08-24-87 v CITY OF ATLANTIC BEACH
August 24, 1987
Call to Order
Invocation and Pledge to the Flag
1. Approval of the minutes of the regular meeting of August 10, 1987
2. Recognition of visitors
3. Bid Openings:
A. Receipt of sealed bids for self-contained compactor dumpster
for use at Ragtime
B. Receipt of sealed bids for installation of new water system in
Lake Elizabeth subdivision, Buccaneer Water and Sewer District
4. Appearances:
A. Mr. John Landon to discuss zoning on Lot 37, North Atlantic
Beach, Unit 1
B. Mr. Frank Delaney to discuss with the City Commission litiga-
tion involving attorneys fees
C. Mr. Steve Cissel requesting the grant of a drainage easement
across the north twenty feet of the City's Water Plant No. 2
off Mayport Road
5. Committee Reports:
A. Commissioner William Gulliford with a committee report and
recommendation relative to vehicle towing in the City of
Atlantic Beach
B. Mayor William S. Howell with a committee report and recommen-
dation relative to telephone service to the new Public Safety
Building
6. Discussion of letter proposal from Smith and Gillespie Engineers
for emergency replacement of nine manholes in the City's sewer
collection system
7. Discussion by the City Commission on authorizing the City Manager
to conclude negotiations on three blocks of property in Section H
to be acquired for public use
8. City Commission action on a request of the Atlantic Beach Police
Department to utilize $901.00 of confiscated funds as provided for
under the Florida Contraband Act, and to authorize use of $1,057.33
of other unclaimed funds for use in the Department's Investigations
Fund
9. Commission discussion on a proposal from CDM, Inc. and property
owner, Mike Akel, for development of a unique subdivision in the
North Seminole Beach area which qualified as a Planned Unit Devel-
opment, except for total acreage
(Community Development Board approves concept)
10. Action on Exceptions:
A. Action by the City Commission on an application for exception
from Craig S. Fairbairn for a home occupation at 761 Cavalla
Road to be used for book work and phone in connection with a
house cleaning service, and setting of a public hearing for
September 14, 1987
(Community Development Board recommends approval)
B. Action on application for exception from William H. Dukes for
buying and selling of automobiles as a used car lot at 880
Mayport Road and setting of a public hearing for September 14,
1987
(Community Development Board recommends approval)
11. Action on Resolutions:
A. Introduction and adoption of Resolution No. 87-29 naming poll
workers for the upcoming City elections
B. Adoption of Resolution No. 87-30 authorizing the City Manager
to file for grant funds in connection with the City's on-going
recreation program
10. Action on Ordinances:
A. Introduction and first reading of Ordinance No. 40-87-15
authorizing the Mayor and Clerk to execute the necessary
documents for non-exclusive cable television franchise for
Continental Cablevision of Jacksonville, Inc. in the North
Seminole Beach area.
B. Introduction and first reading of Ordinance No. 90-87-123
proposing to rezone property of Thomas J. Bennett at 680
Sturdivant Avenue from RG2 to CG and setting of a public
hearing for September 14, 1987
11. Miscellaneous
12. Mayor to call on City Commissioners, City Attorney, City Manager
and City Clerk for reports and/or requests
Adjournment
MINUTES OF THE REGULAR MEETING OF THE ATLANTIC BEACH CITY V
COMMISSION HELD AT CITY HALL ON AUGUST 24,1987 AT 7:15 P.M. V V0 V
0
T T
PRESENT: William S. Howell, Mayor/Presiding Officer E E
Robert B. Cook, Sr. D D
Glenn A. Edwards
William I. Gulliford, Jr. , Commissioners M S
AND: Richard C. Fellows, City Manager O E
Claude L. Mullis, City Attorney T C
Adelaide R. Tucker, City Clerk 1 0 Y
NAME OF ONEN
COMMRS. N D S 0
The meeting was called to order by Mayor Howell. The invocation,offered
by Commissioner Cook was followed by the pledge to the flag.
1. Approval of the minutes of the regular meeting of August 10, 1987
Motion: Minutes of the regular Commission meeting of August 10,1987 Cook x
be approved as written. Edwards x x
Gulliford x x
No discussion before the vote. Motion carried unanimously. Morris x
Howellx
Mayor Howell announced the first Public Hearing on the 1987-88 Fiscal
Year Budget would be held on September 21, 1987 at a Special Meeting,
ad a final Public Hearing on the budget would be held on September 28,
987 at the regular Commission Meeting.
* * * * :: :: * * k k * * * * x * * .. * * k * *
2. Recognition of Visitors - None
3. Bid Openings:
A. Receipt of sealed bids for self-contained compactor dumpster for use
at Ragtime Restaurant
The following bids were received and opened:
1. BFI Waste Systems, Jacksonville $6,220.00 plus tax
2. Laidlaw Waste Systems, Inc. ,Jacksonville 6, 170.00 plus tax
Installation 350.00 plus tax
3. Ray Pace's Waste Equipment, Jacksonville 5,450.00 plus tax
Bid tabulation is attached to and made a part thereof.
Motion: Move to send all bids to Committee. Cook x
Edwards x x
Gulliford x
Io discussion before the vote. Motion carried unanimously. Mayor Morris x x
Howell appointed Commissioner Edwards to Chair the Committee and Howell x
appoint members to serve.
* * * * * * * :: * * ;: * * ;; :; * * ,. * ;:
PAGE TWO V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN
B. Receipt of sealed bids for installation of new water system in
Lake Elizabeth subdivision, Buccaneer Water and Sewer District
The following bids were received and opened:
1. Belloit Co. , Jacksonville $89,417.00
2. Chapman Construction, Jacksonville 107,150.00
3. Inman Associates, Jacksonville 148,745.00
4. A. J. Johns, Inc. , Jacksonville 146,975.00
5. MacDonald Construction Co. , Jacksonville 148,425.00
6. I. H. Smith & Co. , Jacksonville 107,580.72
7. Sun Construction, Mayo, Fl. 77,880.00
8. W.R. Townsend, Inc. , Jacksonville 122,069.00
9. Water & Sewer Utility Construction, Inc. Jax 117,500.00
Bid tabulation is attached hereto and made a part thereof.
* * * * * * * * * * * * * * * * * * * * * * * * *
Motion: Move to send bids to Committee. Cook x
Edwards x x
Gulliford x
No discussion before the vote. Motion carried unanimously. Mayor Morris x x
Howell appointed Commissioner Edwards to Chair the Committee and Howell x
ppoint members to serve.
* * * * * * * * * * * * * * * * * * * * * * * * *
4. Appearances:
A. Mr. John Landon to discuss zoning on Lot 37, North Atlantic
Beach, Unit 1
Mr. Landon told the Commission he resided in Clearwater, Fl. and was
not aware his property was rezoned to single family from multiple family
when annexed into the City of Atlantic Beach. Mayor Howell advised him
State Law provided that if the city was going to rezone 5% or more of
its land, all the city had to do was publish the necessary legal notices
in a newspaper of general circulation. Letters to property owners were
not required. The Mayor explained to Mr. Landon that he could, on the
oceanfront, build a primary residence and a garage apartment/secondary
residence and rent both, if he so desired. Mr. Landon will check with
the Building Department for details.
2. Mr. Frank Delaney to discuss with the City Commission litigation
involving attorneys fees.
Mr. Frank Delaney told the Commission he took objection to the suit
filed by the city in connection with his neighbor, Mr. Keith Kelly.
He appealed to the Commission to dismiss their suit for attorneys fees
and costs. He furnished background information with several exhibits
-elative to the recent court decision. Mr. Keith Biser, Peter Weincut,
Ars. Keith Kelly, and Bob Graham, neighbors and residents of The Bluffs
also appealed to the Commission to dismiss their suit. The court date
was set for September 4, 1987, at 9:20 a.m.
PAGE THREE V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN
• 4. Appearances - Delaney continued
Mr. Delaney explained that the members of the Association had passed a
Resolution supporting their actions on the original law suit, and what-
ever the costs were would be shared equally by all seventeen members. He
personally had invested $600.00 to date. The suit was filed due to the
fact they understood there was no place to appeal except the courts. The
seventeen members felt they should have been allowed to appeal to the
elected officials.
In response to Mr. Mullis's question, Mr. Delaney replied he did not
think he was a member of the Community Development Board at the time the
suit was filed. He was President of the North Selva Beaches Association
when he was asked to serve on the Community Development Board, and he Ye-
signed from the Association when he became a member of the Board.
Mr. Mullis asked Mr. Delaney if he had a conversation with Mr. Mike Akel
after the law suit was filed in an attempt to compromise and settle the
matter. Mr. Delaney responded in the affirmative and said Mr. Akel told
him he did not know anything about it. A man from Rochester, N.Y. was
handling the action as it was his application.
Commissioner Gulliford stated he had been very much opposed, since he
irst sat on the Commission, to the structure of The Board of Adjustment
hat answered to no one, members were not elected, and had the power
that Board had. He strongly opposed several actions the Board had taken.
He was told the Commission had no control over their actions because o=
the Florida Statutes and the structure of the Board.
A lengthy discussion followed concerning the appeal for dismissal. Fol-
lowing discussion, Commissioner Gulliford moved for the following:
Motion: Advise the City Attorney to withdraw his action to collect Cook x
attorney fees, if Mr. Kelly and the other members pay the Edwards x x
costs prior to September 4, 1987. Gulliford x x
Morris x
Following discussion, the question was called and the motion carried Howell x
unanimously.
* * * * * * * * * * * .. * * * * * * * * * * * * * * * .. * *
C. Mr. Steve Cissel requesting the grant of a drainage easement across
the north twenty feet of the City's Water Plant No. 2 off Mayport Road
Mr. Cissel told the Commission he planned to install a 30" culvert across
the north 20' of the property. He offered a set of drawings and informa-
tion prepared by his engineer, Doug Miller, also a survey.
Motion: Move to grant Mr. Steve Cissel a drainage easement across Cook x
the north 20' of the city's water plant no.2 off Mayport Edwards x x
Road. Gulliford x
No discussion before the vote. Motion carried unanimously. Morris x x
* * * * * * * * * * * ;: * * * * * * * ;: * * * * * * * * * Howell x
PAGE FOUR V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN
• 5. Committee Reports:
A. Commissioner William Gulliford with a committee report and recommenda-
tion relative to vehicle towing in the City of Atlantic Beach
Commissioner Gulliford reported the committee met on Monday, August 17,
1987 at 11:00 a.m. Following considerable discussion relative to the
pros and cons involved in the bidding out of all towing activities win-
in the City of Atlantic Beach, it was the consensus of the Committee
that it recommend to the Commission awarding the bid to Beach Body of
Jacksonville Beach in the amount of $14.99 per tow with a $3.00 per day
storage fee, all contingent upon a properly designed contract being pre-
pared by the City Attorney, and Beach Body entering into said contract
and furnishing the City the proper insurance and performance and payment
bonds. Commissioner Gulliford said they needed to closely monitor the
response from Beach Body. If Beach Body could not respond within a
specified time, the contract would read the city could call one of the
other companies qualified to do the city's towing.
Motion: Move to accept the recommendations of the Committee and Cook x
award a contract to Beach Body of Jacksonville Beach Edwards x x
in the amount of $14.99 per tow with a $3.00 per day Gulliford x x
storage fee, all contingent upon a properly designed Morris x
contract being prepared by the City Attorney, and Beach Howell x
Body entering into said contract and furnishing the city
the proper insurance and performance and payment bonds.
Following discussion, the question was called and the motion carried
unanimously.
* * * * * * * * * * * * * * * * * ;: * * * * * * * * * *
B. Mayor William S. Howell with a committee report and recommendation
relative to telephone service to the new Public Safety Department
Mayor Howell reported the Committee met on Monday, August 17, 1987 at
10:00 a.m. Following evaluation of the five lowest bidders, the Commitee
agreed to recommend to the Commission the bid of TelPlus for the Vodavi
system at $9,080. be accepted as the lowest and best bid.
