCAL ACTIONS
Some local governments have contended that the Florida Supreme Court's analysis
in Snyder is limited to rezoning cases. However, the Florida Supreme Court in Park of
Commerce Associates v. City of Delray Beach, 636 So. 2d 12 (Fla. 1994), expressly
rejected this contention. In Park of Commerce, the City of Delray Beach rejected an
applicant's site plan for development. The applicant asserted that the City's decision was
a quasi-judicial action and sought certiorari review in circuit court. The City opposed the
certiorari review on the basis that the site plan review is actually a legislative action. In
reaching its conclusion that a decision on a site plan is a quasi-judicial action and not a
legislative action, the Supreme Court relied upon the functional tests set forth in Snyder.
Park of Commerce, 636 So. 2d at 15 (quoting Snyder, 627 So. 2d at 474). Based upon this
analysis, the Supreme Court determined that the City's denial of a site plan was a quasi-
judicial action. Moreover, the Supreme Court expressly refused to recede from its ruling
in Snyder, holding that:
The City of Delray Beach urges this court to recede from its
ruling in Snyder. We decline to do so. Because the site
review plan that the . . . City . . . denied meets the
characteristics set out in Snyder, the plan was properly
reviewed by certiorari. No legislative discretion was involved
in determining whether the property owner complied with
regulations set out in a local ordinance.
Id. (emphasis added). The Supreme Court concluded that decisions of local governments
on building permits, site plans, and other development orders are quasi-judicial in nature.
Id. See also Grace v. Town of Palm Beach, 56 So. 2d 945 (Fla. 4th DCA 1995) (special
exceptions).
8
VIII. IS-LEGISLATION THE ANSWER?
A. State and local legislation can and should more clearly differentiate between
policy formulation and policy application activities.
B. Legislation was introduced into the 1996 Florida Legislature by
Representative Stan Geller which would have declared all comprehensive plan amendments
and all rezonings actions to be legislative acts. This proposal encountered strong opposition
from a variety of groups. As a result, Representative Geller revised his proposal to address
only the Jennings ex parte issue. The text of his proposal, which was passed by the 1996
Florida Legislature (SB524) as an amendment to Fla. Stat. § 286.0115, reads as follows:
2)(a) Notwithstanding the provisions of subsection (1), a .
county or municipality may adopt an ordinance or resolution
establishing the procedures and provisions of this subsection
for quasi-judicial proceedings on local government land use
matters. The ordinance or resolution shall provide procedures
and provisions identical to this subsection. However, this
subsection does not require a county or municipality to adopt
such an ordinance or resolution.
b) In a quasi-judicial proceeding on local government land
use matters, a person who appears before the decisionmaking
body who is not a party or party-intervenor shall be allowed
to testify before the decisionmaking body, subject to control
by the decisionmaking body, and may be requested to respond
to questions from the decisionmaking body, but need not be
sworn as a witness, is not required to be subject to cross-
examination, and is not required to be qualified as an expert
witness. The decisionmaking body shall assign weight and
credibility to such testimony as it deems appropriate. Aparty
or partv-intervenor in a quasi-judicial proceeding on local
government land use matters, upon request by another party
or party-intervenor, shall he sworn as a witness, shall be
subject to cross-examination by other panics or party-
intervenors, and shall be required to be qualified as an expert
witness. as appropriate.
c) In a quasi-judicial proceeding on local government land
use matters, a person may not be precluded from
communicating directly with a member of the decisionmaking
body by application of ex parte communication prohibitions.
Disclosure of such communications by a member of the
decisionmaking body is not required, and such nondisclosure
shall not be presumed prejudicial to the decision of the
decisionmaking body. All decisions of the decisionmaking
9
body in a quasi-judicial proceeding on local government land
use matters must be supported by substantial, competent
evidence in the record pertinent to the proceeding, irrespective
of such communications.
Local governments should probably be very cautious in relying on this legislation
which takes effect October 1, 1996. The Jennings decision regarding ex parte
communications was based on constitutional due process requirements. The power of the
Legislature to alter the Jennings rule is debatable.
C. The need for a uniform code of minimum local government procedures. The
cities and counties should take the lead in proposing a uniform code which provides a
minimum level of procedural protection at local proceedings. Otherwise, the Florida
Legislature may do the job for you.
kar
C
10
Agenda
Dutton Island Workshop
3 March 1998 at 4:30 pm
Purpose: The objective of this workshop shall be to fully acquaint all
Members of the Atlantic Beach City Commission with the
Facts pertinent to the proposed joint purchase of the land known
as "Pine Island"by the State of Florida, the City of Jacksonville
County of Duval), and the City of Atlantic Beach, as a Preserve
dedicated for use as a Regional public park.
A. Introduction of Presenters: (Mayor Shaughnessy)
The Honorable John A. Delaney, Mayor, City of Jacksonville
The Honorable Lyman T. Fletcher, Former Mayor, City of
Atlantic Beach
Mr. Tom Dumas,
Member: Florida Land Trust
Agent for Estate of Walter E. Dutton, deceased
Consultant to the Cities of Atlantic Beach and
Jacksonville on the Grant Application to
Preservation 2000 Land Acquisition Program.
Members of City Staff
B. Philosophy behind Preservation 2000 program(Mayor Shaughnessy)
C. History of"Dutton Island" project. (Former Mayor Fletcher, Mr.Dumas)
D. Funding for the Project:
1. Committment from City of Atlantic Beach (Mayor Fletcher)
2. Committment from City of Jacksonville (Mayor Delaney)
3. Committment from State of Florida (Ann Perry, Esq.)
4. Committment from Jacksonville Port Authority
5. Other sources of funding (Mayor Fletcher, Mr. Dumas)
E. Current status of Application and scheduled closing date (Mr. Dumas)
F. Questions from Commissioners
G. Opportunity for Public Comment