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08-18-87 v MINUTES OF THE COMMUNITY DEVELOPMENT BOARD CITY OF ATLANTIC BEACH, FLORIDA August 18, 1987 CITY HALL Present : Louis B. MacDonell, Vice Chairman Samuel T. Howie Frank Delaney Ruth Gregg John Bass Donald Tappin And : Richard C. Fellows, City Manager Claude L. Mullis, City Attorney Rene' Angers, Recording Secretary And : Rita Fairbairn William Dukes Thomas J. Bennett Heywood Dowling Mike Akel Absent : W. Gregg McCaulie, Chairman The meeting was called to order at 7:00 p. m. Vice Chairman MacDonell asked for comments on the minutes of the meeting of July 21, 1987. There being none, Frank Delaney motioned that they be approved as presented. Ruth Gregg seconded the motion, which carried unanimously. * * * * * NEW BUSINESS A. Application for Exception for Home Occupation, Lot 7, Block 15, Royal Palms Unit Two A, 761 Cavalla Road by Craig and Rita Fairbairn Rita Fairbairn stated that she wished to use one bedroom of her home for an office for her house cleaning service, that there would not be an increase in traffic and there would be no equipment, other than a vacuum, stored on the premises. The Board discussed setting a time limit on the exception to re- review the application. After further discussion Mr. Howie motioned to recommend approval of the application, subject to the applicant maintaining the office in the room specified on the application. Mr. Delaney seconded the motion which carried unanimously. B. Application for Exception for Automobile Sales in a Commercial General Zoning District, Lot 1, Block 38 and Lots 1 and 2, Block 39, Section H, 880 Mayport Road by William Dukes/Emily Helow Mr. Dukes, 1150 Penman Road, Jacksonville Beach, introduced himself and explained that he wished to open a car lot on the site of a closed service station. Ruth Gregg stated that the law requires proof that the gasoline tanks have been removed or filled and that it has been tested for contamination. There being no further discussion Mr. Tappin motioned to recommend approval of the application. Ruth Gregg asked to add to the motion, "subject to proof of removal of the tanks". Mr. Tappin agreed to the amendment and added, "if required by state law". Ruth Gregg seconded the motion which carried unanimously. C. Application for Rezoning from RG2 to CG, Lot 772, except the westerly three feet thereof, Saltair Section I, 680 Sturdivant Avenue by Thomas J. Bennett Mr. Bennett stated that he was asking for rezoning in order to be able to expand the existing commercial building located on Atlantic Boulevard, back to Sturdivant Avenue. He stated that the property is surrounded by commercial uses; to the west is the Little Champ convenience store, to the east is the Rite Spot parking lot, and to the south is Fashion Optical. Mr. Tappin motioned to recommend approval of the application. Mr. Bass seconded the motion which carried unanimously. D. Application for Variance, Lots 753, 754, 755, the East 4' of Lot 755, and Lot 772, except the westerly three feet thereof, Saltair Section I, by Thomas J. Bennett Mr. Mullis advised the Board that they may wish to defer action on the application for variance until the rezoning matter could be decided by the City Commission. The Board agreed and the item was deferred until further notice. Vice Chairman MacDonell made an announcement regarding the upcoming conference on beach access co-sponsored by the City of Atlantic Beach to be held on October 2nd, hosted and directed by Mayor Howell. E. 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Tno pa4ernorso Gay} 1ey4 pa4ernoreo Gay4 uayM •sasoe g •Z se G4sadosd STy4 To ease ay. palernoreo Ssaaut6ua sno sT 48 TT ayy •re44Twgne ay4 uT suoT}oassoo TO ardnoo a axew sT op O . a)TT P, I leyA paaoosd I asoyaq AON •ZOg pauoz Grluasasd sT 4e1.14 G4sadosd To aoatd e uo 840T awoy GTTWET aT6uTs aATaA4 'resaua6 uT sT 'noX 04 4uasasd 04 'op 04 a)iTT pTnoA I pue Taxi/ •sW 4egM •4y5luo4 quasasd sT o4A 'Taxi/ axTW •sW 'G1sadosd ago To sauAo ay4 'GTsadosd aye TO ssauAo ayf 4uasasdas • • •6uTTMoQ alad sT awsu GW ONI1MO0 DELANEY That 's the original plan. DOWLING O. K. -we were forced to try to fit twelve lots in here. We worked with every conceivable combination of lots and prices of lots, we used appraisal data from the past, we used small developments close to ours, Selva Marina Gardens, which is very close to ours, in designing our lot sizes-we went into Selva Marina-we feel that what we have done is about as efficient as we can get in lot design. Now, what that means is for those of you that do not have a site plan, I don't have an easel, and even if I did this particular one is a little hard to read where you are, I ' ll just explain it because it is very simple. We really only have two types of lots, four oceanfront lots which are 45' wide each and a depth of approximately 70-80' to the coastal construction line, that we can actually build on. Effectively, if someone lived in that house and they looked out and try to enjoy their front yard, they would literally have the entire beach. So it really, the CCSL doesn't really inhibit someone in the building area for those front lots. I think they work just fine that way. The other lots, we call the rear lots, are 50' wide and legally 91. 25' deep. Now, I say legally because actually the front property line, when these people see a survey of the lot they buy, will be dead center in the middle of the road. And what that creates is a private road situation. The private road we're suggesting has a paved area of 20 1/2' in width with an additional 5' on either side of the street for a city easement for utilities. Now, from the edge of pavement were suggesting our front setback be 20' . We're suggesting that our side setback be 10', which means the building area of a particular house may be on the line for one lot but the next house can't build closer than 10' next to him. I think you all see that is pretty self explanatory on the site plan. I haven't had any problem with that, the next thing is the thing that I think most of the people behind me are here about tonight, and I found out about this afternoon, and that is a strong dissension with the rear setback on the site plan submitted. We originally