Motion: Accept the report of the Committee and award a contract to Cook x
TelPlus for the Vodavi system at $9,080.00 as the lowest Edwards x x
and best bid meeting the specifications for telephone Gulliford x x
service to the new Public Safety Department. Morris x
Howell x
Following discussion, the question was called and the motion carried
unanimously.
* * * * * * * * * .* * * * * *
h. Discussion of letter proposal from Smith and Gillespie Engineers for
emergency replacement of nine manholes in the City's sewer collection
system.
PAGE FIVE V V
MINUTES NAME OF
AUGUST 24, 1987 COMMAS. MSYN
6. Smith and Gillespie proposal on manholes - continued
Mayor Howell noted the replacement of nine manholes in the city's
sewer collection system would eliminate the necessity of building
the force main on Seminole Rd. The estimated $40,000 for the force
main would go toward the estimated cost of $80,000 for the manholes.
Motion: Call for bids for emergency replacement of nine manholes Cook x
in the city's sewer collection system as recommended Edwards x x
by Smith and Gillespie Engineers. Gulliford x
Morris x x
No discussion before the vote. Motion carried unanimously. Howell x
* * * * * * * * * * * * ;: * * * * * * * * * * * * * * * * *
7. Discussion by the City Commission on authorizing the City Manager
to conclude negotiations on three blocks of property in Section H to be
acquired for public use
The City Manager reported they had received firm commitments from the
property owners for the purchases. He expressed the opinion, the city
would gain by the purchase even if we did not acquire additional land
as it would provide more buffering. In response to Mayor Howell's
question, Mr. Fellows said the asking price was $500.00 higher than
:he appraisal on one of the blocks.
Motion: Authorize the City Manager to purchase Block 90 Sec. H. Cook x
for $33,000. and Blocks 97 and 98 Sec. H. for $66,000. Edwards x x
subject to the sellers paying the usual and customary Gulliford x
closing costs (documentary stamps and title insurance Morris x x
and pro-rated taxes) Howell x
Following discussion, the question was called, and the motion carried
unanimously.
* * * * is * * * * is * * * is * * * * * * * * '* * * * * * * * *
8. City Commission action on a request of the Atlantic Beach Police
Department to utilize $901.00 of confiscated funds as provided for
under the Florida Contraband Act, and to authorize use of $1,057.33
of other unclaimed funds for use in the Dept. 's Investigations Fund
Motion: Approve the request of the Atlantic Beach Police Dept. Cook x x
to utilize $901.00 of confiscated funds, and authorize Edwards x
use of $1,057.33 of other unclaimed funds for use in Gulliford x x
the Department's Investigations Fund. Morris x
Howell x
No discussion before the vote. Motion carried unanimously.
* * * * * * * * * * * * ;: * * * * * * * * * * * * * * * * *
A. Commission discussion on a proposal from CDM. , Inc. and property
>wner, Mike Akel, for development of a unique subdivision in the
North Seminole Beach area which qualified as a Planned Unit Develop-
ment, except for total acreage
PAGE SIX V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN 9. Mike Akel - continued
Mr. Fellows reported the Community Development Board had considered
the proposal and approved the concept. Mr. Pete Dowling, representing
CDM Properties told the Commission CDM could build 28 multi-family
units on some of their property in the North Seminole Beach area that
was zoned RG-2. They wanted to down-zone the property and build 12
single family homes, which would be a reduction of approximately 57%
density of the property. The problem CDM had was the lots and the
street would have to be a smaller size than the normal subdivision.
Also, in order to qualify under a PUD, seven acres would be needed,
and they had 1.93 acres. Mr.Dowling added that most of the adjoining
property owners were in favor of the proposed concept for 12 single
family homes. The streets would be private, not dedicated to the city.
Mayor Howell objected to reducing a PUD from 7 acres.
The suggestion was made to create a special zoning classification
limited to oceanfront property. Commissioner Cook suggested a new zoning
classification of ILD (Innovative Land Development) .
Mr. Mullis told the Commission he had researched, at length, a method
of approach for a possible new zoning. Under the '86 amendments to the
Growth Management Act, it did provide that particular law shall be con-
;trued to encourage the use of innovative land development methods. Prior
:o that time,the courts were very quick to declare contract zoning illegal.
If some development regulation applicable only to the property in ques=ion
due to the uniqueness of it and a description of it, etc. with support-
able reasons why that parcel of land was being treated differently, and
do it by Ordinance, he thought it probably could be used. Following dis-
cussion, Commissioner Gulliford moved for the following motion:
Motion: Direct the City Attorney to pursue this direction and come Cook x x
back and meet with Messrs. Dowling and Acorn, and come back Edwards x
with a suggested means of pursuing. Gulliford x x
Morris x
No discussion before the vote. Motion carried unanimously. Howell x
* * * * .. * * * * * * * * * * * * * * * * * * * * * .. * * * * *
10. Action on Exceptions:
A. Action by the City Commission on an application for exception from
Craig S. Fairbairn for a home occupation at 761 Cavalla Rd. to be used
for book work and phone in connection with a house cleaning service.
Mayor Howell acknowledged receipt of an application for exception from
Craig S. Fairbairn for a home occupation. The Community Development
Board considered the application and recommended approval. He set a
Public Hearing for September 14, 1987.
B. Action on application for exception from William H. Dukes for buying
and selling of automobiles as a used car lot at 880 Mayport Road.
Mayor Howell acknowledged receipt of Mr. Dukes application for a home
occupation and set a Public Hearing for September 14, 1987. The Community
Development Bd. considered the application and recoumiended approval.
PAGE SEVEN V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN
• 11. Action on Resolutions:
A. Resolution No. 87-29
Mayor Howell presented in full, in writing Resolution No. 87-29, a Reso-
lution naming poll workers for the upcoming city elections.
Motion: Passage of Resolution No. 87-29. Cook x
Copy of said Resolution attached hereto and made a part Edwards x x
thereof. Gulliford x
No discussion before the vote. Motion carried unanimously. Morris x x
* * * * * * * * * * * * * * ;: * * * * * * * * * * * Howell x
B. Resolution No. 87-30
Mayor Howell presented in full, in writing Resolution No. 87-30, a Reso-
lution authorizing the City Manager to file for grant funds in connect-
ion with the city's on-going recreation program.
Motion: Passage of Resolution No. 87-30. Cook x x
Copy of said Resolution attached hereto and made a part Edwards x x
thereof. Gulliford x
No discussion before the vote. Motion carried unanimously. Morris x
* * * * * * * * * * * * * * * * ,. >c * * * * * Howell x
.2. Action on Ordinances:
A. Ordinance No. 40-87-15 - First Reading
AN ORDINANCE PROVIDING FOR THE GRANTING OF A NONEXCLUSIVE FRANCHISE TO
OPERATE A CABLE TELEVISION SYSTEM IN THE NORTH SEMINOLE BEACH AREA OF
THE CITY OF ATLANTIC BEACH; SETTING FORTH THE CONDITIONS ACCOMPANYING
THE GRANTING OF FRANCHISE; PROVIDING FOR CITY REGULATION OF THE CABLE
TELEVISION SYSTEM; PRESCRIBING PENALTIES FOR VIOLATIONS OF THE FRANCHISE
PROVISION; AND ESTABLISHING GENERAL RULES FOR THE APPLICATION PROCEDURES
REQUIRED BEFORE GRANTING A FRANCHISE; PROVIDING AN EFFECTIVE DATE.
Mayor Howell presented in full, in writing, Ordinance No. 40-87-15 on
first reading.
Motion: Passage of Ordinance No. 40-87-15 on first reading. Cook x
Edwards x x
Following discussion, the question was called and the motion carried Gulliford x
unanimously. Mayor Howell set the Public Hearing for September 14, Morris x x
1987. Howell x
* * * * * * * * * * * * * * * * ;: * * * * * * * * * * * *
B. Ordinance No. 90-87-123- First Reading
AN ORDINANCE AMENDING THE ORDINANCE CODE OF THE CITY OF ATLANTIC BEACH,
FLORIDA; AMENDING THE LAND DEVELOPMENT CODE AND THE OFFICIAL ZONING
4AP OF THE CITY OF ATLANTIC BEACH, FLORIDA, TO REZONE LAND OWNED BY
THOMAS J. BENNETT AND DESCRIBED AS LOT 772, EXCEPT THE WESTERLY 3 FEET
THEREOF, SALTAIR SECTION NO. 1 HERETO FROM RG-2 RESIDENTIAL GENERAL
TO CG COMMERCIAL GENERAL AND PROVIDING AN EFFECTIVE DATE.
PAGE EIGHT V V
MINUTES NAME OF
AUGUST 24, 1987 COMMRS. MSYN
12. Action on Ordinances - continued - B.
Mayor Howell presented in full, in writing, Ordinance No. 90-87-123
on first reading.
Motion: Passage of Ordinance No. 90-87-123 on first reading. Cook x
Edwards x x
Gulliford x x
Following discussion, the question was called and the motion carried Morris x
unanimously. Mayor Howell set the Public Hearing for September 14,1987. Howell x
* * * * * * * * * * * * * * * * ;: * * * * * * * * * * * * *
Miscellaneous
Mayor Howell asked the Commission to accept the drainage easement on tae
Presbyterian Church subject to the easement being properly completed. The
document had not been notarized.
Motion: Accept the drainage and utility easements on Lots 727 and Cook x
736, Saltair Subdivision from the Community Presbyterian Edwards x
Church, subject to the document being properly notarized. Gulliford x x
Morris x x
No discussion before the vote. Motion carried unanimously. Howell x
* ;; * * * * * * * * * * * * * * * * * * * * * * ;: * * * * *
Mayor Howell reminded the Commission a Budget Workshop Meeting would
followed immediately after the Commission meeting adjourned.
There being no other business to come before the Commission, the Mayor
declared the meeting adjourned at 9:10 p.m.
A.o• A // ag/
Rill .m 'owell
Mayor/Presiding Officer
ATTEST:
a C (dC6-'
Adelaide R. Tucker
City Clerk
' Z Dat,' of
°o CITY OF
r1 FOR WATER DISTRIBUTION SYSTEM
ti ATLANTIC BEACH
IMPROVEMENTS - LAKE ELIZABETH k- Departure
-
AREA Q FLORIDA
BELLOIT CO. 'CHAPMAN CONSTRUCTIONINMAN ASSOCIATES A.J. JOHNS, INC. f
MACDONALD
JACKSONVILLE JACKSONVILLE JACKSONVILLE JACKSONVILLE RUCTION
BID NUMBER 8687- 10
JACKSONVII
. a
1
ITS Brief Description Unit Price Ext. PricCUnit Pr1Ce,Dct. Price it pricx4Ext. Price Unit PriceExt. Pri pri._ ,
i
FURNISHING AND INSTALLATION
_. -.
OF WATER DISTRIBUTION SYSTEM
--4
IMPROVEMENTS, LAKE ELIZABETH
AREA 89,417 107, 150 148, 745 146,975
A . •
PERFORMANCE BOND 1 ,395 k -0- 750 1 ,300
PAYMENT BOND -0- -0- 750 -0-
BID BOND OK OK OK OK
[ 1 4 r
' . -
1
4 - , aw
l _ -
I
F—
Comments-
Amount Budgeted
4061 -
1111 ..
II •••••••1+•+rm..............
Dat,. of
re
CITY OF
FOR WATER DISTRIBUTION SYSTEM ATLANTIC BEACH
IMPROVEMENTS - LAKE ELIZABETH FLORIDA I)ehartmc
AREA
Sun Construction W.R. Townsend, Inc. Water & Sewer Utilit'
BID NUMBER 8687- 10 Mayo, FL Jacksonville Construction, Inc.
