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HomeMy WebLinkAboutMinutes_Workshop_01/24/2005• VERBATIM MINUTES VILLAGE COUNCIL WORKSHOP VILLAGE OF TEQUESTA MONDAY, JANUARY 24, 2005 399 SEABROOK ROAD TEQUESTA, FLORIDA 33469 CALL TO ORDER AND ROLL CALL Mayor Pat Watkins -Good Morning everyone, I would like to welcome you to Village Council Workshop, January 24th, in the Village of Tequesta. I would want to call the meeting to order. Gwen, could we have the roll call please. Village Clerk Gwen Carlisle -yes. Mayor Watkins. Mayor Pat Watkins -Here. Village Clerk Carlisle -Vice Mayor Genco. Vice Mayor Geraldine A. Genco -Here. Village Clerk Carlisle -Council Member Resnik Council Member Edward D. Resnik -Here. Village Clerk Carlisle -Council Member Humpage Council Member Jim Humpage -Here. Village Clerk Carlisle -Council Member von Frank Council Member Russell J. von Frank -Here. Village Clerk Carlisle -Also in attendance is Village Attorney, Scott Hawkins, Village Manager, Michael R. Couzzo, Jr., Scott Hawkins Associate, Margaret Cooper, Village Clerk Gwen Carlisle, Department Heads, and also various Board and Committee Members. PLEDGE OF ALLEIGANCE Mayor Watkins -Thank you. If you will join me in the pledge of allegiance, please. APPROVAL OF AGENDA Mayor Watkins -Council Members I could entertain a motion to approve the agenda. Council Member Von Frank - So, moved. r Minutes -Village Council Workshop O 1 /24/05 Page 2 Council Member Resnik -Second. Mayor Watkins -All in favor. Council -Aye. Mayor Watkins- Opposed. Thank you. Mayor Watkins - I am going to turn the introduction over to Village Attorney Scott Hawkins. I. INTRODUCTION OF TOPICS/GENERAL OVERVIEW OF WORKSHOP Attorney Scott Hawkins -Good Morning. Council Members Resnik -Good Morning. Council Member von Frank -Good Morning. Attorney Hawkins - I would like to again introduce my partner, Margaret Cooper, who is going to help me today. • Council Member von Frank -Right, need a good woman. Attorney Hawkins -Yes, sir you're right about that, a lot of meaning there. Margaret has an expertise in working in connection with litigation involving governmental entities, so her perspective will be very useful this morning. And she's going to take the topic known as Village of Tequesta Charter discussion. We're going to follow the agenda that you have in front of you, it's the agenda that you agreed upon earlier this month. And we are going to adhere pretty closely to it because that is what we are required to do. We have two hours allocated, and the objective here is to cover these topics, which you wanted to have addressed, and for there to be a discussion to ensure that everyone has an understanding about the points that we're trying to cover. Is that clear to everybody? Council Member von Frank -Yes. Mayor Watkins -Yes. Attorney Hawkins - Ok. II. SUNSHINE LAW DISCUSSION a. Limited background Attorney Hawkins -Our first topic is going to be the Sunshine Law. Now we handed to you last week, Mr. Couzzo, distributed a memo prepared from our office, and I want to thank Sterling Clarke, who you've met, who works in our local government area. She helped me in developing these materials. The first memo we are going to talk from is the one dealing with the Florida Sunshine Law. I know everyone has sort of a base line understanding about the Sunshine Law. 2 Minutes -Village Council Workshop Ol /24/05 • Page 3 But, let me just remind everyone what the purpose of the Sunshine Law is. The Sunshine Law which was created by the Florida Legislature many, many years ago, is designed to make sure that all governmental actions, votes, decisions by governments, at all levels, occur in the sunshine, which means, in a public meeting setting. This is in contrast to the notion of decisions being made outside the sunshine, which would be anon-public meeting setting. If you look on the second page of the memo, we have encapsulated its where the core meaning here under the statute, and I will just read it into the record so everyone has got it. Its citing 286.011, and the sunshine law provides, and I will quote "all meetings of any board, or commission of any state agency or authority, or of any agency or authority of any County, Municipal corporation, such as Tequesta, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding as taken or made at such meeting". At my understanding when we were asked to just provide some overview on this, is that the Council wanted to make sure everyone on the Council understood generally the requirements of the sunshine law. In a particular, there was an issue that folks wanted to have addressed. Bust just to summarize on the sunshine law, the Village Council is a Board. It's a Board of the government, which is a Municipal corporation, the Village of Tequesta. Any action taken by this board must occur at a public meeting. There can not be meetings between individual Council members, which everybody knows, and we carefully adhere to that. There can not be meetings between the Mayor and individual Council members, where actions are discussed, or decisions are made. So that as a result of that, whenever we, a question comes to me and you want to have a discussion, I say to you this has to occur at a public meeting. An we address these matters here, and that that is not really an issue as I see it in Tequesta, because we have been carefully adhering to this for as long as I can recall, for over a decade. b. Sunshine law as it pertains to interaction between individual Council members and individual members of other Village Boards Attorney Hawkins -One of the issues that sprung up though, is what happens if Tequesta has some committees and some boards. What happens if a member of the Village Council wants to meet with a member of another board, say the Pension Board, or the Zoning Advisory Board, and the question is: Does the Sunshine Law permit a meeting between a Council member and a member of the other Board? Well at first blush, you -might think, no it can't be the case, but in point of fact, it's permitted, because you do not have a meeting occurring between members of one board, you have a meeting, and then hypothetical occurring between a member of Board A, the Council, and a member of Board B, the Pension Board. So under, under the law that is not a meeting that's in violation of the Sunshine Law. There are, there are some problems that can occur though, however, that would create a violation. Let's say hypothetically, that member from Board A is, is representing the other members of Board A and that he meets with the member of Board B, and the member of Board B is also representing the members of Board B. So in effect, what you have is one representative saying, I know how my Board is going to vote if we go this way, if you know how your Board is going to vote if this goes this way, we can have a meeting and get an issue solved. Well that is impermissible. Any time your meeting in a representative • capacity, and I haven't seen this as an issue, but this was a question that came up, and I'm just wanting to make sure you understand the outlines of law. Whenever you're having a meeting where you are appearing in a representative capacity with another Board member from another Board, you run into an issue where you could have a sunshine law violation. I've not seen it, I 3 Minutes -Village Council Workshop O1 /24/05 • Page 4 don't foresee it occurring, but I want to make sure you understand. Now that, that would not be permissible. I have never seen this Board operate that way, period. So I don't see it as an issue occurring, but I want to make sure everybody understands that. So if, the Mayor wants to meet with someone from the advisory board, she can do that, and that will not create a sunshine law violation. Never seen her do that, she's never ask me if she wants to do that, but I'm telling you that as I understand the law would be permissible. Now it would not be permissible for two members of this Board to get on the telephone and talk about an action that's going to come up at a Council meeting. It would not be permissible for the Mayor, and a member of this Board to get on the telephone and talk about an action that is going to occur. I have never seen that happen. In fact, I have seen everybody be scrupulously careful about that. But I want to make sure everybody understands it. It would not be permissible for members of this board to exchange facsimiles about something that is going to happen. Never seen it happen. But again, that would not be permissible. It would not be permissible for folks on this board to exchange emails about what's coming down the pike, in terms of getting comments and opinions. You know, technology is great, but it does create interesting conundrums. That's not really permissible either. It is permissible however though if someone wants to send out a report, for example, and said I'm looking at this report, here's a copy for you. And not inviting an opinion, and not inviting comment, I believe that is permissible in the law. My own recommendation is that these types of electronic communications should be minimized to minimize the perception of an issue. I haven't seen it as problem here, but I think that I recommend you try to minimize those types of communications to minimize the perception of a possible question of the sunshine law. And whenever you have a doubt, I recommend that you channel your communications through the Manager. Just to simplify it, frankly, and to minimize an issue. Sometimes in the Manager form of government, which is your form of government, there is a need, and this is frankly not an infrequent occurrence. There is a need for the Manager to talk to you, or for the Manager and a Staff member to talk to you. The Manager can meet with you and talk to you about issues that he foresees. That is not a sunshine law violation. Director of a Department, and the Manager together can meet with you to talk about an issue. Meet with you, when I say I mean individually, that not is not a problem. Where you have the problem is if two of you meet with the Manager at one time. I've never seen that occur, why was that a problem. He has two members of one Board meeting with the prospect of an action being taken or comment about an action that should be taken in the sunshine. That's not permissible. So does anybody have questions, I've kind of covered basis of what I understood you wanted me to cover when we reviewed this back in the early part of the month. Anybody have a question about these issues. Vice Mayor Genco - May a Council member if they are participating on another Board, either in an official capacity, or as an advisory capacity, make the suggestion that something will happen. In other words, they're making a statement that, and I am just going to use the term "Mayor" because it makes it simple. You know, "I'm the Mayor and the Village will pay for half of that". Can they do something like that? Attorney Hawkins - I don't think so. I don't, I mean I don't, I don't know what circumstances it is you have in mind, but it doesn't strike me that that would be an appropriate course of action, because if its a matter of Village funds it would be an official action. 4 Minutes -Village Council Workshop Ol /24/05 Page 5 Vice Mayor Genco - So anything that is binding, or representative of their official capacity, that's promissory would not be appropriate it. Attorney Hawkins - I think if it is phrased in terms of what's, you know, what action the Council is going to take, I don't think that would be appropriate. I think if it is phrased in terms of how I will present to Council, I think that is another situation. I don't, I don't know what the hypothetical actually is, and I haven't seen that occur. Vice Mayor Genco - No that's just, I think everybody understands what I am talking about enough that we're aware of, were we to attend a board meeting of one of our advisory boards or something like that, or we were on an advisory board, our position in that advisory board can not also represent what our duties are, or what we do as a Council member. May not promise that the Council will follow a course of action. Attorney Hawkins - Ms., Vice Mayor you are absolutely correct. Vice Mayor Genco - Ok. Thank you. Mayor Watkins -Yes. • Attorney Hawkins -Yes, Mr. Resnik. Council Member Resnik - I think I have the same question that the Vice Mayor had, but I'm going to pose it maybe a little differently. If there is a meeting of the P&Z Board, for example, and I attend the meeting, it's the public meeting, and another Council member attends the meeting, and they're discussing a subject, and I ask a question about what their goal, or what they intend to do, in public, but the other Council members are there, or I make a recommendation to them for their consideration, and another Council member is there. Now, is that a violation? Attorney Hawkins - No sir, I don't think it is. Council Member Resnik - I reason I say that is that generally speaking the results of a P&Z Board Meeting come to the Council for decision, or for final action, their a recommendation Board. But, you know, I just would like to get clarification because I understand the difference between meeting another member, two members meeting, it's not a violation. Vice Mayor Genco - I think, I would focus on the term recommendation, and in what capacity did you make that recommendation and to the extent of what that recommendation was. I think if you were asking them to follow up