submitted a site plan with a 20' rear setback. And we liked it except that it brought a problem, in it really forced most people to build a two story house, because the building area is down to 1600 square feet. Approximately 40 x 40. Now if you put a double garage, which is in most homes these days, a double garage from my experience as a builder, takes up about 500 sq ft, if it 's say, 20 x 25. So, 500 from 1600 leaves about an 1100 sq ft airconditioned space for the first floor. That really is pushing it. You really can't sell to some one who wants to live in a single family (single story ) home, I find that about one out of eight of my buyers want in a single family (single story) home. They don' t want to walk upstairs. So, that creates a problem, so one of the members of our team said, why don't we go for smaller rear setback and increase the building area. So we tried it and I hadn't really thought that much about it, until I talked to a resident in the area this afternoon, who was quietly irate about it, and we reconsidered it. And what we'd like to do, we'd like to find some where between the 10 and 20' setback to make this work, so we could have a first floor of at least 1200 sq ft or 1300 sq ft. So these single story owners can work it out. It would work at 17' . We are prepared to make the project work at 20' if we have to. It just depends on how the neighboring residents and you board members, how important you feel the 20' is. I should remind everyone, in addition to the 20' there is what you might call a built-in buffer already behind each of the back lot houses, which would really not permit, especially on the south side, since Oceanwalk has an ocean-access easement of I believe 15' . So, if we did go 10' we're actually an additional 20' for the oceanwalk easement, and more feet from Pelican Dunes. It really forces you into a rear yard situation that is better than many subdivisions. We inherited that situation. On the other side it 's a little different. The Bluffs have a private road there, in a sense that can act as a buffer. I Understand that one of the biggest problems certain residents have with this is that, if we do go two stories, it may create what might be a wall of construction too close to their property. It would cut everything out from the horizon, the sunrise, sunset, the chimneys for the fireplaces would be too close to other structures, and all this together gave kind of a cramped feeling. So, I don't know how that would exactly feel and non of us will until it is built out, but I guess if we could find some compromise between the 10 and 20 it would help us sell these houses to single story owners with a 1200 sq ft minimum house. I 'm open for suggestions. DELANEY I think we had a discussion regarding this and a single family house, ah. . , at Pelican Dunes the houses are 35' high three stories and basically all glass facing you, immediately along the line of your ___ If you go single family I don't know what you are going to do with the fireplace smoke. If you want to go single family that is fine, but the chimneys would be either in the dining room, and letting the smoke go out, or into the bedrooms. So you have that condition, and the closer it is to their property the more severe it is going to be. If someone gets a fire in the chimney you might as well kiss the whole development goodbye, because it is going to go right into the houses. You have the condition about blocking the seabreeze, natural light not Bud Light, that they have to be concerned about, and other conditions there. If you put them close together they're going to be looking into each others windows. How close do you want to make them. UNCLEAR Now, you're talking about 20' on the easement, I believe the easement was 15' . And then their 5' backyard. But the closer you come to them, the more inconvenience there is going to be. the more it is going to damage their property values. They are losing, there is no question about it now, they are losing their oceanview. But that is not relevant you are basically saying. But with the closeness and the other problems you are going to create, I think we should expect that you should follow the regulations as they stand and go 20' . I don't know any other way of doing it. You are 20' . What we're doing also here is creating a brand new condition for you, CDM and Mr. Akel, and I think it should be done with consideration to what effect its going to have on the entire neighborhood. Last month one man came in here and made out an application for an easement and it was 17' garage or cover for his car, and we sent him home again and told him to check with his neighbor and it was approved subject to one neighbor approving a project. There isn't a single neighbor here that wants to accept anything other than the original plan you submitted to him. Mike wants to arbitrate or . . . you work out, so do you. But I don't know where they would stand, or what they ' ll accept other than the original plan. Which will force you into two story houses. But I find it difficult, if you want to go down the list, what effect does it have on you, it 's going to go with the value of the neighbor. It 's going to be a health hazard as far as the smoke goes because you're going to have your neighbors breathing smoke all winter long. The normal breeze is out of the northeast-northwest and you're taking that away from them with the thirty-five foot but that 's not pertinent. The pertinent thing is it 's a health hazard, it constitutes a health hazard as far as I can see and would also devalue the neighbors properties. Speaking for the majority of people and the petitioners who signed this petition, they' ll accept twenty feet. I don't think they would like to accept anything else. And you came in here with a nice plan that everybody accepted and I think the general opinion was that we want to help you, want to work with you because the land is there and we don't want anything, a townhouse, we don't want anything other than what you came in with, we accepted that as a good plan. It 's not being switched. I guess you sat down and drew up a plan you thought would be more convenient and may kinder additional income. At this particular hearing here we