Jacksonville
1
ITF''I Brief Description Unit -Price Ect. Pric_ Unit PriceEXt. Price Unit PrIC Ext. Price Unit Pricer ct. .Pric 't Pric4
FURNISHING AND INSTALLATION
OF WATER DISTRIBUTION SYSTEM
IMPROVEMENTS, LAKE ELIZABETH * `
AREA 77,880 122.069 117,500
PERFORMANCE BOND 486. 75 1 ,831 .00 -0-
PAYMENT BOND 486.75 1 ,831 .00 -0-
4
BID BOND OK OK OK
a 4
C.CrrTnents:
Amount Budgeted
4061
Dat, of
CITY OF
FOR SELF-CONTAINED TRASH ATLANTIC BEACH
rl
COMPACTOR FLORIDA I)e}�artmc
W
s
BFI WASTE SYSTEMS LAIDLAW WASTE RAY PACE'S WASTE
JACKSONVILLE SYSTEMS, INC. EQUIPMENT
BTI) NUMBER 8687-9 JACKSONVILLE
JACKSONVILLE
1
rrEm Brief Description Unit Price Ext. PriclJnit PriceExt. Pricejlnit Pri cmeiPoct. Price Unit PricekXt. Priceit Pri.-'
SELF-CONTAINED TRASH
. 4 «
COMPACTOR WITH ODOR
SUPPRESSOR 6,220 6, 170 5,450
INSTALLATION 350
4 , Al •
1
t 4
4
IV 4
4
-- -
• s
Comments:
Amount Budgeted
/1"""-----"'"
—"'"
40' Dat,. of
CITY OF
FOR WATER DISTRIBUTION SYSTEM ATLANTIC BEACH
IMPROVEMENTS - LAKE ELIZABETH FLORIDA Departmc
AREA
BELLOIT CO. CHAPMAN CONSTRUCTION INMAN ASSOCIATES A.J. JOHNS, INC. MACDONALD
JACKSONVILLE JACKSONVILLE JACKSONVILLE JACKSONVILLE RUCTION
BID NUMBER 8687- 10
JACKSONVE
-. I,f'FA1 1
Brief Description Unit Price Exct. PricCUnit Price. Pricepnit PI'iozEkt. Price Unit Price£xt. Price
<lctit Pricet
FURNISHING AND INSTALLATION _ , 4
4
4
OF WATER DISTRIBUTION SYSTEM
IMPROVEMENTS, LAKE ELIZABETH
AREA 89,417 107, 150 148, 745 146,975
PERFORMANCE BOND 1 ,395 -0- 750 i 1 ,300
PAYMENT BOND -0- -°- /50 -0-
•
BID BOND OK OK OK OK
4
4 � �
S i �
Comments:
Amount Budgeted
4001
Dat' of
CITY OF
1.
FOR WATER DISTRIBUTION SYSTEM ATLANTIC BEACH
IMPROVEMENTS - LAKE ELIZABETH FLORIDA Dcpartmc
AREA
Sun Construction W.R. Townsend, Inc. Water & Sewer Utilitz
BTU NUMBER 8687- 10 Mayo, FL Jacksonville Construction, Inc.
Jacksonville
1
ITS+ , Brief Description Unit -Price bct. Pricf1Jnit Price•Ext. Price nit Price. Price Unit Pric=a• . PricEvnit Pricet
FURNISHING AND INSTALLATION
OF WATER DISTRIBUTION SYSTEM
IMPROVEMENTS, LAKE ELIZABETH
J AREA 77,880 122.069 117,500
PERFORMANCE BOND 486. 75 1 ,831 .00 U_
PAYMENT BOND 486. 75 1 ,831 .00 -0-
'
BID BOND OK OK OK
t
.-cam. - - - , I
0
- �� 4 - A
Comments.
: - —
Amount Budgeted
4061
-- ___
CITY OF ATLANTIC BEACH, FLORIDA
Transcript of City Commission Meeting
August 24, 1987
EXCERPT
RED STAMP TNTACATEA
CERTIFIED
COPY
•
STATEWIDE REPORTING SERVICE
606 BLACKSTONE BUILDING
JACKSONVILLE, FLORIDA 32202
(904) 353-7706 249-9952
EXPERTS IN MEDICAL, TECHNICAL 8 EXPEDITED TRANSCRIPTS
2
1 APPEARANCES
2
3
4 WILLIAM S . HOWELL, Mayor-Commissioner
5 ROBERT B. COOK, SR. , Commissioner
6 WILLIAM I . GULLIFORD , JR. , Commissioner
7 JOHN W . MORRIS , JR. , Commissioner
8 GLENN A. EDWARDS , Commissioner
9 RICHARD C . FELLOWS , City Manager
10 ADELAIDE TUCKER, City Clerk
11
12 Gayle J . Featheringill , CVR-CM, Certified Verbatim
13 Reporter
14
15 Agenda Item B: Mr . Frank Delaney to discuss with the
16 City Commission litigation involving attorney ' s fees .
17 - - -
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3
I PROCEEDINGS
2 7 : 15 p.m.
3 I . . .
4 MAYOR HOWELL: Mr . Delaney.
5 MR. DELANEY: Yes , sir .
6I MAYOR HOWELL: You have the floor , sir .
7 MR. DELANEY: I ' m sorry . I got here late , so
8 I will hand these out now . (Mr . Delaney hands book-
9 � lets to commissioners . )
10 Gentlemen , the reason I am here is that I
tt took objection to the suit that was filed by the City
12 in connection with my neighbor , Keith Kelly , and I
13 thought that I would ask Mr . Howell if he would dis-
14 miss it , and he advised that the only people that had
15 jurisdiction and authority to do that was the City
16 Council , so I came here and asked for your help in
17 this matter .
18 My first letter ' s one that was a result of a
19 conversation with the Mayor and Mr . Fellows two weeks
20 ago , and basically it outlined the circumstances for
21 our objecting to a zoning variance ordinance that was
22 passed by the Board of Adjustments on the last day of
23 action .
24 We wanted an appeal , and we asked for an
25 appeal , and we were directed to the Circuit Court
4
1 rather than any other recourse or redress . And that ' s
2 basically number one .
3 Number two is the letter from Mr . Howell to
4 me , and it refers to the application that Mr . Akel
5 filed in connection with his application for the
6 variance .
7 The application was improper ; it was wrong
8 all the way around . And I think the Mayor acknowl-
9 edged this , and stated that anyone that made that many
10 mistakes should not be working for the City of
11 Atlantic Beach anymore .
12 MAYOR HOWELL: Let me stop you right there .
13 Let ' s not take things out of context . Let ' s read the
14 whole thing .
15 You advised me of the number of mistakes
16 made .
17 MR. DELANEY: That ' s true .
18 MAYOR HOWELL: And then I said , if anyone
19 made that number of mistakes , they should not be work-
20 ing for the City .
21 MR . DELANEY: That ' s correct .
22 MAYOR HOWELL: Don ' t say that I am criticiz-
23 ing the application . You informed me as to the mis-
24 takes in the application , I didn ' t inform you .
25 MR. DELANEY: We went through the application
5
together , analyzed it ; and , at that particular point ,
2 we both agreed that the application was improper .
3 And your remark was not the same as I
411 interpreted it , but your remark was , in writing here ,
5 that it was not proper , and whoever did it should not
6 be working any more for the City .
7 But , by the same token, with this application
8 as it was , the City was and is determined to defend it
9 to the point that they want to sue somebody that
10 objected to it and brought suit against it .
11 Then we go back to the Board of Adjustment ,
12 which is no longer in action , no longer available to
13 anybody . They acted on it , and they left us no
14 recourse whatsoever , and we researched it with you , we
15 researched it with Mr . Mullis and Mr . Fellows , asked
16 for help, asked to change the ruling , and so that we
17 could bring it before the Board , and we were denied
18 . that opportunity .
19 We were directed to, by everyone , to the
20 Circuit Court .
21 Number three , and that is a letter to Mr .
22 Howell from Keith outlining the project , how it
23 affected the community of the beaches , how it affected
24 our community, the Bluffs , and each one , as it
25 devalued the property, and its whole concept .
6
The Bluffs condominium is fifty-two percent
2 green area . This area has -- I came up with basically
3 none . But this is --
4 CITY ATTORNEY MULLIS : Mr . Delaney, I hate to
S interrupt you , because I know you are getting to the
6 point involved , but , as I understood from the agenda ,
7 you were here to complain about the City of Atlantic
8 Beach suing you for attorney ' s fees and costs , or
9 something of that kind .
10 What you are saying , as I understand it , has
11 already been decided by the Circuit Court , as far as
12 the legality of the proceedings ; isn ' t that correct?
13 MR. DELANEY: Yes , it has been . Yeah , that ' s
14 fine . Basically, in other words , when it came before
15 the other Board , the people that objected to it ,
16 ridiculed it , and basically it was put down .
17 Number four , and each time now Mr . Howell ,
18 Mr . Kelly sent you these letters , you and I discussed
19 them, and he appealed in every one of these for your
20 help: Please acknowledge this letter , please tell us
21 what we can do or how you can help us in rescinding
22 this decision .
23 In each case , he wasn ' t being smart about
24 anything , he wasn ' t pushing anybody, he was asking for
25 your help, and the end was he was told we could go to
7
'-1
Circuit Court because there was no other place to go
2 in the City of Jacksonville .
3 MAYOR HOWELL: According to the Charter and
4II state law .
5 MR. DELANEY: That ' s exactly right . In otner
6 words , his constitutional rights , I don ' t know where
7 they stand , but he nad no place to go other than the
8 court . He had no other appeal .
9 MAYOR HOWELL: That is my understanding , yes ,
101 sir , and I believe that is what I told you .
MR. DELANEY: On number four , these are
12 facts , and they criticize Nadine Ryder , criticized the
13 Board of Adjustments for passing the ordinance or
14 variance without due process on an improper applica-
15 tion for a variance request .
16 Number six -- we are going back -- is , Mrs .
17 Kelly called a member of the Board , asked ner for the
18 help, and she told her what to do . And she said they
19 can ' t do anything but go to court , and now we are
20 being directed to the Circuit Court by everybody
21 involved in this , by every member of the City Council .
22 So we filed our recourse . About a month ago,
23 there is a requisition , a request for a site variance
24 before the Community Development Board . It was
25 approved for a carport . It was passed by the --
8
1 unanimously , and Mr . McDowell put a rider on there .
2 He asked that the motion be amended to
3 require a letter of approval from the property owner
4 to the south , and I thought that was a good idea . It
5 showed concern .
6 Article -- Section 8 here , Page 8 -- it
7 should be Section 8 , I think , is a petition from, I
8 think , about thirty members of the community that live
9 next to or close to this development .
10 They all ask that it be reviewed and they
have an opportunity to discuss it with the City
12 Council or someone there . This went unanswered .
13 And a guy that wants to put a house or a car-
14 port next to his house can do anything he wants .
15 In Mr . -- in the petition from the City,
16 Article 2 says the petition was improper propose
17 (sic ) , number one , for harass -- this is what Mr .
18 Mullis says now -- we ' re harassing him, causing
19 unnecessary delay , and for economical advantages .
20 I think the thing is silly. I think the only
21 place we could have gone was the Circuit Court .
22 That ' s what the law said , that ' s what the people say,
23 and that ' s what everybody here said .
24 Now , if we went to the only court that we
25 could , then why are you suing us? If we went to the
9
Supreme Court , that would be different , but we ' re
2 standing right here in the City of Atlantic Beach .
3 You dissolved the Board because it had no
4 appeal , and I believe you came close to being
5 instructed by the State to do this . Am I right , Mr .
6 Mullis?
7 CITY ATTORNEY MULLIS : You are not right .
8 MR. DELANEY: Okay . You dissolved the Board .
9
CITY ATTORNEY MULLIS : We dissolved the Board
101 of our own volition .
