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