do not have an original plan that we voted on and accepted and send you forward to work out a new arrangement and as far as I 'm concerned if this plan had been submitted originally, I don't think you would have got out the door with a recommendation. DOWLING Well, as far as the change in the rear setback goes, it was done for the reason I stated. To solve the single story problem. DELANEY It solves your problem. But it created a big problem for your neighbors. I think we're talking about what you want to present to the board. I feel that your going to have an awful lot of trouble with the neighbors. I know your are. . . if you go with anything other than what the variance requires now. . . zoning regulations. DOWLING I 'd like to make a personal comment and that is that I understand there was a meeting this Sunday from several residents, I wish I had or one of our group had been invited to that meeting, we probably wouldn 't be going through all this now. DELANEY I know, if we want to put another page in the book and make it a blank one, and put CDM on it and a blank page with a crayon, we could try that, but that 's not the idea we want something that everybody will accept and live with. DOWLING O. K. lets summarize what your attitude, your comments mean. Which is that the majority of the people in this audience are against anything less than 20' . How many people are here for this particular subject, can I hear from you? LAUGHTER I am impressed. Are there any second floor Pelican Dunes owners here? I am just curious. UNIDENTIFIED MAN I am the only one here, all the rest are gone, except one. . DOWLING I 'm just curious about something because I 've never been in Pelican Dunes before. CHANGED SIDE OF RECORDING TAPE MACDONELL . . . for the City Commission to have a special zoning for this particular project. There's nothing in the zoning code, there's nothing in the zoning code that would permit development of this piece of property the way it is drawn on this map. DOWLING But there is something in the zoning code that permits us to build 28 units there, so we're asking everyone to help us figure out and try to negotiate with everyone involved, a way to reduce. . . UNCLEAR. . . to develop twelve houses. That 's all we're trying to do, and I 'm not sure what the goal is in your questions. . . UNCLEAR. . . MACDONELL You'd have to be familiar with his site plan to know what he wants to do. Yes sir, would you identify yourself please. MEISER Keith Meiser, 2317 Seminole Beach Road, president of the Bluffs Townhouse Association. I guess as much a question to the board, as to CDM, I was really unclear as far as exactly what type of request, is it a request for rezoning, a request for PUD, whether it 's a concept plan request, whether it 's a preliminary plat request, just in looking at the various sections of the code it is really unclear, I think, in talking about here tonight, it's kind of unclear in everybody's mind. . . DOWLING Well, I ' ll join you in that question, I 've asked the City and we really don't have a classification. So, we had to start somewhere by asking for what the City termed concept approval of the idea. And then they 've got to figure out some time between now and the City Commission, how we can do it. MACDONELL Mr. Meiser? MEISER I just want to add too that, I think there is a general appreciation of the elements that Mr. Dowling has made with respect to work with members of the community here, and with his willingness to agree to the setback lines. I 've seen, I think, a zerox copy of the March. . February of 87 ' proposal, and I believe that that indicates the 20' setback line and I believe that, ah, I think I would have to have the sentiments of somebody other than. . . to say that certainly. . . and Mr. Akel 's cooperative attitude in that regard. There may still be some questions and concerns in people's minds and I guess this folds back on the question of exactly what type of request it is, whether it 's a concept plan, which just seems like that 's a . . . between the developer or agent or the property owner and the administrative official as opposed to a hearing before this board. And its when it gets into a preliminary plat approval request that the matter would come before the board, but we seem to have a combination of both. But, with respect to a request for rezoning or whether it's a preliminary plat approval, I think there are some questions and concerns in people's minds and it 's obvious it 's not clear in anyone's mind exactly what the future development would be or look like, and I think you can appreciate that the to be a stairstep, what type of structures would be there. There's somethings with respect to if its a request for rezoning as a PUD, it requires that the height of the units be specified and several things that I guess no one's really knowledgeable about at this point in time to be able to address and I 'm really uncertain, and I guess I address the question to the chairman for any comments about how do we go about trying to deal with that, what seem to be legitimate concerns of the neighborhood, in terms of knowing what the future might bring. And how that plays into what the requirements of the regulations might be, depending on what type of request it really is. MACDONELL Maybe I can try to untangle it a little bit. There's no zoning classification that I know of in these books that would permit what he wants to do here. The only way he could do that, to do what he wants to do here, was if it was possible to ask for a PUD zoning. Because of the setbacks, lot sizes, that were always a violation of the minimum size of the lots in different zoning categories. He can' t ask for a PUD zoning because the ordinance says that a PUD shall be not less than 7 acres of land. It appears he's got less than 2 acres of land. The application of the letter of the agenda says that he wants the recommendation of approval of a distinctive concept, a different concept, which , all this board could do is say yes, that 's looks good and the people say its great, lets tell the city commission we want them to bring it up and call a public hearing and see if it can be approved. We don't have the authority to write an ordinance to