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. Application for Concept Approval for the Development of
Approximately 2 Acres of Oceanfront Property on Seminole Road by
Mike Akel and CDM Properties - Verbatim
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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.