and provide more information, and that was your recommendation. Can you research this matter a little bit more or something like that there would not be an issue. And I also think if you are speaking at a public meeting and you get up . and you make a state, point of stating at the beginning of the meeting this expresses only my opinion, this does not express the opinion of Council. And this is my opinion something you know, that I am very grateful for you paying attention to, but the Council may have a totally different opinion on this. 5 Minutes -Village Council Workshop O 1 /24/05 . Page 6 Council Member Resnik - I'm asking the Attorney to get me his opinion. Attorney Hawkins - Mr. Resnik I do not think that would be a violation. First of all it is a public setting, nothing is occurring in private here, and it's my understanding you are appearing at that advisory board in your private capacity. And you can articulate whatever view you want. I mean if somehow, somehow there's a wink, wink going on between Council member A and Council member B, and they are trying to arrive at a conclusion on something that's going to be ultimately presented here, I could see here that is a potential issue, but I seriously question that would ever, could occur, I have never seen that. But for you to show up at a P&Z board meeting, and say this is my view, and somebody in the audience that is also on this Board, it's not a problem it's a public setting. Council Member Resnik -That's all I wanted to know. Mayor Watkins - It sounds to me like the predominate things to keep in mind, is: a) it's a public meeting, and b) that we are there as individuals and not representatives of Council, as a whole. Council Member von Frank -yes. That's the key. Vice Mayor Genco -Very well summarized. . Mayor Watkins -Anyone else questions on this particular subject. Council Member Humpage - I would like to ask. Mayor Watkins -Sure. Council Member Humpage - Mr. Hawkins when I reviewed your memo, or let me preface my remarks, by another remark. The boards that we have, I guess we have three Boards, we have the P&Z Board, we have the Board of Adjustments, and then we have the Pension Board. And I thank all of those who serve on (turn tape). But to me it's almost like we have three separate functions of these Boards. In the, on the Board of Adjustment, because it's a quasi judicial setting, is not the only right of appeal to the Board of Adjustment decision through the Circuit court. Attorney Hawkins - I believe that's right. Council Member Humpage - So the Board of Adjustment makes the determination, and if the applicant is not in favor of that, their only recourse is to go then to Circuit court. So my concern, ok, that being said, The Planning and Zoning Board is an advisory board, who brings their findings, or their opinions, to this Council. Who this Council can accept or deny, and then the applicants form of appeal is back to this Council. Attorney Hawkins -That's right. 6 Minutes -Village Council Workshop O 1 /24/05 • Page 7 Council Member Humpage - So we have a Board who we, has no method of appeal to us, and we have a Board who has another method of appeal through us. Now I'm not to familiar with the Pension Board, but the Pension Board basically does what they feel is appropriate for our retirees, and tries to keep the funding to these funds at a level that can maintain the funding. When they come up with a decision, is that decision then ratified by Council? Vice Mayor Genco -Eventually. Village Manager Couzzo -yes. Vice Mayor Genco -But, we ratify the, we adopt their minutes and accept their minutes, which includes all of the motions they have passed and recommended. Council Member Humpage -But, basically the work is done by that Board. This Council doesn't look at the accruals and say oh well that's a bad investment. We, we trust them to make the appropriate decision. Vice Mayor Genco -Yes, because it's basically their, their funds. And you know, they are basically monitoring and managing. . Council Member Humpage - Ok. Vice Mayor Genco -their own funds, so there's, there's not an issue, because there's, we have the ability of having one Council Member on that Board, but they don't have one vote out of five is not going to past something. Council Member Humpage - Ok, all right well here is my concern, my question. In your memo, the November 4th memo under the Sunshine Law, Item B here, whether the sunshine law applies to meetings between members of different boards, the short answer section Paragraph 2, under B. "The stipulation is that neither member has been delegated decision making authority to act on behalf his/her board". Mayor Watkins -Right. Council Member Humpage -But in my opinion, the people on the Planning and Zoning Board do have, they are delegated to make a decision that comes back to the Council. When that Board, they, they make a decision, and bring that recommendation to us. Vice Mayor Genco -That's, they make a recommendation. Council Member Humpage - My concern is that as a Councilmen if I come to advise board, or to the P&Z Board, and I have an issue with one of the applicants, if that's reflective in my questioning or input, the Board may find that, you know, maybe this Councilmen is not in favor of this, and it may alter that Board members' decision on the case. It almost appears to me, as well as we appreciate all the work that the Board does, perhaps the best stance for the Council to make, is not to attend the Board meetings. 7 Minutes -Village Council Workshop O 1 /24/05 Page 8 Allow the Board's to do what they do, because it does come back to us other than the Board of Adjustment. But it just appears to me, if I stand up, for instance, let me give you a quick example, we had an applicant here who applied for a variance to build a addition onto his house, and in my, and he asked me questions about the Code, I got him Articles on the code, and he really did require a variance, because his was a unique situation. And that is what the Board of Adjustment is for. He asked me if I would come to the meeting, and you know, make that statement, that I thought he was entitled to be reviewed because of this unique situation. And I declined to go, because I felt if I did render some kind of statement, it might bias the Board. So I did not go, and he was disappointed, in the fact that I didn't go. I just told him I thought in the best interest of the Village, it was well served that I didn't go. So maybe what I am saying is, I think that like it or not, the Council can only by posture, by body language, by tone of voice, infer to a Board that they are either in favor or not in favor of an issue, and perhaps influence the Board in that way. I would just assume that we let our boards do they work and come back to us. But you know if, Mr. Hawkins if I were to go to a Board of Adjustment meeting who does not come back to this Board, to this Council, and I would state to Ms. Laamanen, and her Board that, you know, I've taken a peek at this application and I think that the applicant is justified in asking for a variance. Would that not be a sunshine violation? Attorney Hawkins - Mr. Humpage I don't see it as a sunshine violation. Ms. Cooper may have a different opinion, but I don't see that as a sunshine violation. I mean, I am not aware of any law • that prohibits you as a private citizen, albeit you're elected, but if you want to go to that Board of Adjustment meeting, and articulate your view, I don't think there is any law or policy that prohibits you from doing that. That's just part of the political process. And I think the applicant, if they feel that somehow they have been prejudiced, because you have appeared and made your comments, and that may have caused some kind of improper influence, that raise that in their papers if they file it. I mean. Do you see an issue there? Mayor Watkins - I think the Vice Mayor has a question. Vice Mayor Genco - If I were you in that same position, the first thing that I would make a statement of is that I am appearing as an individual. Attorney Hawkins -Agreed. Vice Mayor Genco -And all my opinions that I am expressing here. Attorney Hawkins -Agreed. Vice Mayor Genco - Are that of an individual and not as my role as a Councilperson. Council Member Humpage -But they still know that I am on the Council. • Vice Mayor Genco - I understand that, but I think if you put that on the record, I think that then at least you have clarified which hat you have on. Because then I agree with Mr. Hawkins, I don't think we are dewed of our nghts as a resident of the Village. And as a resident of the Village you are entitled to attend meetings, you are entitled to express opinions, particularly where it's a meeting that doesn't get discussed under Council business. 8 Minutes -Village Council Workshop O 1 /24/05 Page 9 I mean, because that does not ever come up under Council business, and you have a perfect right as a resident. I mean, what if something had to do with your next-door neighbor and was actually affecting. Mayor Watkins -Your property. Vice Mayor Genco -Your property, you still have a right to go and express your opinion as a property owner. Council Member Humpage - Ok, we all. Mayor Watkins - I think Colonel Resnik has another question. Council Member Resnik - Yeah, I have the same sort of question, relative to an elected official. Once elected to an office, I was under the impression, until today, that you were an elected official, whoever you are, you're an elected official, and if you appear anywhere, even though you say, I'm Joe Blow, private citizen, you are still an elected official. And whatever you say, whether you say I am saying this on by behalf or not, It's still an elected official saying it. And if you, but you say that as I understand it, as a citizen, I can go to any meeting and declare I'm not appearing here as an elected official, I'm appearing here in my own right as a citizen, and • resident of this Village, I can say what I want to say and it won't come back as Council member, so and so, said this at the meeting, and get blown out of proportion, or whatever. But, I appreciate what the Vice Mayor said that you should be able to separate your pnvate from your public appearances, but I get concerned if in a private capacity you say something and it comes back to you, whether your private, whether you said your private or public, it comes back to you saying Council member so and so said this, even though he said it as a private citizen. So, what you are saying to me, is, it's ok if I get up there, and I say on record I'm saying this as Joe Blow, private citizen, that's it. Attorney Hawkins - Oh, Mr. Resnik, it's, you know it's a practical issue. I'm not aware of any law, and if the Manager knows of something in our code, I'm not aware of something in our code, that says you can't show up at a public meeting of the P&Z, or the zoning board, and articulate your view. You'll have three minutes and you can stay the three minutes. And sure, you're an elected official, and everybody in that room is going to know you are an elected official, when Robert Wexler, our Congressmen walks down to the city hall an articulates a view about problems with the zoning polls, I mean the voting booth, he is a Congressmen, and everybody in the room knows he is a Congressmen, but he is still allowed to come down and articulate his view, because his area has been affected. Sure you are going to have more influence, because of the office you hold, but you are entitled to articulate your view. Council Member Resnik - Well I agree with Mr. Humpage on the fact that you can stand up there and articulate your views to the Board, and no matter how you say it, it is going to effect the Board. I mean because they know their ruling is going to come back to the Council. And it • may not affect everybody, but it would probably affect somebody. I see a member of the Board out there shaking their head, and she's been a member for a longer time. Anyway, Council Member Humpage - I don't think anything affects Vi. 9 Minutes -Village Council Workshop O 1 /24/05 • Page 10 Council Member Resnik - I'm not going to discuss it any further. You are saying as a private citizen we can go, we can make our comments. Council Member Humpage - Ok, I'm good with that. Mayor Watkins -Next issue. Are we good on this? Vice Mayor Genco - No, I think he summarized that. Attorney Hawkins -Good questions this morning. Just as an aside, I had a mediation all weekend, I'm a little disgruntle this morning because I spent 20 hours in a mediation. The mediator opened up Saturday morning, and said good morning, today is not about happiness. We have gotten off to a good start. The next, I appreciate your questions, I'm teasing you. The next question, or section I want to cover deals with the Charter. III. VILLAGE OF TEQUESTA CHARTER DISCUSSION Attorney Hawkins -You may recall when we discussed this at the Council Meeting a few weeks ago, it was agreed that we would address three sections: 2.11, 3.02, and 3.03. And so at this point we are going to discuss the Charter. • a. Section 2.11 -Inference with Administrative Department b. Section 3.02 -The Village Manager-Appointment, Removal Qualifications, Vacancy c. Section 3.03 -Village Manager -Functions and Powers Attorney Hawkins - Ms. Cooper is going to lead that conversation, and I will probably have some comments, and if you have questions just bring them up. I believe Ms. Cooper has a copy of a memo that we are going