MR. DELANEY: And created another one . All
12 " right . I think the suit is absolutely horrendous . I
13 think we were the victims , and now you want us to pay
14 for it . That ' s what I have to say .
15 MAYOR HOWELL: Mr . Delaney, let me just ask
16 one question so I can get it clarified in my mind .
17 When the suit was filed , to the best of my recollec-
18 tion it was filed by Keith Kelly individually .
19 MR. DELANEY: That is right .
20 MAYOR HOWELL: May I ask you , and for my
21 information and for the information for the record,
22 what is your interest in this?
23 MR. DELANEY: Okay . My interest is , I live
24 at the Bluffs , I ' m a homeowner there , and this project
25 going next to us that Mike Akel ' s going to build , I
10
know -- I don ' t think , I know -- it would have
I I
2 affected the value of my property .
3 My interest is the same as everybody else in
4 that community. At the time , we objected to it ; we
5 object to the way it was given to him; and , we
6 objected to the fact that it was going to affect our
7 health , welfare , and dollar value of the property.
8 So what we did was , by the time we got
9 finished writing these letters to you and seeking an
10 appeal , we went to an attorney . We went to five
attorneys , but we finally found one that didn ' t want
12 $5 , 000 to defend us .
13 And , if we went for a class action at that
14 point , we would have lost the time to file any type of
15 complaint whatsoever , or appeal .
16 So the class action was dropped because of
17 the time element .
18 CITY ATTORNEY MULLIS : How are you involved
19 in the question of recovering attorney ' s fees and
20 court costs to the town? How are you involved?
21 MR. DELANEY: How am I --
22 CITY ATTORNEY MULLIS : How are you involved?
23 MR. DELANEY: Because I will be one of the
24 seventeen people that will have to pay it . What we
25 did was , we passed a resolution at the Bluffs saying
11
that we supported this action , and that whatever the
2 costs will be will be shared equally by everybody.
3 Keith Kelly has put his time in . I have $650
4 right now spent in this action .
5 CITY ATTORNEY MULLIS: You personally?
6 MR. DELANEY: I personally have $650 .
7 CITY ATTORNEY MULLIS : At the time this suit
8 was filed , were you a member of the Community Develop-
9 ment Board?
101 MR. DELANEY: No .
11 CITY ATTORNEY MULLIS : Were you a member of
121 the Community Development Board when the suit was
13 actually filed in the Circuit Court?
14 MR. DELANEY: I don ' t believe so . I ' m not
15 sure what the timing was . At the time the suit was
16 brought about , basically I was president of the North
17 Duval Beaches Association .
18 When -- I resigned from that when I became on
19 the Board . So what I -- I ' ll put it this way: I did
20 sign a statement the other day, but this is for people
21 that live within 300 feet .
22 And you asked people within 300 feet , do they
23 object to this or they accept it . I said I objected
to it . This is the one comingupwith Mike Akel
24
25 tonight . And it was originally --
12
1 MAYOR HOWELL: That ' s rezoning .
2 MR. DELANEY: That ' s rezoning .
3 MAYOR HOWELL: That ' s rezoning .
4 MR. DELANEY: Now , this originally came up,
5 they presented us with a plan in this Community
6 Development Board showing a 20-foot yard setback on
7 the property .
8 So I looked at it , and I discussed it with
9 Mr . Dowling . And I said , "This is fine . We accept
10 this . " And everybody in the community accepted it on
11 both sides .
12 He consulted with, he said in his letter now,
13 and it ' s in there , he consulted with you two gentle-
14 men . He came back with a plan the next time the hear-
15 ing came up and had a 10-foot setback on it .
16 And immediately, everybody in the neighbor-
17 hood that was available and not on vacation --
1
18 CITY ATTORNEY MULLIS : Are you talking about
19 when the City was trying to collect attorney ' s fees?
20 MR. DELANEY: It has nothing to do with it .
21 It ' s similar to a point , that we object to things and
22 we accept things .
23 CITY ATTORNEY MULLIS : The point I am trying
24 to make is that --
25 MR. DELANEY: Do you honestly feel you are
13
entitled to a fee?
2 CITY ATTORNEY MULLIS: Do you?
3 MR. DELANEY: No, I do not , absolutely not .
4 And the reason I don ' t , Mr . Mullis , is because we had
5 no place to go .
6 If we had this Board to come to first and we
7 had disagreed with this Board , then we may be wrong ,
8 but we did not have this Board to appeal. to . We had
9 nobody to appeal to .
10 CITY ATTORNEY MULLIS : Well , what did the
11 Circuit Court do with your lawsuit?
12 MR. DELANEY: I have not read it , to tell you
13 the truth, but I do know , and there was one thing --
14 CITY ATTORNEY MULLIS : You were not furnished
15 by me , as a member of the Community Development Board ,
16 a copy of the court decision and a copy of the memo-
17 randums of law that were filed in that case?
18 MR. DELANEY: No . You gave us a letter say-
19 ing that you had won the decision , or something of
20 this type , or defeated it , and I do not have in fact
21 the complete answer or whatever , reply, the decision
22 the judge made .
23 I do know , and I had something when I talked
24 to the attorney , that he did say that this should have
25 been settled at Atlantic Beach , and that this court ,
14
1 which was the Circuit Court , is not a review board for
2 real estate decisions , or something of this type .
3 And you know what he said , you proLably
4 better than I do , because , I mentioned it to you the
5 other night again when we discussed it .
6 CITY ATTORNEY MULLIS : In other words , if the
7 City of Atlantic Beach incurs substantial court costs
8 and costs by one of its residents , and it costs the
9 town money, and the Circuit Court says that there is
10 no validity to this lawsuit , then you do not feel
11 that , under the laws of Florida , that the City of
12 Atlantic Beach should be reimbursed for its fees that
13 it paid out at the benefit of the rest of the resi-
14 dents and taxpayers?
15 MR. DELANEY: I believe the suit was totally
16 justifiable . I believe that we had a legitimate com-
17 plaint . I feel that it never should have got as far
18 as it did with the application being improper .
19 I feel that , if we can sit down and develop a
20 new zoning code for a contractor coming in here to
21 develop a piece of land , then I feel that we can take
22 a group of citizens and make new rules for them or
23 help them out .
24 You got Mike Akel . Akel ' s in here tonight .
25 You ' re going to rezone the whole damn city for him,
15
and we didn ' t get an opportunity to come here --
2 CITY ATTORNEY MULLIS : After this lawsuit was
3 filed -- let me just ask you another question -- did
4 you have any conversation with Mr . Akel in an attempt
5 to compromise and settle this matter?
6 MR. DELANEY: Yes .
7 CITY ATTORNEY MULLIS: What was that
8 conversation?
9 MR. DELANEY: No . Wait a minute now .
10 Settled .
11 CITY ATTORNEY MULLIS : Did you discuss the
12 matter of disposing of it?
13 MR. DELANEY: Yes , I did , at one point .
14 CITY ATTORNEY MULLIS: After the lawsuit was
15 filed?
16 MR. DELANEY: Yes , I did .
17 CITY ATTORNEY MULLIS: What was that
18 discussion?
19 MR. DELANEY: I ' m not toally in -- it was a
20 very short one . As a matter of fact , Mike Akel , I
21 discussed it with him , and he denied any knowledge of
22 it , and denied any connection with that property, to
23 my best recollection .
24 He said , "Frank , I don ' t know anything about
25 it . " And he said the fellow in Rochester is the
16
fellow that handles it . That ' s basically what he
2 said . He said it was not his lawsuit , that the man in
3 Rochester , New York was the man that was defending the
4 action; it was his application .
5 CITY ATTORNEY MULLIS: You made no direct
6 conversation with Mr . Akel about the possibility of
settling the matter?
7
8 MR. DELANEY: My opening conversation was
q about this particular matter . Mike said that it was
not his problem , that it was the developer ' s problem,
and that it was his application . That ' s about as
12 close as I can come to that .
13 MAYOR HOWELL: Yes , sir?
14 COMMISSIONER GULLIFORD: I have got a couple
15 of questions . In recollecting , it seems to me that
16 there were several things that passed the old Board of
17 Adjustment that I was opposed to , and I think , as I
18 recall , I asked your opinion on that , and you indi-
19 cated that , according to statute and the structure of
20 that Board of Adjustment , we had no control over the
21 actions that they took .
22 CITY ATTORNEY MULLIS: That is correct .
23 Their act was final . That ' s the reason he was told
24 the only recourse he had was to go to Circuit Court .
25 COMMISSIONER GULLIFORD: Exactly.
17
CITY ATTORNEY MULLIS : Because that is what
2 the law says .
3 COMMISSIONER GULLIFORD: Exactly . And there
4 I were other instances that came up while I ' ve been on
5 the Commission and I ' ve been opposed to those things
6 that they did , but we had no control over it because
7 of the structure of the organization .
8 MR. DELANEY: Is that denying us due process?
9 COMMISSIONER GULLIFORD: Well , I --
10 MR. DELANEY: It denies us due process with
11 the City of Atlantic Beach .
12I COMMISSIONER GULLIFORD: Well , that may well
13 be , but we have to -- and I don ' t disagree with you,
14 because I have felt strongly about the way that was
15 structured ever since I first came in contact with it .
16 I agree .
17 But the unfortunate part is , or maybe the
18 fortunate part is , we have got to play by the rules .
19 Sometimes we don ' t like the rules , but we play by the
20 rules .
21 Then the second part of that question is ,
22 then you were thrown into a situation , being the City
23 Attorney, representing the City, that you had to
24 represent a Board of the City, namely the Board of
25 Adjustment , correct?
18
1 , CITY ATTORNEY MULLIS: Correct .
2 COMMISSIONER GULLIFORD: And that ' s how you
3 got involved in it?
4 CITY ATTORNEY MULLIS : That ' s correct .
5 COMMISSIONER GULLIFORD: You were charged , by
6 being the City Attorney, to do your very best to
7 represent the City, even though we all might person-
8 ally .,e opposed to whatever position that Board took ;
9 but , because we had no control over the outcome of
10 ' their decision , we had to live with the rules and the
11 way it was done , correct?
12 CITY ATTORNEY MULLIS : That is correct .
13 MR. DELANEY: Also --
14 COMMISSIONER GULLIFORD: I just wanted to set
15 the mood so that everybody will understand that maybe
16 we don ' t necessarily agree with everything that hap-
17 pens , but sometimes our hands are bound by what we can
18 and cannot do .
19 MR. DELANEY: I just want to simply say that
20 all three of you gentlemen advised me , suggested or
21 told me that the Circuit Court was the only place we
22 could go .
23 At no point did any of you say, "Frank , or
24 Keith , if you lose , you better do this under duress ,
25 because we ' re going to turn around and sue you . "
19
CITY ATTORNEY MULLIS: You don ' t think the
2 loser in a lawsuit should pay the other side ' s
3 attorney ' s fees?
4 MR. DELANEY: Not when -- it ' s got to be good
5 for your business , I ' ll tell you that much .
6 CITY ATTORNEY MULLIS : Let me just ask you
7 another question .
8 UNIDENTIFIED SPEAKER: Only when it ' s
9 frivolous . Only when it ' s frivolous . This wasn ' t
10 frivolous .
CITY ATTORNEY MULLIS : Weil , you better look
12 at the statute , which was called to the attention of
13 everyoody involved , and was called to the court ' s
14 attention , that in 1985 there was an amemdment put on
15 the Growtn Management Statute , under which we were
16 proceeding , that says also that anyone involved in a
17 lawsuit or rezoning matter under the provision of that
18 statute that has been involved with any idea of
19 private gain shall also be assessed attorney ' s fees
20 and court costs .
21 MR. DELANEY: Mr . Mullis --
22 MRS . KELLY: Where was his private gain?
23 MR. DELANEY: -- is protecting their
24 homestead private gain?
25 UNIDENTIFIED SPEAKER: In what way do I gain
20
1 from protecting my own property? I 'm trying to pre-
2 serve the value of it .