change the zoning ordinance. We don 't have an application for a zoning change in front of us. We don't have an application for a variance in front of us. We have an application for a hearing to have Mr. Dowling present and tell us what he's trying to do and why he's trying to do it, and how it might effect you. It is not apropos at this time because there isn' t any way to do it unless there is something in the ordinance that I don't . . . It would be up to the city to say, well, we'll give you a special permit to do what you want to, we don't have any zoning ordinance to do it. I don' t think the city, Mr. Mullis, I don 't think the city could grant a permit for something that 's not covered in an ordinance, could they? Wouldn't they have to create a new ordinance to do that? MULLIS Either an ordinance or some other mechanism for accomplishing . . . I 'm not sure after hearing, and there maybe some possibility of doing it under the growth management act by developer agreement, I don't know whether it's adequate or sufficient to come under DRI provision or just what. That would be the only other thing. I was going to ask Pete, how much property, how many more situations are there in that area-would it be feasible to create a patio-home-type classification? DOWLING Yes, that is what we need. MULLIS Those kind of things, as I understand it, there are several parcels of property that, in this area, that were annexed in Seminole Beach and as it was zoned prior to it being annexed, could have done a lot of things that everybody would really be up in arms about. And of course, as you know some of them have resulted in some litigation. UNCLEAR. . . came into Atlantic Beach, and I 'd like to think that that is one of the factors that people down there wanted to come into Atlantic Beach because they had experience with Jacksonville being remote and not too interested in other matters as well. I think there are some mechanisms whereby maybe it can be done, but in that particular area, in listening to Mr. Dowling, I wonder maybe-I know some areas have what 's classified as patio homes or townhouses. MACDONELL Our ordinance only permits patio homes in PUDs. That 's the only place you can build them. MULLIS I 'm saying that may be your mechanism for modification if there is sufficient property, if there are sufficient things to consider; whether or not you could do it by a contract with some particular aspect of developing and policing and enforcing the contract by developer agreements and so forth, I 'd have to research it. MACDONELL Mr. Akel? AKEL Mike Akel. The possibility of doing it PUD by exception? It 's a PUD in exception to some of the rules. MACDONELL All I know is that we're bound by is a PUD. . . AKEL If you could recommend that the concept be approved, and that we should do it by exception, they may be inclined to do so. MACDONELL That 's really why we're here, Ladies and Gentlemen, to say whether we approve this concept, we can't do anything legally about it but tell the city, yea, we think it's a good idea, get Mr. Mullis, the attorney to tell you how to do it if you want to do it; and then the city commission would decide whether. . and what ever they did, it would be read into the minutes of the meeting, an advertised meeting-and there would be a public hearing announced and anybody could come up and put their two cents worth in. . . Mr. Stockton? STOCKTON I just want to ask Mr. Fellows a question. When was this zoning approved by the City of Atlantic Beach? RG3 or 2, I don 't. . MULLIS It was approved approximately the middle of November to be effective January the first 1987. It was approved subsequent to the election. . . SEVERAL TALKING AT ONCE-UNCLEAR DOWLING Time wise, we need some relief somehow. We're on the interest clock. And we know that 's not anyone's problem here, but I strongly urge that this somehow not get tabled tonight because of procedure or lack of procedure, or because of lack of a direction to take. I strongly urge that we get the concept approval with a recommendation, for lack of a better term, to the city commission, to create a new zoning classification for this type project or to have this project accepted as a PUD by exception. Those are the only two descriptions of a possible solution I 've been able to put together from everyone I 've talked to. DELANEY Mr. Chairman? If we, in other words, they've asked for two things, either part of the other, if we take this application. . design and we approve this request and forward it to the city council, is it out of our laps and in the city council 's lap? MACDONELL We can 't do anything about it anyway. We can endorse the request or. . . DELANEY My recommendation would be that we endorse his request and it be forwarded to the city council, on the plans-on the original plans not the amended plans- AKEL The only difference is the twenty feet. DELANEY I know exactly what the difference is. Everybody here knows exactly what the difference is. MACDONELL Are you making a motion? DELANEY Yes, I am. MACDONELL OK, is there a second to that motion? DELANEY He has to accept the motion also. That it be submitted under the original plan-if he accepts that then we can pass the motion. I make a motion that we forward it on with the original plan submitted at the meeting in March. That showed a 20' rear yard. HOWIE Let me ask you a question, Mr. Delaney, I 'm not comfortable with you making a motion, we're supposed to be impartial and you signed a petition against this. DELANEY That's true. HOWIE Then shouldn't someone else make it? DELANEY If you'd feel comfortable, yes. HOWIE Matter of fact, should you vote on this? DELANEY I would question conflict of interest. MACDONELL Go ahead Mr. Hightower. I 'm going to close this public hearing in a minute, not to shut anybody up, but we don't need to stay hear all night talking about something we can't do anything about. The hearing is before the city commission not this board. HIGHTOWER I live at 10 Seminole Landing, and I live right adjacent to the property. And I like his concept and I like the changes that he's made and if there's anything I can do to help you, I 'd certainly do it, and if the board would consider the recommendation they recommend