to send out, give out right now. Attorney Cooper -Good Morning. I apologize about being a little bit late with this memo, but I am going, I will kind of walk you though it. It's very interesting tackling this subject because it involved with a Constitutional provisions and some very esoteric questions in interpretations. So what I tried to do is to go back and give a little history on these type of code provisions, and the type of code that you have. And I'll start. We start with the Florida Constitution and Florida Statutes. The Florida Constitution essentially talks about two types of political subdivisions in the State of Florida. There is counties and municipalities. You all, the Village of Tequesta is called a Village, but under the eyes of the constitution it is a municipality. And the Constitution distinguishes between a County and a Municipality in that a county is a political subdivision in the State of Florida, where as, a municipality, is a corporation that is established pursuant to general or special law in the State of Florida. The only constitutional limitations on the powers of a municipality is that it must exercise, first its powers only for municipal purposes, and secondly • the legislative body of a municipality must be elected. That's the only thing, that's the only limitation on you in the Constitution. Under the statutory scheme in the State of Florida, there are very few limitations on a municipality, either. It kind of is modeled a little bit after the Constitution, and it says that you are limited to conducting municipal government functions, 10 Minutes -Village Council Workshop O 1 /24/05 Page 11 performing municipal services, etc., and that you may exercise any power that you have for municipal purpose, except if it is expressly prohibited by law. So, where that leaves us is there is very, very little, or no detail constitution or statutory provision, telling you, telling a municipality how it must govern itself. And so where this, where it ends up is, it's you Charter that controls. And so long as your Charter doesn't run afoul of a constitutional provision or a statute. Where you must look to is not to the Florida Constitution, not to the Florida Statutes, but you must look internally to your Charter, which is the paramount law of your Municipality. It's your Constitution, and it gives all the powers and the structure behind the type of government that you run yourself by. Ok. With that having been said, basically in Florida, as well as around the United States, there are three forms of Municipal government that are very common, and that we see. One is aMayor-council form of government, the other... (change tape), Council-manager or city manager form of government. All right if we go to a commission or amayor-council form of government, the distinguishing feature that characterizes this type of government is that, is the delegation of all executive and legislative functions to the Commission. And by executive, I mean, the administration of the laws, the handling of Staff, the enforcement of laws, the, all of the nitty gritty that is done to exercise your municipal powers. The difference between a pure commission form of government and amayor-commission form of government is really in whose exercising most of those powers. And in a pure commission form of government usually each commissioner is delegated some authority. One commissioner will sit as the Chief Financial Officer; one will sit as the Fire Chief, police chief, excreta, excreta, excreta. • A city manager form of government is a different breed of cat altogether. There has been a lot of problems with commission run, like Aldermen type run municipalities, because the elected official may not necessary have the expertise to run the finance department, or run the fire department. And the things are different now then in the old hamlet days where the elected officials really did run the government. In a city manager form of government something that has arisen when municipalities, and planners recognized the problems and the weaknesses in a commission form of government. The distinguishing feature for a city manager form of government is that the elected official themselves, will then appoint or hire a city manager. And there is a separation powers in a city manager form of government. The elected officials, their job is to pass legislation and adopt policies, and hire the manager. After that there then is a clear separation of powers, and the manager runs the entire administration. He hires and fires the Staff, and there is to be no interference between the legislative branch of government and the administrative branch of government. The basic tenet behind the two is that the Council is a policy making body, where as the manager is the Chief Administrative Officer, who is charged with exercising discretionary functions, and the separation gives the manager free reign to administrator and carry out the policies and the general directives of the legislative and policy making body. And it frees up the management and the administration part of government from influence by constituents. Who may not necessarily like the laws, or like the policies that the Council has adopted, and may want special favors, or this or that. And it puts it in the hands of trained professional who has the education, and experience, excreta, excreta to run your municipal functions and carry out those policies. That's the difference in the two forms of government. All right I looked at the Village of Tequesta's Charter, and that is similar to and modeled after, actually they have a statutory scheme, as sort of a default provision for counties who haven't adopted charters, in default to a count administrator form of government, and your Charter practically is very similar to the Florida Statutes. It is clearly and unequivocally a city manager form of government. There's no hesitation in my mind, that that is the type of 11 • • • Minutes -Village Council Workshop O 1 /24/05 • Page 12 government that is called for under your Charter. The powers of the Council are dealt with under Article 2 of your charter, and the administration is dealt with under Article 3 of your charter. Under Article 2, dealing with the powers of the Council, there is a specific prohibition from any Council, from the Council's self, or any Council member in interfering with the administration of the Village. And in my memo I have put out the exact language found in section 2.11 of your Charter. And this provides that the Council nor any of its members shall in any manner dictate the appointment or removal of any employees. That is something the manager does. And the Council, the Council does have the power to remove the Village Manager, and may express its views and discuss everything with the Manager. Except for the purposes of inquires or investigations under the charter the Council and its members shall deal with Village employees solely through the manager, and neither the Council nor its members shall give orders to any officials, or employees, either publicly or in private. So that's a clear prohibition within your charter within, which is your constitution. Article 3 clearly vests all administrative powers in the Village manager, and the Clerk, and the other department heads as provided for in the Charter, or by vote of the Council. All right, the manager is appointed by the affirmative vote of four members, it takes four members to appoint the manager and maybe removed by like vote. He is the supervisor of the administrative affairs. His powers are very broad, under your charter, and he has the right to supervise and direct the Staff, where as you supervise and direct the Manager. All right there is a limitation on the Manager's administrative powers, the most significant one, I found in Section 3.036 of your Charter. And this provides that the Village Manager may appoint, • suspend, or remove any employee or department head. And control what they do, except as otherwise provided by Florida Law, this Charter, or personnel rules adopted by ordinance or resolution. That means the Council has the authority to determine what departments exist, so you can create the structure that you want, and to adopt personnel rules as you see fit. After that it's the Village Manager's job to administrator those polices that you have adopted and oversee those departments which you have created. So in summary, and simply stated it's the Council's function to pass legislation or ordinances to adopt general polices as a group. And then thereafter no individual Council member has authority to act on or interfere with any administrative matter. And it's the Manager's job to administrator, manage, and carry out those polices and ordinances that the Council adopts. All right, I was asked to look at the words, what does inquiry and investigation mean. Where a Council member has the authority, presumably, and we will get to that, under your Charter, to make inquiry or investigation, without having to go through the Manager. So I took a look at that. That type of prohibition, which includes a prohibition that is interference with the administrative department, is a common, common provision that is in a lot of city-manager type of structures of government. So what we did was we took the words that were contained in your Charter and put them in the computer, and ran out a computer printout of all the cases that we could find in Florida, and throughout the United States, to see how many other provisions like this were the subject of litigation, where a court has spoken to tell us what those words mean. And it found one significant case in Florida, fairly recent case that went all the way to the Florida Supreme Court, called Garvin v. Jerome. And that had almost an identical provision. It came out • of the City of Daytona Beach Shores, and there a Council Member became the subject of a Petition for Recall for allegedly violating the Charter. It is a violation of the Charter or subverting the Charter is grounds for a Petition of Recall. And this is what I found, actually as we go through this memo, you will see that, usually when the courts have addressed what do these words mean. It's usually been in the context of a Petition for Recall. Where a Council 12 Minutes -Village Council Workshop O 1 /24/05 • Page 13 Member has come close or people feel that a Council Member may be stepping over the line. And in this instance, Mrs. Garvin became the subject of a Petition for Recall based upon the accusation of "malfeasance" for violating an identical provision. The accusation was she was guilty of persistent, repeated violation of the "city manager" form of government, by giving work instructions to city employees without going through the Manager, and without city council discussion or approval, and taking unlawful, unilateral action to advertise for apart-time interim city manager. The issue was never actually decided in this Supreme Court case. What the Supreme Court decided was that there was other grounds alleged that did not constitute valid grounds for Petition of Recall. So they cancelled the Recall Petition. But in the context of this case, the Supreme Court said those allegations as to that count of the Petition of Recall stated a basis for recall. So, that the problem is if you go beyond inquiry and investigation and into the arena of intimation or direction of Staff or interference with the administration part, it could run afoul and become the subject of a Petition for Recall. All right, as I looked at these other cases, I found most of the courts had difficulty in defining a bright line distinction between what is an inquiry or investigation and what constitutes intimidation or interference. And one of the courts, the language out of the court in California, I found the very apt. And the court there said it's not easy to distinguish between inquiry and acts designed to influence a decision. In general words, such as inquiry or influence or intimidation, create different and often, different types of impressions on different minds. And as one Council Member stated it's awfully difficult for a zoning person • to distinguish between someone getting up and staying I am here as Joe Q. Public, or read between the lines, I'm the person who's going to decide the appeal on this. And it is the same type of thing when an individual Council member might be addressing something with a Staff or where you just say I am just making an inquiry or I'm just trying to ascertain some facts here. And if, are they reading that, that you are trying to influence a decision that is being made. Yes. Vice Mayor Genco - If you don't mind, because this is such a multiple faceted topic, if as you are discussing this can I ask you examples, and you tell me where that fits. Attorney Cooper -Yes. Sure. Vice Mayor Genco - Ok, and example might be is I'm at the Village Hall, and I know that my neighbor or someone has submitted a development application, or something. And I stop by, there's two ways that I can ask for a copy of that. I can either go to the Village Clerk and ask for it, or if I am at the counter getting a permit myself, or something, I can simply say, Did Joe Smith put an application in for his construction of his so and so. And they say yes. Is it possible for me to have a copy of that? That to me is basically an inquiry that I am doing as an individual not in my capacity as a Council Member. And I am not interfering, I'm not telling someone