3 CITY ATTORNEY MULLIS : Do you feel that the
4 taxpayers of the City of Atlantic Beach , including
5 yourself --
6 MRS . KELLY: We are the taxpayers .
7 CITY ATTORNEY MULLIS: -- the fees that were
8 paid to the attorney and the court costs involved in
9 this case , that the amount that the City has expended
10 and the amount that , up to and including the lawsuit ,
11 totally in favor of every action that the City took ,
12 and now that a motion for assessing costs and attor-
13 ney' s fees has been filed , that you -- are you con-
14 sidering yourself as a plaintiff in this case?
15 MR. DELANEY: Mr . Mullis --
16 CITY ATTORNEY MULLIS : Let me just ask you
17 that .
18 MR. DELANEY: Yes .
19 CITY ATTORNEY MULLIS: Would you be willing
20 to compromise and reimburse the City of Atlantic Beach
21 for what it paid out?
22 MR. DELANEY: Mr . Mullis , you did not have to
23 spend this money . You created a Board --
24 CITY ATTORNEY MULLIS : Oh, you want me to
25 take a dive?
21
j MR. DELANEY: No -- that forced us to create
2 this expense . This expense was created by the City of
3 Atlantic Beach forcing us -- we didn ' t create this
Oil situation . You created this situation .
5 CITY ATTORNEY MULLIS : The City should not be
6 reimbursed for the costs that it expended in --
7 MR. DELANEY: Not at our expense , and not at
8 any taxpayer ' s expense , that has no place other to go
9 within the City.
10 COMMISSIONER GULLIFORD: I don ' t think that I
got my point across , Mr . Delaney. A minute ago , you
12 said , "You created this Board, " and I assume that you
13 are saying plural there , meaning "you , " Atlantic
14 Beach , because I know Claude Mullis didn ' t create the
15 Board.
16 CITY ATTORNEY MULLIS : Exactly .
17 COMMISSIONER GULLIFORD: The point that I am
18 trying to make , or tried to make earlier , was , we may
19 have created the Board by charter , but we are bound by
20 statute as to what we can and cannot do .
21 Now , also , going back earlier on what you
22 said , I think I got the drift that you stated that you
23 spoke to each commissioner , and they said -- directed
24 you to the Circuit Court .
25 Let me assure you, I was carboned on some
22
1 things , but I was never contacted by you or anyone
2 else relative to that . So I want to set that record
3 straight .
4 MR. DELANEY: I never talked to the commis-
51 sioners . I talked to Mr . Fellows , I talked to Mr .
6 Howell , and I talked to Mr . Mullis . And neither of
7 these three gentlemen advised me that there would be
8 any recourse whatsoever .
9 When they told me I had to sue , they said ,
�o "Frank , the only place you can go is Circuit Court . "
They didn ' t say, "Now , be careful , because , if you sue
12 us , we ' re going to come back and we ' re going to get
13 damages from you . "
14 CITY ATTORNEY MULLIS : Let me just ask you
15 one more question .
16 MR. DELANEY: Yes , sir .
17 CITY ATTORNEY MULLIS : Did you , after the
18 lawsuit was filed , and after you became a member of
19 the Community Development Board --
20 MR. DELANEY: Yes , sir .
21 CITY ATTORNEY MULLIS: -- did you ever advise
22 the City Commission individually, collectively or any
23 other officer or employee with the City of Atlantic
24 Beach , that you were interested in this litigation?
25 MR. DELANEY: No . Because it would have been
23
• 1 a conflict of interest .
2 CITY ATTORNEY MULLIS : Did you advise them --
3 MR. DELANEY: I just --
4 I
-41 MR. MIZER: My name is Keith Mizer , and I am
5 a citizen here and a member of the community that Mr .
6 Delaney also lives in --
7 MAYOR HOWELL: Yes , sir .
8 MR. MIZER: -- the Bluffs area , and my name
9 is one of those names on the petition .
10 MAYOR HOWELL: Yes , sir .
11 MR. MIZER: And the petition was filed
121' because certain procedures which are outlined in the
13 zoning regulations were clearly not followed .
14 It was admitted in a lot of different places
15 that they weren ' t filed. Requests were made , through
16 Mr . Kelly and through Mr . Delaney, as to what is the
17 proper procedure .
18 Traditionally, jurisprudence and fair play in
19 this country requires that there at least is some
20 place for people to go when they feel that they have
21 been wronged by what has been done .
22 Now , clearly, the procedures were not
23 followed; but , instead -- and I can , just two
24 instances , one of the things , notice is supposed to be
25 given both , you know, by direction to the people
24
1 living within 300 feet , and also notice is posted.
2 Neither of those things were done .
3 Other things were supposed to be submitted
d with the application that weren ' t done . But we can ' t
5 retry that procedure .
6 The appeal was made , upon advice of counsel ,
7 to the Circuit Court , and also apparently conversa-
8 tions that I ' m not privy to , but apparently at their
9 direction .
10 And I believe Your Honor has indicated
11 tonight that , to the best of your knowledge , the City
12 (sic ) Court was the proper place to go .
13 Just to clarify Mr . Mullis ' question , the
14 court did not say that the suit was meritless . The
15 court in fact said that it might have reached -- might
16 very well have disagreed with the actions that the
17 Board of Adjustment took in this matter .
18 What the court did say was , it did not feel
19 that it had jurisdiction to hear the matter . It did
20 not reach the issue .
21 Mr . Mullis is a lawyer . He certainly knows
22 the distinction between a court rendering a decision
23 on the fact and the issue and between the court making
24 a technical ruling , saying that the court does not
25 have jurisdiction .
25
What the court did do is make a technical
2 decision that it had no jurisdiction , did not reach
3 the merits of the issue . That is in fact what the
4 court did .
5 Now, the attorney, again advising the resi-
6 dents , indicated that he felt that the court was too
7 narrowly construing the court ' s powers .
8 What the neighborhood residents were faced
9 with was an additional economic burden to try to take
10 this matter in which , as citizens , as residents , as
11 taxpayers and voters in this community, we felt we had
12 a very legitimate right to do .
13 We were denied that opportunity at the Board
14 of Adjustment because of the lack of notice . The
15 court turned around and said it could not hear the
16 matter . We then had the option of trying to come up
17 with additional money and pursuing the matter further
18 and then have the Court of Appeals tell the court that
19 it did have that jurisdiction .
20 What , in essence , everything that Mr . Delaney
21 is saying here tonight , is asking for fairness and
22 direction from you members of the Board .
23 The community feels that the matter was not
24 handled in accordance with the zoning regulations .
25 They attempted to try to get that situation rectified .
26
1 Unfortunately, it did not get the hearing on the
2 merits that they would have liked to have heard .
3 But , at this point , our hands are tied
4 financially . We can ' t go any further , and we are ask-
s ing , as a matter of fairness , this City Board to
6 direct or suggest to the City Attorney that the matter
7 has gone far enough , the suit was certainly not
8 frivolous , and it was certainly not without grounds .
9 Unfortunately, it was dismissed on technical
10 grounds . Thank you for your hearing .
11 MAYOR HOWELL: Yes , sir .
12 COMMISSIONER GULLIFORD: Addressing what this
13 gentleman has said , where would the jurisdiction lie
14 if it ' s not in the Circuit Court?
15 CITY ATTORNEY MULLIS : That ' s the only place .
16 COMMISSIONER GULLIFORD: Well , in the struc-
17 ture of things , with the Board of Adjustment , and
18 without any control by an elected body like ourselves ,
19 and supposedly the court being the only place they can
20 go , but then the court says , "We don ' t have jurisdic-
21 tion" --
22 CITY ATTORNEY MULLIS : The court didn ' t say
3 that .
24 COMMISSIONER GULLIFORD: Okay.
25 COMMISSIONER MORRIS: What did the court say,
27
Claude?
2 CITY ATTORNEY MULLIS : Well , I didn ' t bring
3 it . It said that the court could not say that the
4 Board --
5 COMMISSIONER MORRIS: Had done wrong?
6 CITY ATTORNEY MULLIS: -- had done wrong ,
7 and , therefore , it was dismissed for failure to state
8 a -- they filed a petition for rehearing .
9I Let me just say at the outset now , Mr .
10i Delaney, I don ' t know the gentleman who just got up
and spoke . Now , I am really -- the only thing I would
12 want the City to do is what is fair .
13 MR. DELANEY: You also have citizens and tax-
14 payers , Mr . Mullis .
15 CITY ATTORNEY MULLIS : And everybody else
16 wants to do what is fair . So what is fair? You know ,
17 ) you go to court , and you lose . You know, it is common
18 practice every day, the other side petitions for
19 attorney ' s fees and court costs .
20 And they are trying to make this sound like a
21 simple case , you know, but I know that the Commission
22 was furnished by me , and Mr . Delaney, contrary to what
23 he says notwithstanding , by memorandums of law that I
24 filed on behalf of the Board , a motion to dismiss , and
25 memorandums of law that were filed .
28
1 It was a very vigorously fought and contested
2 case , and I can assure you that Senator Dunn and
3 everybody else from Daytona Beach , we tried every way
4 in the world to get your attorneys to sit down and
5 talk about it and compromise . We went to hearing
6 after hearing .
7 MR. DELANEY: How much is your bill , sir?
8 CITY ATTORNEY MULLIS : What?
9 MR. DELANEY: How much is your bill?
10 CITY ATTORNEY MULLIS : Atlantic Beach has
paid out at this point $3 , 457 . 50 . Do you want to know
12 what my hourly rate is for Atlantic Beach?
13 MR. DELANEY: No . It doesn ' t matter to me .
14 MAYOR HOWELL: Well , let me , as long as we
15 are going to talk about this , there is one question I
16 want to ask .
17 You made a statement , you said that everybody
18 up there , seventeen people , agreed they were going to
19 distribute the cost .
20 MR. DELANEY: Yes , sir .
21 MAYOR HOWELL: Now , you paid $650 .
22 MR. DELANEY: That ' s right .
`3 MAYOR HOWELL: Now , when I multiply 17 times
24 650 -- I may be wrong , I did this rather quickly, and
25 I am so used to having a calculator , but it appears
29
' then that you all have paid out $11 , 050; is that
2 correct?
3I MR . DELANEY: I picked up the extra money,
4 Mr . Mayor .
5 MAYOR HOWELL: Well , then it is not spread
6I among seventeen people .
7 MR. DELANEY: The majority of it is . I
8 picked up an original bill and an extra bill , which I
I I
9 -- which was a larger portion than anybody else ' s .
10 MAYOR HOWELL: May I ask what your expenses
were?
12 MR. DELANEY: My expense was $650 .
13 MAYOR HOWELL: No . I am talking about what
14 your bill was .
15 MR. DELANEY: I don ' t have a number yet .
16 Keith , do you know?
17 MR. KELLY: The whole bill adds up to about
18 $2 , 000 .
19 CITY ATTORNEY MULLIS : Has it been paid in
20 full?
21 MR. KELLY: Yes .
22 CITY ATTORNEY MULLIS : Both attorneys have
23 been paid in full?
24 MR. KELLY: As far as I know . I paid --
25 MR. DELANEY: Their hourly rate is $100 an
3U
hour .
2 MAYOR HOWELL: Mr . Kelly, let me ask you a
3 question . Since your name was the only one on the
4 suit , as far the City is concerned you were the only
5 plaintiff . You know , what side dealings you had
6 going , really, that is not a matter of record .
7 The record shows that you filed the suit ,
8 correct?
9 MR. KELLY: Yes .
10 MAYOR HOWELL: Had you lost the suit -- I ' m
11 sorry -- had you won the suit , would you not have
12 attempted to recover costs from the City of Atlantic
13 Beach for having put you -- just a minute -- having
14 put you to the expense of proving that something was
15 wrong?