to the city council, work to try and find some way for this concept, I 'd appreciate it. MACDONELL All right, is there anyone on this board that wishes to initiate a motion with regard to this request? . . . You must either love it or not love it. GREGG If he requests a PUD by exception, doesn't it have to come back again before us? Because he didn 't ask for the PUD exception. We've never done a PUD exception. MACDONELL All we're doing is taking a straw vote as whether we want to tell the city commission that we like the concept of what he wants to do in his March site plan, and since we don't have any ordinances that permit us to take any action, we'd like to refer it to the city commission with our blessing that they try to figure out how they're going to do it legally. GREGG All them are against it. I said, every one of them are against it. DOWLING They 're not against it now. They aren't against it at all now that we've made the concession of the 20' rear setback. I 'm sure I would have felt a lot more heat on the back of my neck - ask them if they're against it. Is anyone against what we're trying to do? GREGG The first one or the second one? MEISER If I may speak again. The motion that was made would certainly reflect I think Mr. Dowling's request and it would certainly reflect my feelings, that the submittal in late February or early March, that has been passed around that you have here, as proposed in that plan, would certainly be acceptable to me and acceptable as a concept for submission to the city commission. MACDONELL Mr. Mullis would it be out of order for the chairman to make a motion? MULLIS The chairman has the same powers as the other members of the board. MACDONELL I make a motion that this board endorse and approve the ideas CDM plans to develop this site on Seminole Road, indicated on their application dated February 27th this year, for a patio home-and or-PUD development according to the setbacks indicated on said plans. MULLIS Let the record show that you relinquish the chair to Mr. Howie for the purpose of making the motion. HOWIE The motion has been made and accepted. Does anyone want to second it. GREGG/TAPPIN I ' ll second it. HOWIE All in favor say aye. VOTE WAS UNANIMOUS - DELANEY ABSTAINED GENERAL DISCUSSION - EVERYONE TALKING AT ONCE MACDONELL I ' m asking now, in as much as you wrote a letter to the board members stating what your position was in this other suit, DELANEY Only in the suit, has nothing to do with this. MACDONELL You're not involved in any suit, for or against this petition? DELANEY Absolutely not. Has absolutely nothing to do with this. . . TAPPIN I really think there should have been a statement made at the beginning of this. . . . SEVERAL TALKING AT ONCE MACDONELL Rene', . . . Mr. Delaney has. . . has no interest in this project, for or against, he's not involved in any suit for or against it. Could we have a little bit of order please? MULLIS Possibly, we should have discussed this prior to your taking the final vote. I did not know until late this afternoon, when I got back from Miami, that one of the members of this board had written a letter to the city manager relating to some previous litigation in that Seminole Beach area. I 'm concerned because of these reasons: I, as the attorney representing the City of Atlantic Beach, and representing the City of Atlantic Beach do so at the very best of my ability that I can muster, and I 'm going to do it in a way that in the event that any member of a board, commission, or anything else, has any particular interest in any matter in litigation or anything else, I want to know about it up front-rather that before I get down to the court room and determine that. And one of the members that distributed this letter is very critical of course, on the attempt to, what I think is a legitimate-real-complaint to require the people who brought the Kelly suit, and I did not have any idea that anybody on any board-then or now-had any direct or indirect interest in that until I find this letter late this afternoon. And the only reason I bring it up is to get it up front and on the table and unequivocally clear, that as long as I am representing the City of Atlantic Beach, I will take what ever action I deem necessary to protect what I think is a legitimate legal interest for the city and it 's residents. I just want to make it clear, we've got in the 1985 Growth Management Law, an amendment, introduced by Senator Dunn, that specifically applies to growth management, zoning, subdivision regulations, and what have you, that provides that if anyone under those powers or under those procedures, brings a lawsuit that is frivolous or has any private gain to result therefrom, that the court may access all costs and attorney's fees against them. But I just want to make the board aware that those things are there, and I have no apologies-and I do apologize for not having known that somebody was involved, prior to having received the letter today, but I had no way of knowing until it came out. But I do think that if anyone has a direct or indirect personal gain or any possible conflict, as the attorney representing you, before I get before a court defending you, let me know at the outset and follow procedures set forth in Florida Statutes as far as conflicts of interests. DELANEY I ' ll clear this-it was my letter. So there's no misunderstanding who wrote this letter. MACDONELL Is his statement satisfactory or appropriate that he has no interest in this particular situation, Mr. Mullis? MULLIS Well, I want that certainly to be on the record, that not only direct or indirect interest, or does not stand to gain from it in any way, to a private undertaking or private gain of any type. DELANEY Mr. Mullis, as a property owner within 300 feet of the project I was notified of it, which is required in our ordinance, and I responded to the request for information. Take that into consideration. All homeowners, that is not a petition that was brought here today, it 's a statement by each homeowner being asked by this board or city what his feelings are towards the matter. MULLIS The only thing I can say Mr. Delaney, is that what really, in all seriousness, that probably triggers more financial