how to do their job; I'm not giving them criteria for how to do their job; and am not having a discussion on whether or not, I think they should be approving something, or disapproving something. I'm just simply doing something in a normal capacity that I would if I were a resident of Jupiter. • Attorney Cooper - I do have an answer for that. And I will give you a very short answer, and then I will develop it as we kind of go through the memo, because I think this memo answers that question. My short answer is that, I think, the better discretion in that situation would be to go 13 Minutes -Village Council Workshop Ol /24/05 • Page 14 through the Village Manager so that there can be no misinterpretation of what your intent is. And the problem is that there can be easily a perception that you are exercising improper influence. It's a matter of perception. And probably the best example is the case of In re Herbert Carl Basso, that's addressed in the memo here. Vice Mayor Genco - Ok, which is. Attorney Cooper -That's three quarters of the way down Page 5. In that case, that's a case that came out of West Virginia. And there the inquiry was that a Councilmember required of the city manager, and with my apologies to the Chief back there, the words that he used were; Why don't you fire the damn Chief of Police. Ok. All right there, the trial court, a judge said that was influencing him. Vice Mayor Genco -Absolutely. Attorney Cooper -All right, a court of appeals said no it wasn't it was just an inquiry. All right, so what I am telling you is that reasonable people can differ. Reasonable people have a different read of what you say. Vice. Mayor Genco - I agree, and that's why you have to be very careful. As I'm there getting • my pool permit, and my next door neighbor is doing something, and I just ask for a copy of his application, which really, I am already copied that there is going to be development there, and the notice says if I want information I should get it from the Planning and Zoning department. So, I'm just going in asking for a copy of something, I'm not making a statement as to what an employee will do, how they are going to do it, and I am not, because I am a Council Member frankly, I don't think it's fair to ask me to give up my rights as an individual. Attorney Cooper -Part of the problem is, you do. When you sit for election, and you are elected you are an elected official. And as an elected official, It's my opinion that it is better exercise to discretion to err on the side of caution. The same way as someone becomes an elected judge, they're all of a sudden held to a different standard. And as tough as that may be, that you say well I can't exercise all the rights that I have as a member of the general public. I think that you need to do that, I think that it is a wise, wise thing to do that so that you don't become subject of misinterpretations and criticisms. Vice Mayor Genco - I will disagree with that forever and a day, because I feel that if I do not have the right as an individual that I do not have the rights that are granted to me, under the Florida Statutes, as that individual, it is up to me to determine whether or not I am acting properly. And if I ever do act improperly then these cases are the result of that, however, you state in here there is a fine line between advocating the same, and adopting polices or ordinances and applying direct pressure, or engaging in acts designed to influence. And if I am not doing any of those things and if I am just simply making an inquiry for a public record that I have already received a notice that I am entitled to because under the Charter it says that all residents • within a 300 foot thing, are entitled. I have the right to go in and do that. And as long as I'm not telling that employee anything beyond what I am entitled to do as an individual. I mean otherwise we're giving up our rights as individual citizens, the same way that we could not attend any of these committees, or advisory boards. To listen, and see. Just our appearance of 14 Minutes -Village Council Workshop O 1 /24/05 Page 15 being there would be undue influence. So I think that you `re interpretation on that is a little, although, I can understand why you would want things to be extremely conservative. I think that we as individuals should always keep into mind, you know, as to what our actions are, and to be very clear on our intent, and our capacity in which we act. And as long as we do that the burden is on us to act appropriately. And of course we are not going to do anything that is perceived as if acting in a Council capacity, or directing somebody to go over there and clean up something or to don't do that right now, go over and do that. We would never do that. That I agree with you, you don't do stuff like that. But, if I'm in the Finance office, which I go and pay my water bill by hand frequently, because I am late most of the time, we need this electronic system. I'll be in there sometimes and I will be asked a question about something. We had a tax situation come up with Martin County, and it actually requires double bookkeeping, which is something she wasn't familiar with. I'm booking the taxes and the double asset for incoming receivable and a double .liability for payable. She never had that experience, so she asked me my opinion as a financial person which does this kind of work, what do you think. I said, well I think you need to probably talk to our accounting firm but you may want to bring up the subject of the double bookkeeping issue, because I have had that problem come up before because I deal with municipal finance and I think that that may be your solution. Have I breached something, am I not suppose to talk to that employee. Attorney Cooper -Well, the courts have had a great deal of difficulty drawing bright line distinctions. And the example you just gave me was you were responding to an inquiry from a • employee. And what my recommendation to you, so as to avoid any appearance or later accusations from someone that there is a misuse of your position as a legislative policy making person to avoid crossing that line would be in your better discretion to say these are some thoughts you need to talk to your manager about that. Vice Mayor Genco -Yes, that was also definitely part of the discussion, which she actually was planning on going to him with the information after she talked to the accountant. So I knew that was part of the process. Attorney Cooper - And I think, you know, in a lot of municipal situations, Council well intended Council Members who want to do work, and who want to help the municipality out. Want to get out there a start working, and that is fine in a commission run municipal setting. Yours is a city- manager setting. Vice Mayor Genco -But again, you know that manager is going to be apprised of whatever, she is still on research and fact gathering that he is going to be incorporated into the process. For all I know she will probably even make the statement, that I popped up and she asked the question. I mean, you know, frankly my job is to help the Village, and I'm going to do whenever I'm requested something, if it was something where she is staying well should I tell Joe to go do this, or should I change the way I book an asset, or should. No, I would never do that. But I am going to respond to somebody and again I know the difference as to how, I guess maybe I'm been doing this. I was a corporate secretary for Chemical bank. I've dealt with Sarbannes-Oxley. I've dealt with all of the other rules and regulations. I am very familiar with what my role and my capacity, and the depth of that capacity in what the influence needs to be or not be, and probably more familiar than most of the Council. So I am very, very careful, and I actually, I'm probably one of main reasons that we are having part of this discussion, is there are times when I act as a 15 Minutes -Village Council Workshop Ol /24/05 . Page 16 public citizen. When I am a public citizen, I give my records request in accordance with the policy that the Village adopted, or a public information request in July or August of 2001 to the Village Clerk. When I am acting in my capacity as a Council member I give my request to the Manager, so that he can disseminate the rest to the Council. And I even normally which I have done historically, which I am sure he has saved on my emails and requests, since 2000, 2001 I have done that. And I am not going to give up my individual rights as an individual nor am I going to have somebody tell me what my ethics. should be, because I know what they are. Mayor Watkins - That's a point though that needs clarification here, Do we give up certain rights as individual citizens, once you become an elected official? I just want everyone to understand what the rules are here, that's why we are here to discuss all this so we all understand the parameters we can work in. So we come back to the question, Could it be something simply, as simple as, if we make requests whether in your example that you gave. Do we assume, or do we have later as part of our policy and procedures just the understanding that if you answer the question or give comment, you can assume that department head or whoever the employee you spoke to will take that to the Manager. Or how do we clarify all this, so that we are all operating on the same page. Attorney Cooper -Well it's difficult to clarify all this, because there is a million situations that could arise. • Mayor Watkins -Yea. Attorney Cooper -And that's where, you know, I have tried to explain, you know, courts have dealt with a specific situation, so if a specific situation comes up that's identical to some other situation that a court has already addressed, I can give you an answer. And then the other thing that I have tried to explain is, a lot of it is a matter of perception. Just like that case, with why don't you fire the Chief of Police. One person is hearing it's an inquiry, and another person is hearing that's a directive. And so the answer to a lot of this, I have tried to craft some solutions for you. One is discretion, just like you are talking about. Council Member von Frank -That's the key. Attorney Cooper -Exercise good judgment and discretion. And it's better to err on the side of caution. That's number 1. Number 2. You as a Council if you think that there's problems in paradise, you can adopt policies as a body, as a corporate group. You can adopt polices to address issues. You can hire and fire the Manager if you are unhappy with the Manager you can get rid of him. Or you can adopt policies to direct him to do things differently then how he is handling them. All right, as it relates to your Village, I have looked at the policies, and actually I tweaked some policies and recommended some additional policies. And I think, Mr. Couzzo, have you presented them. Village Manager Couzzo -They haven't come back to us. • Attorney Cooper -There's three policies in terms of internal Staff workings that we looked at and have been working on. The first one that I think Mr. Couzzo has already adopted is a harassment retaliation and grievance procedure. If any employee feels that are being harassed or 16 Minutes -Village Council Workshop O 1 /24/05 • Page 17 retaliated against in violation of law, there's a procedure in place that has been adopted, actually there was one before, I just tweaked, just tweaked what was already there. The one policy you didn't have was awhistler-blower policy. So we wrote awhistler-blower policy, which has been adopted. Now, that's to address abuse of power, violations of law, and retaliations to reporting the same. There is a procedure now in place for that. The last area that is being worked on, I'm not really involved in this, we have a consultant working on this, and that's the employee relations council, or a peer committee to govern things that don't raise to the level of a whistle- blower or harassment. To, just to general working conditions, tensions between management and Staff, things of that nature we are working on a procedure to address that, and that is in the process of finalization. It's within this Council's prerogative to adopt whatever polices you want to adopt. The three policies, the three policies that we're working are very common this is what I see in practically every Municipal or governmental, and quite frankly a lot of private settings, that these, this is the type of structure that you need in your Village. Anything else that you want to do, that's your prerogative. You can adopt policies. Yes Vice Mayor Genco - Margaret, I am finished reading this and the one thing that wasn't addressed here, although you did address it in part of your solution, was the issue of investigation, and under what circumstances may a Council Member do an investigation, because we know a lot of this came about as a result of an investigation. • Attorney Cooper -That's kind of in the next section, so let me walk through that next section. Vice Mayor Genco - Ok. I'm sorry, I didn't, when I was looking at, fine thank you. Attorney Cooper -That's ok that sort of came up under the miscellaneous issues. Yes, sir. Council Member von Frank -Yes, Mayor just, I appreciate your thoughts, discretion, that has been my motto the four years that I have been on Council. There have been employees that have come to me and I explained to them that it's the Manager or their boss that the person would speak to. Do not come to me, I