16 MR. KELLY: No , it didn ' t occur to me to do
17 that , or to consider it . From our attorney -- our
18 attorney never. -- my attorney never gave me the idea
19 that I could collect from the City for our costs .
20 He also did riot give me any idea that the
21 reverse would be true . I asked him if -- I didn ' t ask
22 him that specific question .
23 But he indicated by implication that we had
24 no -- we were not -- that I was not under any danger
25 of , you know, being liable for any further costs after
31
1 paying him .
2 MR. DELANEY: I would like to make a note
3 that Mr . Howell asked me the same question a couple
4
days ago , and I said , "Absolutely not , " and I said it
5 would not be my intention to come back after the City .
6 MAYOR HOWELL: Well , I ' m sorry, that would be
7 the standard response at this point .
8 MR. DELANEY: Yeah .
9
MAYOR HOWELL: No offense .
10
MR . DELANEY: It depends on character , Mr .
11
Howell . I think the City is suing us right now .
12
MAYOR HOWELL: Yes , sir .
13 MR. MIZER: I would just add that normally --
14
and Mr . Mullis , I believe , would confirm this -- that
15 it is a highly unusual situation where an attempt to
16 recover attorney ' s fees -- it ' s only in very limited
17
and minor circumstances in which statutory provisions
18
would even allow such a petition to go forward .
19
I ' m not speaking for him, but I don ' t believe
20
-- well , he ' s already spoken . He said the thought
21
never even crossed his mind , both in terms of the
22
fairness issue and as far as the particular sections
23 of whatever code might have covered the proceeding .
24
But I believe , in general , people go into
25 court evey day , and disputes are resolved in courts of
32
1 law , and cost is one thing that may be assessed
2 against a party, but attorney ' s fees is a highly
3 unusual and very specific remedy that is only in very
4 limited situations .
5 CITY ATTORNEY MULLIS : Well , Mr . Mayor , I
6 don ' t know whether you know , this is set for argument
7 before Judge Moran on September the 4th at 9: 20 , and I
8 would assume what the gentleman says , and what Mr .
9 Delaney says , you know, that if the suit had merit ,
10 and there is no basis , and this is an unusual case , of
11 course , and it isn ' t anything particularly unusual for
12 Atlantic Beach to plow new ground -- it has been
13 innovative with some things in the past .
14 But if , in the event that what they say is
15 true , I would assume , of course , that the court will
16 not assess any attorney ' s fees and any court costs .
17 MR. DELANEY: It ' s still going to cost us
18 money to go someplace September 4th . It is going to
19 -- it ' s still going to cost us a buck to get it done .
20 So the bill goes up on both sides .
21 CITY ATTORNEY MULLIS : Are you willing to
22 compromise it?
23 MR. WYNCOOP: May I --
24 MAYOR HOWELL: Yes , sir .
25 MR. WYNCOOP: My name is Peter Wyncoop. I 'm
33
a resident of the Bluffs also . Mr . Mullis , about how
2 much money will the City spend to go to court on the
3 4th of September?
a CITY ATTORNEY MULLIS : On the 4th? Well , my
5 rate is not quite as high as your lawyer ' s .
6 MR. DELANEY: Your bill is .
CITY ATTORNEY MULLIS: Probably a couple
7
8 hundred dollars .
9 MR. WYNCOOP: And I guess my question to the
10 entire Commission would be: Is it worth spending
11 more , risking more of the City ' s taxpayers ' money to
12 pursue this further , as what to me looks like a venge-
ful suit? I guess that ' s a rhetorical question . Thank
13
14 you , sir .
15 COMMISSIONER GULLIFORD: I probably take
16 exception to it being perceived as a revengeful suit .
17 I think it is strictly a matter of , we were obligated
18 by statute and by law to take the action that we did ,
19 with the City Attorney representing the Board .
20 Let me go back to what I said before . I am
21 very much -- I have been tremendously opposed ever
22 since I have sat on this Commission to the structure
23 of the Board of Adjustment , that answers to no one ,
24 that has not been elected , and has the power that that
Board had , and not because of this , uut because of
25
34
other things that have been said that came up.
2 I thought it was a horrible structure , an
3 awful thing; but , still and all , I also recognized
a
that we are a republic , that we are governed by
5 laws . And whether my personal opinion goes contrary
to whether that law is good or not , we still are bound
6
to adhere to it , and I don ' t think that it should be
8
perceived that this was vengeful on our part . We were
9 simply following that which we were supposed to do .
MR. WYNCOOP: Sir --
10
11 MAYOR HOWELL: Yes , sir .
12 MR. WYNCOOP: -- well , my only comment was
based on the fact that the members of the Bluffs are
13
14 not arguing the Board of Adjustment at this point . We
15 have lost that round .
16 We have made the endeavor and we have lost ,
17 and it has cost us some money, and it has cost the
18 City some money, as we tried the only remedy
available .
19
20
And now we are giving it up because of the
21 expense . There are only seventeen of us . And I would
say that the expense involved , that the City has the
22
23 option not to pursue the members of the Bluffs or Mr .
Kelly for the court costs , the expenses , so tar , and
24
that , in fairness , that this would probably be a very
25
35
good decision . It would be seen as fair if the City
2 took this loss rather than continue to battle on and
3 spend even more money against the members of the Bluffs .
4 The suit was not frivolous . It was the only
5 relief that was available to us .
6 MAYOR HOWELL: Sir , if the suit is not frivo-
7 lous , don ' t you think that the judge , on September
8 4th , will make that determination and then allow no
9 attorney ' s fees , perhaps just , you know --
10 MR. WYNCOOP: Well , sir --
11 MAYOR HOWELL: I don ' t know . I am just --
12 MR. WYNCOOP : -- I believe so , too , and I
13 think maybe the City of Atlantic Beach feels it can
14 better afford to go to court on the 4th of September
15 than the members of the Bluffs , but we will do that
16 and defend ourselves against this motion by the City,
17 and I expect that it will turn out that way, that , in
18 fairness , that the Bluffs should not ne paying that .
19 And I suggest , therefore , that we all save
20 some money and don ' t go to court on the 4th of Septem-
21 ber . I think it is an unnecessary expense for us all ;
22 and , in the interest of fairness , that we call it ,
23 that we have both spent money, the City and the mem-
24 bers of the Bluffs , and it is time to call an end to
25 the unnecessary expense .
36
1 CITY ATTORNEY MULLIS: What do you think is
2 fair? What do you say? Are you all willing to do
3 anything to reimburse the City?
4 MR. DELANEY: No .
5 CITY ATTORNEY MULLIS: Nothing?
6 MR. DELANEY: No .
7 MR. WYNCOOP: No .
8 MR. DELANEY: I ' ll cover you for a dime but
9 nothing more .
10 MRS . KELLY: I want to ask one thing . You ' re
saying that there is a law and that you ' re following
12 the law, but is there a law that says that you are to
13 return or turn around and sue or collect court costs?
14 Is there a law saying that if a court
15 decision is made that you then can turn around , and
16 there ' s a law stating that you have to turn around and
17 sue the person that was asking for this petition?
18 CITY ATTORNEY MULLIS : Let me tell you some-
19 thing . Nobody, the town , Mullis , nobody is suing any-
20 body. A suit was filed, which was decided in favor of
21 the City of Atlantic Beach , which , in spite of what
22 the gentleman said to the contrary notwithstanding , it
`3 is commonplace , if there is any basis whatsoever , for
24 the losing side to have to pay attorney ' s fees .
25
37
MRS . KELLY: That is not traditional .
2 CITY ATTORNEY MULLIS : Well , maybe that is
3 your opinion .
4 MRS . KELLY: There is no law that says that
5 you have to do that . Obviously, it isn ' t in every
61 court case that an attorney turns around and collects
7 his --
8 CITY ATTORNEY MULLIS : I ' m not collecting for
9I me , I ' m collecting it for the town , the City of
1� Atlantic Beach .
MRS . KELLY: We are the City of Atlantic
12 ' Beach .
13 UNIDENTIFIED SPEAKER: We are the City of
14 Atlantic Beach .
15 MRS . KELLY: We have already paid --
16 UNIDENTIFIED SPEAKER: And we have already
17 paid --
18 MAYOR HOWELL: Yes , sir . And so am I . So am
19 I . I am also the City of Atlantic Beach .
20 UNIDENTIFIED SPEAKER: -- to defend this
21 developer from Rochester , New York --
22 MAYOR HOWELL: We are not defending any-
23 body . We have defended , if that is what you want to
24 call it , the action of a duly appointed Board of this
25 City. That ' s what we did .
38
COMMISSIONER MORRIS : And the court upheld
2 it .
3 MAYOR HOWELL: And the court upheld the
4 action of that Board , apparently.
5 MR. DELANEY: Mr . Mayor , if you feel that the
6 Board acted properly --
7 MAYOR HOWELL: It ' s immaterial what I felt .
8 MR. DELANEY: Oh , all right .
9 MAYOR HOWELL: It ' s immaterial .
10 MR. KELLY: That ' s what the judge said .
MAYOR HOWELL: I wasn ' t on the Board .
12 COMMISSIONER GULLIFORD: Nor did we --
13 MR. KELLY: He said it ' s immaterial , what he
14 thinks about the merits of the suit . He said he just
15 did not have jurisdiction . And that , you know, why
16 was the people around me advised to go to Circuit
17 Court if the Circuit Court has no jurisdiction?
18 MR. DELANEY: Mr . Morris , we ' re beating a
19 dead horse .
20 COMMISSIONER MORRIS : I don ' t know . I would
21 like to ask a question , if I may .
22 MAYOR HOWELL: Go ahead , Mr . Morris .
23 COMMISSIONER MORRIS: I will ask Mr . Kelly,
24 because his name is on the document , and with all due
25 respect to the rest of you and to Mr . Mullis , isn ' t
39
there some avenue of compromise , attorney to attorney,
2 in these matters , split the difference?
3 CITY ATTORNEY MULLIS : That ' s what I asked
d them, what did they want to do . I ' d be willing to do
5 anything .
6I COMMISSIONER MORRIS: Let me say this
7 quickly, and you may not like this at this point in
8
time , but this man is your City Attorney just like he
is mine .
10 ' Now, how do we bridle our bulldog? If we
don ' t let him bite and defend every legal matter that
12 comes before the City -- we have had some lulus , and I
13 am going to have to sympathize with you folks , and I
14 don ' t think yours is out of order insofar as what you
15 were requesting .
16 I ' m like Gulliford, I have gritted the enamel
17 off my teeth on that Board on some of their actions ,
18 but my point is this : I don ' t see how we can tell the
19 bulldog just bite these people a little bit and then
20 turn around , come back tomorrow, and then say eat him
21 up, or the next guy that comes along , because we have
22 had some people outside the City sue us , as well as
23 some people inside the City, some frivolous suits .
24 So, you know , what I think Claude ' s doing is
25 earning his money. He is following the procedure of
1
40
1 due process . He is working for the City of Atlantic
2 Beach , not for a special-interest group but for the
3 whole City.
4 So what I would suggest , Mr . Kelly, is , you
S talk to your attorneys and talk to this fellow about
6 some kind of compromise .
7 To answer your question , Mr . Delaney, any-
8 thing other than that , as far as I ' m concerned , would
9 be beating a dead horse .
10 And, if Claude comes back and advises us ,
11 "Well , I think we ought to compromise , " then , in all
12 good fair play, and we cannot punish the City of
13 Atlantic Beach ' s coffers too greatly by doing that ,
14 then I would certainly listen to his advice .
15 CITY ATTORNEY MULLIS : Are you willing to
16 compromise now?
17 MRS . KELLY: No .
18 CITY ATTORNEY MULLIS : Okay. If you are not
19 willing to compromise now, then how in the world do
20 you expect --
21 MRS . KELLY: We ' ve already paid a lawyer ;
22 we ' ve paid our lawyers .