disclosure, more conflicts of interests, statutes in the State of Florida, so many to the extent that it is getting difficult to get people to serve on boards are precipitated by zoning and planning boards DELANEY INTRUPTED-UNCLEAR I want to make it clear that as far as, I don't know as an individual, but as a member of a board, you are the only one that can tell me or anybody else whether or not you have a conflict of interest. DELANEY I have no feeling, no concern about that, I know what my feelings are and what my status is as far as a conflict of interest are. There are several things that I think probably, you two-if we could meet for about five minutes without clearing the air in front of everybody else, we could probably resolve a certain amount of this also. This is, this should not be aired in public as far as I 'm concerned, and for a very good reason- because I will question some of your statements. MULLIS I will disagree Mr. Delaney, that under the laws of Florida, any public's business has got to be discussed in the public or you're violating another statute. DELANEY I have requested the letter be placed on the agenda for the next meeting of the City Council. And at that time we will discuss it in full, at a public meeting, which I 'm sure it will be. If I 'm going to be heard, and I have requested to be heard already, I 'm going to be heard at this-where I was sent and advised to go by Mr. Fellows, and so I want this to be heard, where Mr. Fellows told me to take it. To the individual members of the council. MULLIS City Council? DELANEY Yea, I was told that the only ones that had any rights or rules over this, or could determine it, was-and I almost quoted in there-you have to take it to the City Council, they are the ones that want to secure the money. MULLIS Are you talking about the Kelly case? DELANEY Yes. Absolutely. I thought we were too. MULLIS I thought I read in this letter that you distributed today, that you were told by Mayor Howell and Attorney Mullis that the only place you could go was to court. I don't recall ever even talking to you about it except I told some of the people after the city had acted on it to go to court. DELANEY Mr. Fellows, do you remember the time we had the conversation about four or five in the afternoon, and I said I didn't want to sue, I don't want to bring any action, but the Mayor told me you had to go to circuit court and then you said you would best discuss it with this gentleman and then I called his office and he told me that the only thing you can do, Frank, is go to circuit court and I have somebody else in the room that you told the same thing to, there's a young lady right down there. I was told by you and she was told by. . MULLIS We didn't have to tell you. The ordinance code of the City of Atlantic Beach specifically says, that anyone that-their remedy, which is the remedy of anybody, if the City Commission and the Board of Adjustment, whatever, doesn't give them relief, the only place you can go is to circuit court, your going to have. . . DELANEY So, that is what I did. I went to the first point of relief on your advise, and I mentioned this a month ago-two months ago to you, that the Mayor advised me to sue in circuit court, and that got a laugh from the group here, and I don' t know how many remember it or not. But that statement made by me here, that the Mayor told me to go to circuit court. MULLIS Mr. Delaney, I would hate, I don't want to dispute but I don' t think anybody told you to go to circuit court, anybody that, any reasonable person, everybody in here, would have told you that your only remedy, if you wanted to get the action reversed, would be to go to circuit court. DELANEY We could go with semantics, but in other words, I was advised that the only thing could be done was to go to circuit court-Mr. Fellows told me, you told me, and Mr. Howell told me. We went to circuit court, and the circuit court wanted to know what we were doing there because they are not a board of realty adjusters, or what ever term they used. And they did not basically hear the case. MULLIS We're you at the hearing? DELANEY No sir. But my understanding is, and I haven't come in because Mr. Stockton asked me for it, very simply, the bottom line was that it was a realestate case and it should have been settled in Atlantic Beach. MULLIS Did you read the order that I sent to each member of this board on the decision entered by the judge on the Kelly case? DELANEY If you sent it I did not receive a copy and I don't know who else did. GREGG I did. I received one too. MULLIS It goes into great lengths. I sent you also a copy, as I recall, as members of the board, maybe you didn't get it, I don't know, a motion to dismiss with a long memorandum of the law. DELANEY I think my simple question is originally, we had no place to go with this case. After the Board of Adjustment made the decision, and we wanted to challenge it, I went to everybody- city official, basically, and they said that you have no appeal in this city whatsoever, you have to go to circuit court. I went to circuit court and that was my only source of review or appeal. Now, why you expect us to pay for your time and expenses when we did not have an appeal here, I ' ll never understand. I think it's the most unfair thing I 've ever seen in my life. As far as telling somebody to go some place, there's no appeal here, and the Board of Adjustment, to my knowledge was abolished in the first place because it had no place of appeal, and it was not structured the way this board is. This board, we have a, if we make a decision they can appeal it. The Board of Adjustment had no appeal, except to where I was told to go, and that was to circuit court. Now, if I, if we went further, if I went to supreme court or state court or something like that, then I could understand it. I went to the first source of relief and the only source of relief, appealed it and then we dropped it. MULLIS Let me just ask you a question. As a member of this board, if you and the other persons on the board are sued individually by an individual and it is determined that that lawsuit is frivolous and unfounded and you had to pay your attorney for attorney fees, you would not think that