just by the grapevine, don't approach me, because we are getting into the middle. The second factor is that when we are on Council, as a Councilperson we can change laws, and we can make the laws. So when you make an inquiry per say, it's very difficult to change or delineate what am I at that time, private citizen or a member of Council. It's there, it exists, and I appreciate what Resnik was saying that we have to use discretion. The better part, if you have any questions, any thoughts, any ideas, or problem, go to the Manager, let him be the one that carves the buck. Attorney Cooper -That's your system, that's your system designed to have that exact thing. And actually one of the reasons why I had suggested an employees relation council or peer committee in addition to the harassment/retaliation procedure, and the whistle-blower procedure, was to take that monkey off your back. If somebody comes to you, and you feel, gosh I have an obligation here to do something about this, because here I am an elected official and I am getting a complaint, or this or that. That's a monkey on your back, and if you just say I can't do anything i about that because I am prohibited from interfering, that's not very satisfying to you. But if there is a procedure, a policy that has been adopted to handle the situation, you can then say to the Staff or to the constituent, there is a process, there is a structure, we're a government, we have structure, we have processes. And if there is a process in place to handle that complaint you can 17 Minutes -Village Council Workshop O 1 /24/05 . Page 18 say to the person there is a process there is a remedy to your grievance. Here it is, please go use that process. Because that way we're not running around Willy-nilly where nobody's knowing what we're doing, or I am being accused of interfering with the management or the administration of this city. And I am potentially running afoul of this Charter provision that tells me not to interfere, and what hat am I wearing, and what am I doing today. There is a procedure, there is a process, and there is a structure. And that should be your answer to them, and it takes the monkey off your back, and let's you go back to being the business of the lawmakers, the policy makers. Vice Mayor Genco -With regard to this, are you going to be, I know you made the recommendations, do you know when we're actually going to be adopting these new policies. Attorney Cooper -The harassment/retaliation grievance procedure has been adopted. The whistle-blower procedure has been adopted and implemented. And I will tell you also in both of those procedures, these are for when bad things happen, abuse of power, violation of law, retaliation and violation of law, and things of that nature. These are the bad things, not I'm got mean boss situation. But in those the procedure is the report goes to the Manager, if the complaint is about the Manager it goes to the Mayor. And then the Mayor must go to the Attorney. It's a good procedure, it has all the checks, and standard procedure, it has. • Vice Mayor Genco - So we're going to go from the employee relations council or peer committee to the Manager, and then to the Attorney, in fact. Attorney Cooper - No, no, no. The harassment/whistle-blower policy for violations of law, abuse of power, things of that nature, those are in place. Vice Mayor Genco - Ok. Attorney Cooper - If the abuse is about, say, the complaint is about Madam Clerk has abused her power. That complaint goes to the Manager. Ok. If the complaint is about the Manager has abused his power is retaliating in violation of law, is harassing me in violation of law, that complaint goes to the Mayor. The Mayor is then directed immediately to go to the Attorney. Vice Mayor Genco - Ok. Then all of this is done confidentially until the Attorney gets it, at which time it's dealt with in some kind an open. Attorney Cooper - It will all be dealt with in accordance with law. We have even, we have structured for the whistler-blower to contract with the State of Florida to have an administrative hearing officer to come down from Tallahassee to handle it. It's, It's a, It's a good structure. Council Member von Frank -Yes. Attorney Cooper - And I think it will be presented to you soon. And you will get. Vice Mayor Genco -Yeah, I've been hoping. 18 Minutes -Village Council Workshop O 1 /24/05 Page 19 Attorney Cooper - No, we, and then probably my apologizes, cause I was a little busy, so I didn't get around to finishing up final touches on these things until a couple of weeks ago. Vice Mayor Genco - No. That's ok. Great I just. Attorney Cooper - So it will be, the monkey will be off your back so to speak. All right. Council Member Humpage -Before we go to another subject, can I just, madam Mayor ask a couple of questions. I'm in listening to the Vice Mayor's comments, I to have fallen into some of these situations besides being a Council member, I'm an electrical contractor, so I get to go to the building department, pull permits, and on occasion I have had inquires made of me. And in listening to what everybody said, it appears to me that the Council needs to have some type of consensus here on these inquires. And the way that I hear folks talking is we have an issue of our inquires into what I call, for the sake of a better term, Council business. Are we making inquires which reference to agenda items, or Council business that would normally appear before us. We also get into these personal inquires, as the Vice Mayor mentioned, is the fellow next door to me putting up a fence, etc. And the last section I would think would be staff inquires, when a staff member asks us an opinion on something. In all three cases, I would think that perception and under perception primary is what we have to keep in foremost in our mind. If my neighbor asks me is the guy across the street going to put in a swimming pool, or what's going on, and the next • time you are putting a permit, ask Jeff Newell, well that becomes a decision that I have to make when I see Mr. Newell. Is my inquiry, which is basically an innocent inquiry, place me at risk. Well that's for me to decide, do I want to take that nsk. I could say to my neighbor why don't you call the building department and ask, is the answer. That other thing is I would say that if I wanted to know if he objected to calling the building department, then the next thing I could do is, I could on his behalf say to the Village Manager my neighbor wants to know what's happening with the property next door. Can you find that out forme, and get me an answer. That avoids me getting into the staff loop. So that is another option we have. And as far as staff goes, and they need to understand that in my opinion anyway, that they should not be making inquires with the Council, unless they follow procedure, and go through the chain of command. Because it becomes an issue where, you know, I talked to Councilmen Humpage and he likes the idea of this crossing, or streetlights, or kiosks for the kids. So in a, he understands now that I am in favor of that, so perhaps he should put that to the Village Manager. You know, is it ok if I ask the Council on a one-on-one basis, and I think we can avoid a lot of these things, I think some of the things we have to just step back and say, you know, we are kind of held to a different standard as a police officer is, as Pastor Beresford is. If I play golf with Pastor Beresford, and he gets a bad shot, he better just say on shucks, and Lt. Morrill has to keep in under 30. So we too have a different set of standards we have to live by because of the position we are in. And I respect all of our rights to get information on a personal basis, and all can say is, we can do that without changing the perception of our actions, if we are just a little guided. I think everybody that sits here at these tables is an honest, honorable person, and has the best, their conduct is for the best of the Village. We tend to get into little head banging contests on occasion, but I think we are all just guided by common sense, and do on to others will be ok. There are ways for us to find out • information without putting ourselves in any kind of harms way. I just wanted to through that in, Thank you. Mayor Watkins -Yes. 19 Minutes -Village Council Workshop O 1 /24/05 • Page 20 Council Member Resnik - First, I want to echo what Council Member Humpage just said. I personally believe that who I ask, if I have a request of anything from the Village, whether is be for something my neighbor is doing, whether it be something for my personal use, whatever it maybe. I'm not barred from asking, this is not to say, I can't ask for that. It's to say, if you want it ask the Manager. Let him get it for you. Don't go down and do it from this person, this person. You're not barred from asking for it, you have a perfect right to ask for anything you want, as a citizen, as a Council member, anything. Just go to him, that's what it says. Vice Mayor Genco - No, it doesn't. Council Member Resnik - I personally don't see any reason why we can't do that. Vice Mayor Genco - It doesn't say that, sir. That's your interpretation of what it says. That's the whole purpose of having this discussion. Council Member Resnik- That's my personal view. Vice Mayor Genco - I understand, but that's an important distinction, is that is doesn't say that. And I think that each individual, as yourself, we have to look at every situation in a unique • fashion, and uniquely have to deal with that situation, and if you do get to the point where you are asking, you know, hey can I have a copy of my neighbors permit, or something like that. You have to use your discretion. Is this efficient? Is this timely? Am I misrepresenting my authority, by acting as a public citizen. So you have to think of all the things that Mr. Humpage said, of all the things that our attorney's said, and after you have thought of all of those things, you can do what you feel, what you as an individual feel meets your obligation as a Councilperson, and as an individual person. But the Charter does not say what you just made the statement of. Mayor Watkins - I think once again, we are back to clarifying. I understood you saying Ms. Cooper that we should err on the side of caution. Attorney Hawkins -That was a recommendation. That is what she said. Mayor Watkins - ok. Attorney Hawkins -That's not a mandatory prohibition. Mayor Watkins - Ok, then would this perhaps be better placed, do we want to put this under the discussion we will have as a Council policy and procedure. I want, I'm trying to get to a resolution. Ok. Vice Mayor Genco - Well I think if we did make a Council policy taking away our individual . rights as a public citizen, that we should go to the State Attorney and get an opinion, because frankly, I don't think that will be upheld. Council Member von Frank -come on. 20 Minutes -Village Council Workshop O l /24/05 • Page 21 Vice Mayor Genco - But I do believe that each of us is a trustee to our residents. Council Member von Frank -That's the key. Vice Mayor Genco -And that each of us. Council Member von Frank - A resident of the Village. Vice Mayor Genco -knows, because we know, If I do something wrong, I'm going to get called down on it. I'm going to be the person that could be one of these case histories that is going to get sued. And I don't want to be there. Mayor Watkins - As we all are. Vice Mayor Genco -You know, so therefore, I am going to act appropriately. I always act appropriately in saying what I say, and prefacing it, and closing it and when it does come to something that is Council business, manager business, directly an employee. I have to think of all of those things before I open my mouth and I do something. And as long as I do something in accordance with the principles that we have discussed then I have complied with I hope what each of us will comply with individually. Attorney Hawkins -Let me make a comment. I think you are both right. The problem that I think is missing here is that you have to put yourself in the context of the employee. Let's say you are an assistant finance person and an inquiry comes from Mr. Humpage about something in regards to the budget. Well there's level one where it might be, just can you get me a copy of last year's budget, or can you get me copies of the last two years so I can make a comparison. That's one thing. Can you, another level would be, can you explain for me how we arrived at these calculations, and who got this data. The question you have to deal with is, not can I make the inquiry, but what is the signal I am sending. And how is it going to be perceived. Council Member von Frank -That's right. Attorney Hawkins -And with all due respect to everybody on this Board, if you are not thinking about that, then you are not thinking carefully enough. You have got to be thinking carefully about this, because these cases say, trial judge says, that question I'm sorry constitutes interference. The appellate court says it doesn't constitute interference. You got a year and a half of litigation, because you have a perception call. And unfortunately, that's a lot of what happens in litigation. And all I am suggesting to you, you have got to be really careful about it, because things get misunderstood very easily in this world. Vice Mayor Genco -Well. Attorney Hawkins - I just want to make sure people appreciate that. Vice Mayor Genco -All right, and at the same time if an