23 MR. GRAHAM: We ' ve --
24 MR. DELANEY: I ' ll compromise . We ' ll take
25 the two bills , throw them in the hat , take the total ,
41
divide it in half , and then we ' ll pay you the
2 difference .
3 COMMISSIONER MORRIS : We will get Some legal
4 1 advice on that .
5 CITY ATTORNEY MULLIS: I need a mathematician
6 tO --
7 MR. DELANEY: Five hundred dollars , basi-
8 cally, is what you are talking about .
9 COMMISSIONER GULLIFORD: He ' s talking about
10 taking their bill and our bill and combining them and
11 dividing by two , and they would end up making up some
12 difference .
13 MR. DELANEY: But you and the attorney get
14 together on that . I can ' t say that , because I know
15 you have to vote , and you have to discuss and vote and
16 decide what you want to do with it . That ' s your
17 prerogative . So I ' ll sit down and you gentlemen can
18 talk and decide what you want to do .
19 MR. MIZER: What did you say, the fees were
20 3400?
21 CITY ATTORNEY MULLIS: Fees and costs were
22 $3 , 457 . 50 --
23 MR. MIZER: How much --
24 CITY ATTORNEY MULLIS : -- since February.
25 MR. MIZER: What ' s the --
42
CITY ATTORNEY MULLIS: Do you want a
2 breakdown?
3 MR. MIZER: Just between the fees and costs .
4 CITY ATTORNEY MULLIS: March 15 , three sixty-
5 seven fifty, and April --
6 MR. MIZER: No , just the totals of fees
7 versus --
8 CITY ATTORNEY MULLIS : I don ' t know . I don ' t
9 have the breakdown on the costs . I just got it from
10 the Director of Finance today. I ' ll break it down as
far as my bills are concerned and charge to the
12 specific case .
13 MR. MIZER: Thirty-four --
14 CITY ATTORNEY MULLIS : $3 , 457 . 50 . Is that
15 what you are talking about , the dollars and cents ?
16 MR. DELANEY: Six hundred dollars .
17 CITY ATTORNEY MULLIS : That ' s it . Just let
18 it go.
19 COMMISSIONER GULLIFORD: I figured it out ,
20 rounding it off , to be $700 difference , which you said
21 you had seventeen people involved in that , and then
22 comes out to $41 per person .
23 MR. MIZER: You can ' t commit on that . You
24 have to ask .
25 COMMISSIONER MORRIS : I don ' t think it is
I 43
1 I proper for you to be dealing with Mr . Delaney, I mean,
2 is it , Claude? I ' m asking .
3 CITY ATTORNEY MULLIS : Well , I ' m not sure it
4 is , either . How much would you settle for , Mr .
5 , Delaney?
6I MR. DELANEY: I would settle for $300 .
7 CITY ATTORNEY MULLIS : I thought you said
8 $700 .
9 MR. DELANEY: That ' s my own pocket . That ' s
101 my own pocket . He said he doesn ' t think -- it ' s not
fair , that I should dicker with their money, because
1211 there are seventeen people there . So we ' re not talk-
13 ing about the seventeen .
14 CITY ATTORNEY MULLIS : Well , didn ' t you
15 dicker with their money when you started out defending
16 this lawsuit? Did you say you went to them and
17 solicited the funds from them?
18 . MR . DELANEY: I was not there , no , but the
19 attorneys were .
20 MR. MIZER: What he is saying is , he has to
21 talk with the other people . He can ' t -- until he goes
22 back -- he can ' t state until he goes back and checks
23 with the rest of the people in the community, he can ' t
24 respond to your question .
25 CITY ATTORNEY MULLIS : Let me just say one
44
1 thing , Mr . Mayor . If we have to put on testimony on
2 September the 4th , I can almost guarantee you that the
3 testimony, due to the actual , literal number of hours
4 devoted to this litigation, will result in substan-
5 tially more than the $3 , 457 . 50 .
6 MR. GRAHAM: Mr . Mayor?
7 MAYOR HOWELL: Yes , sir . State your name for
8 the record .
9 MR. GRAHAM: I ' m Bob Graham, also a resident
10 of the Bluffs . And I haven ' t been actively involved ,
but I am sitting here , smiling I guess a little bit ,
12 because it seems like there are two discussions going
13 on here going in two different directions about facts
14 that I think are perhaps a little clear .
15 Nobody here is arguing the right of the City
16 of Atlantic Beach to defend itself in the courts ,
17 which it is obligated to do . I would be the first
18 person to support that .
19 But what people are sitting here saying is ,
20 okay, fine , you may have had to support something
21 legally that was a bad decision to start with , but
22 then do you turn around and then sue the people? That
23 is the issue , not the original part .
24 I think I would be the first person to agree
25 that the City has to maintain itself , you had to do
45
1 what you did . That ' s not what anybody is talking
2 about here right now .
3 People are saying , "Hey, do you then turn
4 around on something that a couple of you" -- and ,
5 again , I haven ' t been privy to this , but mention that ,
6I hey, it does look like certain things were wrong .
7 That ' s the part , I ' m sorry, as a new resident to your
8 City, because we were annexed , as a taxpayer , that ' s
q � the part , as a citizen , regardless of whether I am
101 involved in here or not , that ' s the part that bothers
me , and I think that ' s what bothers , you know , or
12 would bother potential voters .
13 That ' s the part --
14 MAYOR HOWELL: Mr . Graham, the problem that
15 we are faced with , that the City has expended X number
16 of dollars of the taxpayers ' money defending a suit
17 that , for whatever the reason , we have no control of
18 the Circuit Courts . They do whatever they want to , or
19 the County Court , or whoever it was .
20 MR. GRAHAM: Sure .
21 MAYOR HOWELL: The judge ruled that there was
22 -- you lose , regardless whether you like it , you lose .
23 MR. GRAHAM: Okay .
24 MAYOR HOWELL: Okay. At what point then, or
25 in any similar suit , should we always say, well , you
46
know , let ' s be fair about it , let ' s don ' t go after
2 anything because this suit was , even though it was
3 frivolous , or whatever word you want to use , where do
4 we draw the line?
5 MR. GRAHAM: You ' ve already drawn the line .
6 You did away with your Board that you said for some
7 reason was not valid --
I
8 MAYOR HOhELL: No, sir , that is not correct .
9 We merged the Board .
10 MR. GRAHAM: Did you change your procedures
11 when you merged it because of some irregularities ,
12 having appeals --
13 CITY ATTORNEY MULLIS : Well , basically --
14 MAYOR HOWELL: No , sir . Any appeal from that
15 Board, any decision they make still -- am I not
16 correct? -- it doesn ' t come to the City Commission .
17 MR. DELANEY: It comes to the City
18 Commission --
19 MAYOR HOWELL: No , sir . There are limited
20 areas where their decision is final , there is no
21 change --
22 CITY ATTORNEY MULLIS : On variances --
23 COMMISSIONER GULLIFORD: On certain
24 variances .
25 MR. GRAHAM: If I might ask , because I really
47
don ' t know , and I am really only asking a question,
2 but let ' s just hypothetically say, and it may answer a
3 lot of people ' s questions , if this were to happen
4 today -- and , again , I wasn ' t here when it happened
5 before -- but the same thing happened in terms of your
6 being even apprised , whether they are valid or
7 invalid, but somebody came to you and said , "Hey, here
8 are these irregularities under the new board . "
9 And , again , I don ' t know how it functions --
10 MR. DELANEY: Community Development Board .
11 MR. GRAHAM: -- Community Development Board ,
12 could things have been different? I guess is my
13 question .
14 CITY ATTORNEY MULLIS : In a factual situation
15 it could have been identical to what happened in this
16 case , because the Community Development Board , which
17 Mr . Delaney serves on , has final jurisdiction in cer-
18 tain matters , and the only recourse is to go to
19 Circuit Court after that .
20 COMMISSIONER GULLIFORD: And that is what I
21 object to personally. I truly object to that , because
22 I think it should be --
23 MR. GRAHAM: On both Boards?
24 COMMISSIONER GULLIFORD: Well , on the fact
25 that you have a Board that is appointed and not
48
1 elected , and can have that kind of final jurisdiction,
2 absolutely, but we ' re governed by state statute in
3 that respect . You have got to talk to the tine legis-
4 lators in the State of Florida about that .
51 That is not the action of this body or the
6 Charter of Atlantic Beach .
7 MR . DELANEY: I always felt , from what I
8 read , that there is -- that they can appeal to the
9 City, this Commission, on any matter that we hear .
10 There ' s a difference now. Sometimes it has
to be passed on automatically from our Board to your
12 Board . Other times , if it ' s going to -- if somebody
13 -- if we make a decision and it ' s going to be
14 appealed , then the appeal still comes to the City .
15 There is no direct , to my knowledge , now,
16 means of , method , if the Community Development Board
17 makes a decision , it has to go to Circuit Court . That
18 has been eliminated .
19 You corrected that mistake , and we are the
Z0 only ones that are suffering from it , and we are the
21 last ones that will be -- would seek that remedy.
22 CITY ATTORNEY MULLIS: What did you say you
23 were willing to do?
24 MR. WYNCOOP: He said he couldn ' t say
25 tonight .
49
MR. DELANEY: We will pay our bill and we
2 will let it go .
3 CITY ATTORNEY MULLIS : But if you still go to
4 Circuit Court , you know --
5 COMMISSIONER GULLIFORD: Oh, yeah, right , but
6 I mean --
7 MR. DELANEY: My contention was , and is , and
8 still will be , that we had no other recourse , no place
9 to go within the City , that we appealed to the City .
10 The City denied us every place we went , and
so that you forced us to go to the court . You did not
12 warn us , advise us , suggest to us , that , if we lost ,
13 there would be recourse or redress against us .
14 MAYOR HOWELL: You had an attorney who should
15 have done that . You paid him $2 , 000 , and he should
16 have done all of that . It ' s damn sure not up to me .
17 I ' m not an attorney .
18 MR. DELANEY: The attorney did not discuss
19 it . We were not advised . We weren ' t advised by any-
20 one , okay? That ' s the bottom line .
21 Now you ' ve resolved that situation .
22 MAYOR HOWELL: Well , again , you have used
23 that terminology, "advise . " I never advised you to do
24 anything .
25 MR. DELANEY: I can use the word --
50
1 MAYOR HOWELL: I informed you of what the
2 Charter said .
3 MR. DELANEY: -- informed , advised,
4 suggested , told . Webster has , you know , a very wide
5 meaning for any word , Mr . Mayor . And we have had five
6 or six meetings before we had to do this , because I
7 kept coming back to you , looking for help .
8 MAYOR HOWELL: There was no help I could give
q you . I told you that from the beginning .
10 MR. DELANEY: What did you tell me?
11 MAYOR HOWELL: I told you , the Charter pro-
12 vided that , if you wanted to appeal the decision of
13 the Board of Adjustment , you went to the Circuit Court
14 or County Court , to the court of competent
15 jurisdiction .
16 MR. DELANEY: If I take it out of context ,
17 you told me to go to the Circuit Court . That ' s what
18 you just said, sir .
19 MAYOR HOWELL: No, I did not . I told you --
20 MR. DELANEY: Okay .
21 MAYOR HOWELL: -- if you wanted to appeal it ,
22 that ' s where you had to go .
23 MR. DELANEY: And you told me that I would
24 have to appeal it there .
25 MAYOR HOWELL: That ' s correct .
51
MRS . KELLY: Okay, I talked with --
2 MAYOR HOWELL: Ma ' am, state your name for the
3 record , please . I don ' t think you ever have .
4 MRS . KELLY: Okay. I ' m Mrs . Kelly . And I
5 talked with Mr . Fellows , I talked with Mr . Mullis . I
6 also talked with the lady on the old Board who was
7 very sympathetic , and I was told that I had to go to
8 Circuit Court . I also talked with the State Attor-
9 ney ' s Office , and they said that : "Atlantic Beach
10 obviously should hear your case and please try to get
on the agenda , " which I did .