the other side - or the city should pay for your attorney fees? DELANEY That 's happened to us right now. I 'm saying that 's exactly what's happening to us. Because we had no appeal. If I had any other recourse, if I had recourse with the city I would have taken it. You did not allow any recourse. And so, the bottom line was, Frank, you know, hey-you can't come here, we don 't know anything about it. The Board of Adjustment passed it- you're dead. And I said, I 'm going to appeal it. So you say, OK fine, the only place you can appeal it is circuit court. If I had three other places to go, and if I ' m turned down on the first one I may create an expense, but this was not an expense created by me, it was an expense created by the Board of Adjustment. MULLIS How were you involved in this litigation, since you're bringing it out, you we're not the plaintiff in the lawsuit, you're not an attorney, so how were you involved in the litigation? DELANEY I 'm a property owner at the Bluffs. My house is immediately adjacent to the property that was going-where the variance was allowed, and I totally knew, not thought, I totally knew that it would downgrade the value of my property, and so we got-everybody in the Bluffs got together and we decided that we wanted to bring legal action. We went to an attorney and the attorney said it 's more realistic if we have one plaintiff rather than a group. So we, Keith, who was the nearest one and the most affected, he was affected the same as I was equally. We decided, fine, but lets take a shot because this is wrong what they did to us, and we're going to see if we can change it, turn it around. How was I affected? I am within 20' of the property. And the property is going to be devalued. MULLIS Then why are you saying that the city is now suing you is what I 'm driving at. DELANEY I used the term suing me, because what ever the damages are, we're going to share equally. There' ll be another assessment, three, four, or five thousand dollars, what ever you're asking for, to the property owners, taxpayers, people of the Bluffs, who felt they were wronged in the first place and want to defend themselves. You want to say something? UNIDENTIFIED WOMAN - UNCLEAR AS SEVERAL ARE TALKING AT ONCE The only recourse, . . . as far as Atlantic Beach goes is to appeal. . . the code book says you may appeal in thirty days, that doesn't mean you, that means somebody who has gotten a, or been refused a variance. It does not mean any. . . or any taxpayer or anybody. . . if you can 't remember that, I ' ll call. . . tell him again. MULLIS I remember talking to you about the thirty days, . . . you went to court. . . SEVERAL TALKING AT ONCE. UNIDENTIFIED MAN You didn 't tell her you'd turn around and sue us. SAME UNIDENTIFIED WOMAN No, you didn't say that. . as taxpayers we're paying your salary as it is. Everybody in the Bluffs is paying your salary. And in turn you're. . . making us pay double, your salary double. MULLIS Well, that would be an underpayment anyhow. LAUGHTER. In any event, what ever Atlantic Beach pays me, if the court assesses attorney 's fees against the people that brought suit, and I don 't know-the only one 1 knew brought the suit was Keith Kelly, and if what ever fees are set, that part that Atlantic Beach has paid me will go back and maybe. . . DELANEY In other words, I think you understand the circumstances now, and why this thing came about and how it came about. MULLIS It 's getting a little clearer. DELANEY And what it was is who pays for the attorney. We're victims as far I 'm concerned. Victim of a wrongful decision or decision made by a group that is now abolished, and our only recourse was to pay an attorney outside-we paid him three thousand dollars now, and I don 't take the position we lost the case and neither does my attorney. My attorney takes the position, and he said he would defend the remaining portion of this in court without any charge because he felt that he was wronged also. But the bottom line is that, we don' t want to pay any more. I called the Mayor and I called Mr. Fellows a week ago. And said, can't we drop this thing and stop this nonsense? And Mr. Fellows called me back and said, Frank, I talked to the Mayor, he tells me the only thing you can do -that the City Council members want that money. . . FELLOWS I didn't say that. DELANEY No, they insist on the debt being paid or something, the expenses being paid. FELLOWS No, I didn't say anything like that. DELANEY Alright, but you called me, you said to me-you must contact each one individually. FELLOWS I suggested that you contact the City Commission members and discuss it with them. DELANEY Yea, individually also was the word, now, I 'm not going to run around and beg these fellows not to sue me, I decided, OK fine, I 've had enough of this nonsense. Nobody wants to work with me, I 'm going around in circles chasing my tail trying to get somebody to get me a decent answer, so I went-I haven't gone public yet. I went individually. . . MACDONELL You're public right now. DELANEY It is now, that 's what I 'm saying, as of today. I went, I wrote each one a letter trying to explain exactly what happened and I feel that is an exact description of what I went through in order to try to get relief and that 's where I stand right now. That 's a description of what took place. And it didn't cover half as much as I 'd like to. MULLIS Let me get it straight. If you get sued as a member of this board, I ' ll defend and represent you just as vigorously as I am the City of Atlantic Beach now in that litigation involving Keith Kelly. And all I can say, if you can 't stand the heat don 't. . DELANEY No, no, it was not a case of heat. It was a case of a decision that we objected to and had no place else to go other than circuit court. The board was set up wrong. The state told you to change the board as far as I 've been told. They said get rid of the Board of Adjustment. That's why it 's abolished. FELLOWS That 's not true. The board was changed because we were trying to consolidate two boards into one, so that we could handle matters more expeditiously. . . DELANEY I had a City Councilman give me a little different view of it. I guess it 's in the oven now. It 's