employee were to come to us, with a simple question, is this going to be on the agenda next week? Well check with the Village Clerk, ok. Are you going, Hum, let me see, I'm going to be in your neighborhood next week doing, 21 Minutes -Village Council Workshop O 1 /24/05 • Page 22 such and such, Hum, you know, it's just general conversation. They are entitled to tell us, like something like that, just like they would a regular citizen. You know, we're going to be in your neighborhood digging up your front yard. I mean, there going to tell me next-door neighbors, they are going to tell me. Hum, Is there any prohibition on an employee communicating with us, and can they communicate with us, and should they be threatened if they were to communicate with us. What's that criteria, because Mr. Humpage also touched on that. Attorney Cooper -The employee is subject to the Management's supervision of the Manager. And if the Manager, in his wisdom thinks that he does not want employees going and disseminating some information to one Council member when the others ones aren't getting it, or taking direction from here. So there's not a structure, not a hierarchy, and not a smooth running operation. That's within his prerogative to tell his staff, I don't want you doing that. If you want to do this, this is the way I'd like you to do it. That's part of management. You don't want him to do that, then the Council, as a body, should adopt a policy to that effect. So that's just, that's just there's no law in it, that's a management decision. Vice Mayor Genco - Ok. Attorney Cooper -The law prohibits the Council members from going down and interfering. And again, what I am telling you is that what's going to prevail in the long run is good judgment and the exercise of discretion. • Council Member von Frank -That's it. Vice Mayor Genco -Thank you. Attorney Cooper -And no we don't carry it to the extreme where you can't say, Hi, how are you, and they can't. Vice Mayor Genco -Yeah, how are things going, and you know, what's your whatever. Attorney Cooper -That's one thing, but err on the side of caution, and you won't get into trouble. It's and, or you won't be the subject of criticism, any of the Council members. Just, and you do give up something by being an elected official, and you are held to a little different standard. And it's best, my advice, and our opinion we are rendering to you is to err on the side of caution, exercise good judgment, and if there is any question in your mind, if you want the information, there's any question in your mind that it might be misperceived by making what you think is an inquiry, and someone else thinks is an influence, go through the Manager. And plus, it makes (turn tape) to funnel that through to make sure the staffers aren't getting overburdened by so many people asking them to do something. Same thing in our law firm, we have a bunch of associates running around doing legal research for partners. We have to even though I am a partner in the law firm, I have to funnel my inquires through some place so we overload some poor associate, and they're there to midnight every night, and somebody else • isn't. Attorney Hawkins - I wish you had funneled a few of those early inquires today. 22 Minutes -Village Council Workshop O 1 /24/05 • Page 23 Vice Mayor Genco -One other question, in the instance where frequently the Manager is not available I would assume his responsibilities are therefore delegated, at least on a temporary basis to the Assistant Manager. Mayor Watkins - um huh (yes) Vice Mayor Genco - Ok. So we can assume that, so there's no problem with that. And then are you going to cover the issue on the investigation at the end of this? Attorney Cooper - In my opinion investigation and inquiry are the same thing. I looked them up in the dictionary. I could not find a court that said, you know, this is the way to do this. So this is Margaret Cooper's opinion - a court could differ- reasonable people could differ. I looked them up both in the, both words in the dictionary, and they both involve fact gathering. Vice Mayor Genco -Yes, yes they do. And I think that the issue comes up to an earlier issue, which, which I am very pleased to find that we are adopting these policies that we are now adopting, because I think that will alleviate some of the positions that I was put in which was extremely uncomfortable. Attorney Cooper - uh um. • Vice Mayor Genco -And, you know I mean if, and I will tell you because I was advised I did the right thing, and I know a few of the Council members felt that I overstepped my authority. A third party, actually several third parties, non-employees came to me and advised me that employees were thinking about filing lawsuits. At that point in time I didn't know what to do, and frankly I didn't believe it. And I made an inquiry of the employees that I were told, was told, I'm sorry, were filing the lawsuit, like is this true? You know, Are you really, you know, and it was affirmed. At which point I was kind of becoming very uncomfortable. And after a couple of weeks, I was starting to get really uncomfortable. And I made a phone call to Mr. Hawkins, and I said to Mr. Hawkins, you know, this is what I have been told, I, my belief is that it's true, and I don't know what to do, this is not a position that, you know, that I'm in a position to handle or deal with, and I don't know how to deal with it. And so I turned it over to Mr. Hawkins, and as a result I think we are getting some policies and procedures that will keep I think from escalating to that point, but I had a duty to do that. And I fulfilled by duty in doing that, and I don't know if you realize it that was my duty as a Councilperson to get involved in, in pushing that to whatever level I had to push it to, to get action. And you know, I hope that you understand. Mayor Watkins -Excuse me, I just want to be sure. Had you, had you had the discussion of whatever had come to you, to the manager first or you went directly to Mr. Hawkins. Vice Mayor Genco - I have learned when you are talking about matters of litigation, and this is my experience, because I do it on a daily, weekly, yearly basis, now for almost 25 years. If you • have somebody who is threatening a lawsuit, and if it in fact the allegations turn out to be true, the worst thing that you can do is to turn it over to the person that they are alleging did the bad thing to them, because then it really gets into a very ugly situation. So you have to seek a third party, which is somebody like our attorney. 23 Minutes -Village Council Workshop O 1 /24/05 • Page 24 Mayor Watkins -But by question is, is that a violation. Vice Mayor Genco - So it doesn't blow up. Mayor Watkins - I'm just trying to get the Charter down pat. And according to the Charter, the way I see it, it would be the Manager. Attorney Hawkins -Frankly, what I think occurs there is very close to what the structure is we're essentially implementing through this slight modification that has been made. Vice Mayor Genco - We didn't have, yeah. Attorney Hawkins -It's essentially, if you just back calculate, Vice Mayor receives some concerns they related to issues of, that could potentially bear on litigation. Important issue, she called me and said I'd like to, you know, I made an inquiry essentially, I have heard these things, and I'd like to find what about what we should do. I reflected, I consulted with Mr. Randolph, and Ms. Cooper. We represent five governments in South Florida, and we talked about this. I then talked to the Vice Mayor, and we agreed to talk to the Manager. I talked to the Manager, it was agreed we should look further into it, we did. And as an outgrowth of that, and I think the process unfolded correctly, in hindsight we look at it, and as an outgrowth of that we had some, • we had a consultant involved to help us with some communication issues. And we have some new policies that have been formed and I don't think those issues are there any longer. I think the process was pretty healthy. And I think if I had been the Vice Mayor and received those inquires, I probably would have done the same thing. Today, if that inquiry comes up under our, the new system we are implementing, It's going to come to you Mayor, and you are going to call me, so there's not much of a material difference. Mayor Watkins -And my only function at that point, whoever would be Mayor at the time, is to call you. We have no, I just want to be very clear of it, the Mayor's making no decisions on anything, just make the phone call. Attorney Hawkins -That's right. Vice Mayor Genco -Right, yeah, we did, see the problem was we didn't have that policy then, and now that we have the policy, we're actually, which Scott just said, we're doing literally what I did, without having a policy. But now you are the point person, or whoever is Mayor. Mayor Watkins - Or whoever is there, yeah. Vice Mayor Genco - In your chair will be the point person. Council Member Humpage - In bringing this section to fruition, I wonder if I could just follow up on a comment the Mayor made. In your memo, that we just received, one of the things that you stated is: The Village Charter allows for inquiry and investigation. There is no procedure laid out in the Charter of how an inquiry is made. So rather than beat this to death right now, because Councilman von Frank has stated he is not going to run for office, we are going to have 24 Minutes -Village Council Workshop O 1 /24/05 • Page 25 a new Councilman. So I think the Mayor's suggestion, when we get to the Summary of Procedural Changes that I would like to see that issue taken up under the Procedural Changes. Because then we would be able to get a consensus of this Council on how an inquiry, an investigation evolves. I understand that we have a process now, with the Mayor may be in charge, the Village Manager may be in charge. But I also know we have a process where that if one of our Councilmen is approached by a person, I see no problem why this Council also could not be in closed session to see if there is a need to have a procedural inquiry or investigation. I mean, the five of us should have some say in this. Attorney Hawkins -Well, Mr. Humpage, the notion of a closed executive session is certainly available, and we have on a couple of instances in the last year, we have availed ourselves that following the statute very carefully where pending or threatened litigation was the situation. So that is, you are correct, under Chapter 286 that is an option for you. Fortunately, in the instances that the Vice Mayor was referring to a moment ago, we did not get to the point that was warranted, but we could have. And you know, as your legal officer, working with my colleagues, I was endeavoring to render guidance and to look into the issues further to ensure the issues were addressed properly. Council Member Humpage - I am not trying to critique what occurred. All I am saying I would like that to be something that is considered, and that under procedural changes, that the five of us can revisit this. And whom ever the new Councilmen is, so that we are all in the loop. • Attorney Hawkins - I think on the issue of procedures I think the points that have been made by you and the Mayor are very, very good. I think the proper way to address that question is that at the next Council meeting when you decide on the Workshop, you can't decide that today, but you can decide then that if that is a topic you want covered you can decide to have it covered at the appropriate time once your Board has been reconstituted following the March election. Vice Mayor Genco -Isn't it true though that we can only have aclosed-door session either pending, or as a result of litigation and that that is the only situation that we can do that. Or something I believe has to do with the Union. Attorney Hawkins -You can have aclosed-door session where you got pending litigation, or threatening litigation. Vice Mayor Genco -Right. Attorney Hawkins -There is, there is a difference of opinion there, it's my view that where you have threatened litigation you can have aclosed-door session. Council Member Humpage -Right. Vice Mayor Genco - I wouldn't you know you are the attorney. I know I have to do it with basically with litigation. Attorney Hawkins -But, but, but the purpose of that meeting is solely confined to addressing. 