17 I called Mr . Fellows . He said , " I ' m sorry,
13 but we cannot put you on the agenda . " I noticed
14 tonight that you asked that if anybody had anything to
15 say at the beginning of the meeting , when did that
16 start? Did it just start tonight?
17 MAYOR HOWELL: That started in 1957 , when I
18 first became mayor .
19 MRS . KELLY: When I called Mr . Fellows , why
20 didn ' t he say, "At the beginning of every council
21 meeting we allow anybody that has any grievances or
22 wants to say something to come in and say it" ? And we
23 would have been here . We all would have been here .
24 The reason we weren ' t at that hearing is
25 because we had no notice , even though we lived right
52
next to the property . We were not notified .
2 The sign that was placed on that property was
3 down the day it was put up . We never saw it .
4 MR. DELANEY: I think what she ' s saying, she
5 was turned away by everybody.
6 COMMISSIONER GULLIFORD: Wait a minute ; wait
7 a minute . Let me back up there , Mrs . Kelly . I don ' t
8 think that the State Attorney ' s Office is an expert on
9 what our Charter reads and says --
10 MRS . KELLY: I didn ' t say they were . They
11 just advised me --
12 COMMISSIONER GULLIFORD: Wait a minute , if
13 you will , to permit me to finish speaking .
14 They told you that you needed to come to this
15 Commission , and we are telling you that this Commis-
16 sion in that situation had no power to act , so you
17 could have come and spoken at that time that ' s offered
18 or afforded any citizen , but --
19 MRS . KELLY: I was not advised of that at
20 all .
21 COMMISSIONER GULLIFORD: -- the Commission
22 still could not have done anything .
23 MAYOR HOWELL: Look, we could be up here all
24 night . The bottom line of all of this , it seems to
25 me , is very simple .
53
They went to court and they lost . Now we can
2 either pursue the matter or , if you want to have any
3 deviation from it , the only thing that I know that you
4 can hang your hat on is that the ordinance , in connec-
t
5 tion with that particular Board , which has been merged
6 with the zoning and is now the Community Development
7 Board , it would appear that , had that ordinance been
8 in place at that time , they could have brought that
9 appeal to this body.
10 It was not , at that time . But , had it been ,
so if you want to turn back the clock and go to that ,
12 it ' s up to you .
13 COMMISSIONER GULLIFORD: Well , that would be
14 my personal -- regardless of the position that Mr .
15 Delaney has taken on several things , which I take
16 exception to --
17 MAYOR HOWELL: I take exception to plenty of
18 the things Mr . Delaney has said .
19 COMMISSIONER GULLIFORD: -- the one thing
20 that I find difficult is exactly that fact , that they
21 did not have an opportunity to go anywhere but Circuit
22 Court , and I think the final jurisdiction in a commun-
23 ity like this should be the elected officials . They
24
should bear the heat and they should make the
25 decisions , right or wrong .
54
And whether somebody agrees with them or
2 whatever , my feeling would be to forget about it .
3 MAYOR HOWELL: You want to move then to
4 advise the City Attorney to withdraw the case?
5 COMMISSIONER GULLIFORD: You have that
6 motion .
7 MAYOR HOWELL: Is there a second?
8 CITY ATTORNEY MULLIS : Except for costs .
9 COMMISSIONER COOK: State your motion again .
10 COMMISSIONER GULLIFORD: I move to advise the
11 City Attorney to withdraw his action to collect fees .
12 MAYOR HOWELL: Are you talking about
13 attorney ' s fees now?
14 COMMISSIONER GULLIFORD: The attorney fees .
15 MAYOR HOWELL: What about costs , the court
16 costs that were --
17 COMMISSIONER GULLIFORD: Well , that is not a
18 significant amount of money, is it? I wouldn ' t think
19 so . What would you estimate that to be?
20 CITY ATTORNEY MULLIS : $150 .
21 COMMISSIONER GULLIFORD: I will leave the
22 costs , the fees . That is less than what Mr . Delaney
23 was negotiating for , although he didn ' t have the
24 affirmation of the other people .
25 MAYOR HOWELL: Okay. Then you are saying ,
55
I your motion basically is withdraw the suit if they pay
2 the fees prior to September 4th .
3 COMMISSIONER GULLIFORD : September 4th .
41 CITY ATTORNEY MULLIS : September 4th .
5 MAYOR HOWELL: Prior to September 4th , is
6 that your motion , basically?
7 COMMISSIONER GULLIFORD : Yes , sir .
8 MAYOR HOWELL: Is there a second to that
9 motion?
10 COMMISSIONER MORRIS : How in the world can we
do this? Excuse me . You asked for a second .
12 COMMISSIONER GULLIFORD: Why don ' t you second
13 it to debate the motion , if you care to .
14 COMMISSIONER MORRIS : I don ' t agree with the
15 motion .
16 MAYOR HOWELL: Anybody want a second for dis-
i
17 cussion purposes only?
18 COMMISSIONER EDWARDS: I ' ll second it for
19 discussion .
20 COMMISSIONER GULLIFORD: Well , it ' s about
21 time . Do you want to know how? Do you want to know
22 the justification for it?
23 COMMISSIONER EDWARDS : Aren ' t we setting a
24 precedent --
25 COMMISSIONER GULLIFORD: No, not at all .
56
1 COMMISSIONER EDWARDS : -- for down the road
2 somewhere?
3 COMMISSIONER GULLIFORD: No, not at all ,
4 because -- and I misunderstood that . I misunderstood,
S and I sat down here and read some of the statutes
6 governing the powers of both the Community Development
7 Board and was aware of what the Board of Adjustment
8 could do prior to .
9 I was under the impression that it was still
10 empowered basically to act as the sole jurisdiction in
the community.
12 If we , as the Mayor said , could change the
13 clock , and these people went through that action
14 again , and if we were the final jurisdiction , then I
15 think that that is a right that should be afforded to
16 them, and I think they were denied that right by
17 virtue of the prior organization ; and , in that
18 scenario -- and I don ' t think we are establishing a
19 precedent -- I can certainly side with their feelings .
20 I feel like that if I was a member of their
21 little community there that I probably would have been
22 just as vocal , just as adamant , to protect my inter-
23 ests and my rights , and I would have probably pursued
24 the same course , but I would like to have had an
25 opportunity to bring it before a board of elected
57
1 officials , and they were denied that right .
2 They will not be denied that right -- some
3 future group in a similar circumstance or situation
� I would not be denied that right now the way it ' s
5 structured , which I think is the proper way for it to
6 be .
7 In that instance , in that scenario , I think
8 it is only fair for us to take the position that my
2motion supports .
10 I think , first and foremost , you still have
to put yourselves in the shoes of some citizens , par-
12 ticularly if you feel like that they are victimized ,
13 that they do have --
14 COMMISSIONER MORRIS : What if they decide to
15 appeal.?
16 COMMISSIONER GULLIFORD: Do what?
17 COMMISSIONER MORRIS : Suppose they decide to
18 appeal?
19 CITY ATTORNEY MULLIS : That ' s a good
20 question .
21 COMMISSIONER MORRIS : Then what?
22 MRS . KELLY: We have no desire to appeal .
23 We ' d just like to get this over with .
24 COMMISSIONER EDWARDS: How are we going to
25 explain this to the taxpayers of the City of Atlantic
58
1 Beach?
2 MRS . KELLY: We are the taxpayers in the City
3 of Atlantic Beach .
4 UNIDENTIFIED SPEAKERS : We are the taxpayers
5 of Atlantic Beach .
6 COMMISSIONER MORRIS : So am I .
7 COMMISSIONER EDWARDS: I ' m a taxpayer , too .
8 COMMISSIONER GULLIFORD: Let ' s not get out of
9 hand. You shouldn ' t be getting into a debate between
10 the --
11 CITY ATTORNEY MULLIS : So am I .
12 MAYOR HOWELL: You are finished . You have
13 had your say. This is discussion of the City
14 Commission now .
15 COMMISSIONER GULLIFORD: Well , I think it
16 goes to --
17 COMMISSIONER EDWARDS : I mean , the people
18 that are not here tonight , to hear about this later
19 on, we give away this and we give away that .
20 COMMISSIONER GULLIFORD: I don ' t think you ' re
21 giving anything away . I really don ' t . I think , in
22 the course of the operation of a community like this ,
23 you obviously are going to incur some expenses that
24 you could justify not pursuing .
25 You still have the question as to whether the
59
1
courts will rule in favor , although I have great con-
2 fidence in the City Attorney, that that is probably
3 the instance , the fact that we will have a favorable
4 1 ruling , but there is always the question as to whether
5I or not that would be the case .
6 Again I say to you , put yourselves in their
7 position, regardless of where you might be , and put
8 any other citizen in their position , and do they have
9 an inherent right , if something they feel is not cor-
to rect , do they have an inherent right to approach this
11 body and argue their position and hope that this body
17 has the final jurisdiction and can vote? I think that
13 is the question at hand .
14 They did not have that right prior to this ,
15 and , therefore , they took the only remedy that they
16 saw that was available to them .
17 I don ' t think that they should have had to
18 incur $2 , 000 worth of costs to go to court over the
19 thing, having not been able to come here first and ask
20 for a vote on the thing .
21 Now, that is where my hangup is . That is why
22 I think it is justifiable to forget pursuing the
23 costs .
24 COMMISSIONER MORRIS : Read the motion .
25 CITY CLERK TUCKER: There are two different
60
L _
motions . It says : Advise City Attorney to withdraw
2 action , his action to collect attorney ' s fees , if they
3 pay the cost prior to 9/4 . " If they pay the cost" was
4 added to what he said originally. So I ' m not sure --
5 COMMISSIONER GULLIFORD: Well , the motion did
6 specifically state fees , it did not say fees and
7 costs , so the inference was that they would assume the
8 costs , and I think what the Mayor suggested was
9 strictly a point of clarification there .
10 I think that might be a gesture on their
part .
12 COMMISSIONER MORRIS : You done good . I think
13 you about convinced me . I see where you ' re coming
14 from, is what I ' m trying to say .
15 COMMISSIONER COOK: I think I can second the
16 motion --
17 COMMISSIONER GULLIFORD: It ' s already been
18 seconded.
19 COMMISSIONER COOK: -- without it being for
Z0 discussion .
21 COMMISSIONER GULLIFORD: Question .
22 MAYOR HOWELL: Ready for the Question? All
23 in favor . Opposed . The ayes have it .
24 If you people want to get with Mr . Mullis
25 prior to September 4th and take care of the costs ,
61
whatever they may be -- he estimates somewhere around
2 $150 -- then he is authorized to withdraw the suit ; if
3 not , on September 4th we will be in court . Thank you .
4 MR. DELANEY: Thank you .
5 UNIDENTIFIED SPEAKERS: Thank you .
6 1 446 .0
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62
CERTIFICATE
2 STATE OF FLORIDA
3I COUNTY OF DUVAL )
4 I , Gayle J . Featheringill , CVR-CM, Certified
5 Verbatim Reporter and Notary Public , State of Florida
6 at Large , do hereby certify that I was authorized to
and did report the foregoing proceedings , and that
8 thereafter my notes were transcribed and reduced to
9I typewriting under my supervision , and that the fore-
10 going pages contain a full , true and correct tran-
script of my notes taken herein .
12 I further certify that I am not a relative ,
13 employee , attorney or counsel of any of the parties ,
14 no relative or employee if such attorney or counsel ,
15 nor financially interested in the foregoing action .
16 WITNESS my hand and official seal this , the
17 31st day of August , A.D . 1987 , in the City of
18 Jacksonville Beach , County of Duval , State of Florida .
19
20
21 11
22 J1/1141 /./
GA L J. F ATHER N LL, a R-CM
23 Not - ,y Pu .lic , State of ! • lorida
at Large . My Commission expires
24 January 19, 1991 .
25