aired. . . an why they did it. MULLIS You distributed about fifty copies of the letter you wrote to Mr. Fellows and indicated not any copies to anybody on there, is the reason I didn 't bring it up. . . DELANEY I distributed a copy to all three, the Mayor, Mr. Fellows, you and the City Councilmen and the members of this board. That 's the exact number of copies that were distributed. MULLIS That doesn' t make it public. DELANEY Everybody concerned. Only if somebody wants to make like a Colonel North and hand it out. MULLIS Sorry, Mr. Chairman to have to bring this up but I thought it was necessary in view of what may or may not result down there in future litigation, so that no one gets caught by surprise. MACDONELL I trust the comments and statements that Mr. Delaney made in regard to this other situation, I 'm not sure whether he had anything to do with preparing this petition here. DELANEY I don 't believe that 's a petition. I believe what you do is send out a notice to every resident within 300' of the property and you notify them and you invite them to express an opinion. MACDONELL I don't know what his participation in the distribution of this would be a conflict of interest. MULLIS Only he can answer that. But, I think. . . MACDONELL The fact that he is an adjoining property owner and is concerned about it, I don 't know whether he should withdraw from the voting. . . DELANEY I think the bottom line is that I did not vote. I abstained. I think you did a similar thing about two months ago when you discussed your property and then it became that you and the chairman abstained from the vote also, only on the voting, not on the discussion. I make a motion that we adjourn. HOWIE I ' ll second that. The meeting was adjourned at 8:39 p. m. Louis B. MacDonell, Vice Chairman •• FORM 4 MEMORANDUM OF VOTING CONFLICT LAST NAME-FIRST NAME-MIDDLE NAME DELANEY, FRANCIS P. THE BOARD, COUNCIL,COMMISSION, AUTHORITY, OR COMMITTEE ON WHICH I SERVE ISA UNIT OF: 1ILING ADDRESS 2331 Seminole Beach Road CITY OCOUNTY OOTHERLOCALAGENCY OSTATE CITY COUNTY Atlantic Beach Florida Duval NAME OF POLITICAL SUBDIVISION OR STATE AGENCY DATE ON WHICH VOTE OCCURRED August 18, 1987 City of Atlantic Beach NAME OF BOARD,COUNCIL,COMMISSION,AUTHORITY,OR COMMITTEE Community Development Board • WHO MUST FILE FORM 4 This form is for use by any person serving on either an appointed or elected board, council, commission, authority, or committee, whether state or local,and it applies equally to members of advisory and non-advisory bodies who are faced with a voting conflict of interest. As the voting conflict requirements for public officers at the local level differ from the requirements for state officers,this form is divided into two parts: PART A is for use by persons serving on local boards(municipal,county,special tax districts,etc.),while PART B is prescribed for all other boards, i.e., those at the state level. PART C of the form contains instructions as to when and where this form must be filed. PART A VOTING CONFLICT DISCLOSURE FOR LOCAL PUBLIC OFFICERS [Required by Section 112.3143(3), Florida Statutes(Supp. 1984).] The Code of Ethics for Public Officers and Employees PROHIBITS each municipal, county, and other local public officer FROM VOTING in an official capacity upon any measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting in his official capacity upon any measure which inures to the special gain of any principal(other than a government agency as defined in Section 112.312(2), Florida Statutes) by whom he is retained. In any such case a local public officer must disclose the conflict: • (a) PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of his interest in the matter on which he is abstaining from voting;and (b) WITHIN 15 DAYS AFTER THE VOTE OCCURS by describing the nature of his interest as a public record in this part below. NOTE:Commissioners of a Community Redevelopment Agency created or designated pursuant to Section 163.356 or Section 163.357, Florida Statutes(Supp. 1984),or officers of independent special tax districts elected on a one-acre,one-vote basis are not prohibited from voting. In such cases, however, the oral and written disclosure of this part must be made. I, the undersigned local public officer, hereby disclose that on August 18 , 19 87 : (a) I abstained from voting on a matter which(check one): Xinured to my special private gain; or as the owner of the properity adjacent to Oceanside South. inured to the special gain of by whom I am retained. PAGE (b) The measure on which I abstained and the nature of my interest in the measure is as follows: Oceanside South, A single family development Owner of the properity adjacent the applicant. • August 25, 1987 • Date Filed Signature Please see PART C for instructions on when and where to file this form. PART B VOTING CONFLICT DISCLOSURE FOR STATE OFFICERS [Required by Section 112.3143(2), Florida Statutes(Supp. 1984).] Each state public officer is permitted to vote in his official capacity on any matter. However,any state officer who votes in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained is required to disclose the nature of his interest as a public record in Part B below within 15 days after the vote occurs. I, the undersigned officer of a state agency, hereby disclose that on , 19 . (a) I voted on a matter which(check one): inured to my special private gain; or inured to the special gain of . , by whom I am retain (b) The measure on which I voted and the nature of my interest in the measure is as follows: Date Filed Signature Please see PART C below for instructions on when and where to file this form. PART C FILING INSTRUCTIONS This memorandum must be filed within fifteen(15)days following the meeting during which the voting conflict occurred with the person responsible for recording the minutes of the meeting,who shall incorporate the memorandum in the meeting minutes.This form need not be filed merely to indicate the absence of a voting conflict. NOTICE:UNDER PROVISIONS OF FLORIDA STATUTES¢112.317(1983),A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF 1HE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION,REDUCTION IN SALARY,REPRIMAND,OR A CIVIL PENALTY NOT TO EXCEED$5,000.