25 Minutes -Village Council Workshop O1 /24/05 .Page 26 Vice Mayor Genco -Right. Attorney Hawkins -Issues of strategy. Council Member von Frank -Right. Vice Mayor Genco -Right. Attorney Hawkins -and reporting on the way things are. Vice Mayor Genco -Which we, yeah we have done that so I agree. Attorney Hawkins - We have been very, very careful on that. Vice Mayor Genco - I understand. Council Member Humpage - Ok. Mayor Watkins -Are we, we, just as a reminder it's 11:30, we have a 12:00 time certain. so I am trying to make sure everybody gets their questions in, but just a reminder of the time. Any other. • Attorney Hawkins -Shall we move to the third section of our agenda today. Mayor Watkins -Are there any other questions before we leave this. Council Member Humpage - No. Council Member Resnik - No. Mayor Watkins - Ok. Alright. Attorney Hawkins - Ok, as part of my segue to this next section, I want to thank Ms. Cooper for her work. It's a very complicated area we just talked about, so thank you. Vice Mayor Genco -Yeah. Attorney Hawkins -And she is my partner, not just my assistant. IV. DEVELOPMENT PROCESS Attorney Hawkins - Ok, I just want to preference my remarks on the Development process. I am not a zoning guy. I am not a zoning official, and I'm not a building official. So if you want to know the ins and outs of your zoning code, you are not going to be real pleased with my • answers. I will try to help you there, but I'm, I don't know the code to that level. Nor did I understand the assignment to be, to know the code to that level. Let's talk about what I can share with you. You asked us to look at these various article sections. And they have been identified under Roman numeral IV, Parts A and B. I have got them laid out in the memo distributed to you 26 Minutes -Village Council Workshop O 1 /24/05 • Page 27 on Friday, in the order requested, and we can march through those, and I can answer your questions to the extent you have them. The first part of the memo just provides some general comments regarding the situation where a landowner, or developer, or someone looking to acquire property for development wishes to take steps to change, amend, supplement, modify, or appeal the zoning ordinance. A. General Comments 1. Article II, changes and amendments. Attorney Hawkins -The first part of the memo just provides some general comments regarding the situation where a landowner, or developer, or someone looking to acquire property for development wishes to take steps to change, amend, supplement, modify, or appeal the zoning ordinance. I want to emphasis one point here. The zoning ordinances as I see it, and Ms. Cooper has litigated this area a lot so she may have some comments, it's the law, it's the law that controls what is going to be presented. Council Member von Frank - uh huh. Attorney Hawkins -With regard to the subject development that the developer is seeking to have • permitted. It's the law, if they want to change the law, they have to go through the proper procedures to change the law. Council Member von Frank -Right. Attorney Hawkins - What I have laid out here is basically the procedure that has to be followed for changing the law. If you are going to change the text of the code, you are changing the law. If you are going to change, you know, density, that's changing the law. If you are going to change height, that's changing the law. And it's pretty well laid out in your code. And it can only happen this way. Ah, just very quickly, this first section sort of lays out the basic features of what normally happens. You got an application that the Department of Community Development makes available to the landowner, the application is submitted, then there is a Staff report, called for under Article 2, where the Department of Community Affairs processes on what's been requested. At that juncture the landowner can choose to go forward in the process, or can choose not to go forward in the process. Ultimately, if he chooses to go forward in the process, it makes its way to the Planning and Zoning Advisory Board, which is the entity you created this past year. That Board functions on the request. It either goes to that Board with a Staff report that recommends approval, or that recommends against approval, or that's neutral. In most cases you are going to get either positive or a negative in what I see. And then if they want to take it further it comes to the Council. And the Council ultimately will be able to vote on whether they want to change the law. Again, you changing density, you get to function on that. You change the height, you get to function on that. You changing the text, you get to function on that. You changes uses, you get to function on that. I want to hung on one thing that you need to understand. You have two basic planning overlays here. You have your zoning code, and you have your Comp Plan. The Comp Plan lays out, and I am not an expert in this, I have litigated in this a little bit. Your Comp Plan has to be approved by the State, and I think it is Chapter 166, and it's a fairly arcane 27 Minutes -Village Council Workshop O l /24/05 Page 28 process you have to go through. But it lays out in broad terms what's going to happen in this corner of the property, the Village, what's going to happen in this corner. And then it is the code that articulates more precisely the permitted uses within those broader planned areas. A development has to be consistent with both the Comp Plan and the Code. And if the development, if a proposed development is not consistent with the Comp Plan it can't be permitted. And they're are going to have to get the plan amendment amended if they want to get a permit to build whatever the issue is. Everybody understand that. Council Member von Frank - uh huh. Vice Mayor Genco -yeah. Council Member Resnik - uh huh. Attorney Hawkins -That's not your function. You don't amend your Comp Plan, you get to vote on it. You can approve a proposed amendment, but it doesn't become final until it goes to the Department of Community Affairs at the State. Council Member Humpage -Right. Vice Mayor Genco -Right. • Attorney Hawkins -Let's move real briefly to Roman numeral two. 2. Article VI, Division 2 (78-171 thru 78-180). 3. Article IX, Divisions 2 and 3. (78-331 thru 78-369) Attorney Hawkins -All Roman numeral two does is articulate the various zoning districts. If you want to know what R1-A means, you can look at your code and read what R1-A means. But basically we have laid out the nine different use designations available under your code. Site Plan review, Roman numeral three is that the process whereby the Staff functions on what is actually being proposed. It is available where you got a use of permit, it's required where you got a special exception use that has been approved. It's required where you got a (PCD) Planned Commercial Development, and it is required for all subdivisions. You got to have site plan review. Let me give you a layman's view. Site plan review is where you are sitting around and you got your planning person, your building person, and you got your developer, and maybe you got the developer's consultant. And you are saying ok, where are the driveways going to go here, Mr. Von Frank. You know, where exactly is the footprint. Where's the stairwell going to go, that's where you go and you kind of lay out the plan. And it has got to meet all the requirements of your Plan, your setbacks, your density, your height, all those things. That's where it is articulated on the footprint. And it follows a fairly, fairly orderly process, you have apre- application meeting, there is a filing fee application that has to be submitted, meetings with the Building Official and Zoning Community Development Department, and it makes it all the way • through. Only when the site plan is approved is when you issue the building permit. So at the time, at the time approval comes to you that is your last say. Say, in fact we had a meeting here about a year ago, and the question was, I forget the development, but it was up here in the north end. Parking, and there was a lot of questions, show me where the parking is going to go. Mr. 28 Minutes -Village Council Workshop O 1 /24/05 Page 29 Newell do we have adequate parking. Yes we do. Well how close is it. These are all site plan questions. They were proper questions that came from you. The other day the developer said, you know, I can go back and fix that. I forget who asked the question. I can go back and tweak that, I can put parking over here, Mr. Newell will that work. I think so. You get to do all those things, but only when it is right. That make sense, does everybody understand that function. You don't want, you don't deal with that until you're way down the process. Council Member von Frank -Excellent. Attorney Hawkins -Special Exceptions, the code is very specific in terms of when Special Exceptions are permitted. The criteria for special exceptions are under they start in 78-261 of your zoning code. I know all of you have books, and they lay them out. The criteria is defined in 362, and you have seven criteria there, and then there have to be specific findings under 363. There are twelve findings that have to be reached. Those findings have to be established in order for a special exception to be granted. If you want to understand what they are, you just go to the code. Mayor Watkins -Alright. • Attorney Hawkins - Am I answering your questions, because I am trying to breeze through this, we have 15 more minutes. Council Member Humpage -Yeah. Vice Mayor Genco - I have a couple of things to point out, but I will let you get through. Attorney Hawkins - Ok. Variances, there was, you were asked to look at very broadly at what a variance is. First I want to define variances under your code. Your code is your law on this subject. If you look at 78-4 of your zoning code, Chapter 78 is your zoning code in the books that you all have. Vice Mayor Genco - 78-61. Attorney Hawkins -Yeah, but if you look, first of all, you look, you're right Vice Mayor, if you look at 78-4 you got definitions. Vice Mayor Genco -Right, definitions. Attorney Hawkins -Definitions again defining your law in variances. A variance is this: It's a variation from the zoning district, from the district requirements of this Chapter, which is granted • by the Zoning Board of Adjustments, were such variance will not be contrary to public interest, and where owing to conditions. peculiar to the physical characteristics of that particular property and not the result of the actions of the owner, agent, or applicant, a literal enforcement of this chapter would result, key words here, unnecessary and undue hardship. It's a pretty high standard. 29 Minutes -Village Council Workshop O 1 /24/05 • Page 30 Council Member von Frank -yes. Attorney Hawkins - It's a situation sometimes where you see, you have oddly shaped parcels, and they're just that way, because the way titles have passed over time. And from my experience here, and this is true from what I have seen at other governments. Variances are granted sparingly, but the landowner has to show a hardship. Now that's something that. Council Member Humpage -Change the Board too. Attorney Hawkins -Now that is something the Board of Adjustment functions on, because the Board of Adjustment is adjusting its code. And I believe Mr. Humpage earned his stripes on the Board of Adjustment. Council Member von Frank -yes. Attorney Hawkins -That's why he is grumbling. Would you say they are granted sparingly? Vice Mayor Genco -Yeah, and that only happens. Council Member Humpage - Because I used to say to the Board if they don't match all the • criteria, not 5 of the 7,b not 4 of the 7, if they don't meet all of the criteria then the answer is no. Vice Mayor Genco -And isn't it correct also, that the Board of Adjustment can only hear the variances for R1-A, and R-1. Council Member Humpage -Yes. Vice Mayor Genco - So anything that's commercial, mixed use, or otherwise does not go to the Board of Adjustment. Council Member Humpage -Right. Attorney Hawkins -That's exactly right. That's what it said in 78-61. Vice Mayor Genco -Right. Attorney Hawkins -Right. The Village Council disclaimed from that Section, The Village Council shall consider appeals and variances relating to all other properties not within the jurisdiction of the Board of Adjustments, that would be other than R1-A and R-1, which is single family dwelling districts. Vice Mayor Genco - Ok, Are you through? • B. Article 8 -Plan Commercial Developments 1. General Discussion of Section 78-251 through 78-258 30 Minutes -Village Council Workshop O 1 /24/05 • Page 31 2. General Comments Regarding Plan Commercial Developments Attorney Hawkins -Under very briefly, under Planned Commercial Developments this is a scheme under your code that permits some flexibility. Vice Mayor Genco -But the flexibility is qualified under the Special Exception process. Attorney Hawkins -That's exactly right. Council Member Humpage -Right. Attorney Hawkins -It's some flexibility, it's not a great deal of flexibility, but it is a little bit more than just when you stuck within a district. Vice Mayor Genco -Right. Attorney Hawkins -I've isolated what I think key restrictions on Page 6. This is, this is typically the zoning designation that's sought when there's landowners or developers trying to do a rather large-scale commercial enterprise, which you haven't had that much here, but you probably will down the stream. You have height restrictions, pretty severe, maximum four stories or 50 feet, • you have to have a minimum of 3 acre plot, your density is limited to 18 units per gross acre, and you have area limitations. Those are pretty strict requirements, even though you have some flexibility on how you configure the site. You still have these, these parameters that have to be followed. Council Member von Frank -Under what section is that? C. Vice Mayor Genco -Division 2. Article 7 (e). Council Member Humpage - 8-6 Council Member von Frank - No, it's. Vice Mayor Genco -Article 9. Council Member von Frank -But it's a C. Attorney Hawkins -It's. Council Member von Frank -zoning. Attorney Hawkins -It's 78-251. • Council Member von Frank -What's the zoning on it, because we have two, you said four stories. Attorney Hawkins - C-2. 31 Minutes -Village Council Workshop O 1 /24/05 • Page 32 Council Member Humpage - C-2. Council Member von Frank - C-2. Oh, then the other what then the six-story is C-l. Alright, ok, I'm sorry. Vice Mayor Genco -And that's the general, that's the criteria for PCD. The PCD must go through the Special exception process, under Article 9, and that is a two-step process. Division 2 is the site plan review, and Division 3 is the conceptual review, which is something that we have been arguing about for a long time. Council Member Humpage -This all boils down to August. Vice Mayor Genco -And the legitimate thing is our law says, when we have a PCD we are suppose to do a conceptual review, and that hasn't happened. And to, the big part of the reason is so that we don't end up with the process of putting the cart in front of the horse. When we received the application for Atlantis, we received two applications: one was a site plan review, one was a petition to change our zoning code. Those are separate. Attorney Hawkins -They are. . Vice Mayor Genco -And the site plan review should have been bumped up, to either a simultaneously concurrent review of site plan and Division 3 of Article 9, but it wasn't, it was handled as just a site plan. And that was part of the process that kind of fell apart, because now they have come back and they realized, they need to do the special exception review under Division 3, and they have applied for that. That gives us the opportunity as the Council of taking a look at what they are requesting, and basically making a determination when you are seeing something that so far out of compliance with our law, whether or not we wanted to devote staff time, the legal time, our time, and everybody else's time in taking this any further. And what ended up happening instead is we started to handle this as a site plan review, and for some reason they were tying this to the petition for the zoning change, which again is our responsibility, and by the way there is an overlap in our code that needs to get corrected. The Planning and Zoning Board has been appointed the LPA, the Local Planning Authority, and yet the Council is also appointed as the Local Planning Authority. And if you go back to the August and October meetings that the Village Council had in 2003, you see very clearly that they were given the authority that was delegated from us to do the investigation, and make the recommendation, but they were never appointed the LPA. So that was a mistake in the opening part of the Planning and Zoning Advisory Board would it be law. Attorney Hawkins -I'll look at that issue of the conflict. On the point you are making, and this workshop is not about the Atlantis project, but I do want to say, I think you are correct in terms of the site plan review process being handled out of sequence. And when I got involved, to take a look, I said time out. You shouldn't be looking at our driveway until I get the code changed. And • so it stopped. 32 Minutes -Village Council Workshop O 1 /24/05 • Page 33 Vice Mayor Genco -Well no, I think we are all aware of it now. And actually when you are looking at the site plan review vs. the conceptual review that we do under Division 2, it's much less burdensome. You're not looking at the level of detail. Attorney Hawkins -Conceptual review? Vice Mayor Genco -yes, that you have to look at. And the whole idea is to save everybody the expense and time. I mean, once you get to the point where you are doing architectural, engineering, and traffic studies, I mean you have invested a lot of money for something. While a conceptual review is really just addressing concepts, and you only need to have some sketchy information. And if you look back at Casa del Sol that was the last one that was handled, you know, in accordance with our code process. And that went through, God, what in two meetings, three meetings. It went through very smoothly, because they already knew ahead of time what they were going to be able to spend the time in developing, and what they had to do as far as concurrency, etc. Now this particular project did Atlantis with a zoning code and comprehensive plan amendment, which that requires. Attorney Hawkins -Well that was a view, there was never a final determination that a comp plan amendment was required. It was a concern of mine. Vice Mayor Genco - I, I truly believe from dealing with this, because we're not affecting, the Atlantis project does not affect just their six-acre site plan, their Atlantis project originally affected the property all the way over to where Broadview was, north County Line Road, and south to Village Boulevard, and on the west by Dixie Highway. Mayor Watkins - In what capacity? Vice Mayor Genco - It was, they wanted to change an entire zoning area to meet the 12 story, and the higher density, and stuff like that. The minute you get out of an individual, which is I think where some of our planner got mixed up with spot zoning. Spot zoning is a term I don't like to use, but when you have a person who has total control of the piece of land, which he is asking you for a zoning change on, you can kind of consider that a spot zoning, but really it's a mischaracterization of the term, because spot zoning is really not allowed. But when you have a person who comes in and they are asking you to rezone property that they don't even own, that's a, that's a big issue. And because our comprehensive plan has designated what our C-2 area is and we would be changing the C-2 area, my dealings with, when I worked for the State of Florida, was that that would require a comp plan amendment. And then, unless something new Attorney Hawkins -Well, that was my opinion. You and I are in agreement. But not everybody shared that opinion. Council Member Von Frank - um Vice Mayor Genco - I, uh Attorney Hawkins -But that was the opinion that I saw 33 Minutes -Village Council Workshop 01 /24/05 • Page 34 Vice Mayor Genco -Because, well, the reason being, and I can only give you my experience in the past, is when you're changing the dwelling unit density that is the main concern that the state has, and usually that's what really kicks in a lot of your comp plan. An example was, we had a situation in Miami years back, where we were looking at something as a R-3 or R-4 and did not realize until afterwards that it was actually a condominium that would have had 1100 people. So right away, as soon as we changed that density due to the population, it became a comp plan amendment in that one site. And it is my understanding is that density has a lot to do with comp plan amendments as well as use where you're having regulated uses like gas stations and things like that, but you know, I'll leave that to somebody who specializes in comp plans. But it's my opinion that this would probably need a comp plan amendment and it's my opinion as a council member because, although they have now changed the amount of land that they want rezoned, it still is a much greater area than what they own that Attorney Hawkins - We shouldn't be talking about a developer's land when there's no pending application, Council Member Von Frank - uh huh Council Member Resnik -- Right Attorney Hawkins -and there is no pending application. Vice Mayor Genco - Oh, yes, there is. Attorney Hawkins - I'm not aware of one. Council Member Resnik -They withdrew it. Vice Mayor Genco - We have, the one we received, I put it in here, October 4th. And we have not Attorney Hawkins -- I thought they had withdrawn that, I'm sorry Council Member Genco - No. Council Member Resnik -Yeah. Village Manager Couzzo -They've withdrawn the initial application. Vice Mayor Genco -There's nothing in the file that says they withdrew it, so we, we need to get something in the file, `cause Village Manager Couzzo -Well, okay, then I think Attorney Hawkins - Well, I believe the developer has advised us of that 34 Minutes -Village Council Workshop O 1 /24/05 Page 35 Village Manager Couzzo -Exactly. We don't, we don't have a written document in the file to that effect. You're right. Vice Mayor Genco - Oh, we definitely, see, that, that was another part of the process. A lot of the things that we do in our zoning ordinances are on time frames. An example would be, that an application is made by the 15th of the month; by the 30th of the month it has to be scheduled to go before blank and blank. If we, meaning the Village, or if the developer needs to change those time frames, that should be done in writing. And it should be done with the, what's the word for it? The affirmation, confirmation of both, agreement of both parties, that they will do that. That's not something that we've been doing. I think we need to do that. It's just important for us to CYA ourselves on this. Attorney Hawkins -- I agree. I didn't realize it wasn't being done. Vice Mayor Genco - No. We're not, we're not doing that. I also feel that if we have a petition for a zoning change that encompasses more than just the area owned by the individual, that I'd like to see us as a Council have some kind of a public discussion on that; because I think that it reaches further than just the business of that developer and I think that the public should know about it. Then, I also, you know, hope that you now understand that, you know, Division Two of our current law states that when you have a PCD and it's a special exception that we do a • conceptual review. I mean that's, that's our, that's our law. If you have another development come in that's, even an R-1 or an R-2, and it's done in phases, it's required to come in for a conceptual review. And, and the whole reason for this is for continuity, to avoid problems for the developer, and to avoid problems for us. And, you know, all I'm asking is that we follow our law. Mayor Watkins -Just one moment. The Manager wanted to make a comment. Village Manager Couzzo -It's just in regard to the Vice Mayor's comment. If we had followed exactly the procedures that are laid out in the code, what would have happened was the Chief Building Official would have notified the developer that their proposal-their conceptual proposal-was not in compliance with the Village's code. Right there, the developer would have had two options. Vice Mayor Genco -Right. Council Member Humpage -Right. Village Manager Couzzo -One, modify the application and proceed with an application that did comply with the code, or secondly, the only other step he's got is to propose an amendment and relief to this Council. At that time I think, as we spoke the other day, what happens is, you immediately, if they choose that path, see the conceptuals. Vice Mayor Genco -Right. Village Manager Couzzo - So the process would have happened really quickly. 35 Minutes -Village Council Workshop O 1 /24/05 Page 36 Vice Mayor Genco -yes, thank you Village Manager Couzzo -- And that's, that's the process we are embracing. Vice Mayor Genco -Yeah Village Manager Couzzo - If a developer comes in and it is not in compliance with the code- the Chief Building Official and I have spoken at great length on thiswe agree totally that he will tell them that it is not in compliance, he will give them the sections of the code, he will show them where it's not in compliance, he will show them the section as to what their remedies for relief are, and then it's incumbent upon them to choose whether to modify the plan. or to, or to go forward to the Council Vice Mayor Genco -Right. Village Manager Couzzo -- and seek an amendment to the code. That's where we are. Vice Mayor Genco -- I, I really, I appreciate that, because that is what I've been saying, like all along, and I, I've just, maybe I didn't take the time to explain it, because we never did really want to put it on the Council agenda, and I didn't want to get into, you know, going oh, section • so and so, you know, but this is what I've been saying for like six, six months now. And, you know. And that's why I felt that the procedures weren't being followed. Mayor Watkins - We have a process in place, and that was the whole point of the discussion was to reiterate that and if we could go back to step one with the pre-application meeting with the Building Official, right there, you know, the code wasn't being met. That was clear. Vice Mayor Genco -Right. Mayor Watkins -- So. Col. Resnik, you have a comment? Council Member Resnik -Just for clarification, for my mind. I read this and I saw conceptual review as, of the overall development if phased. I looked for a definition of that. Conceptual if phased. You know, we have a, it says site plan review is required. We've got an outline for the site plan review. Step by step. For a conceptual review there was nothing. I didn't see anything for Vice Mayor Genco -Actually, it's, it's Council Member Resnik -- conceptual review as far as step by step Vice Mayor Genco -yeah Council Member Resnik -Let me finish-and I would, I would assume that in deference to what we had considered before, a conceptual review here would be a review of the developer's proposal that, that falls within the requirement for conceptual review, that is, if phased. We say here, we say something else here. But this just says, if phased. Which means to me, he is doing 36 Minutes -Village Council Workshop O 1 /24/05 Page 37 part one of the review this year, and part one two years lateror something like that. I don't understand what that means in terms of why we have a conceptual review. Village Manager Couzzo - I think that Council Member Resnik -What we just said a minute ago was that if the developer chooses the alternative to come back to the Council, if he's turned down on his request, because it's not in sync with the code Vice Mayor Genco -and you're Council Member Resnik -- and he adopts a plan to come back to the Council, for consideration of an exception, or a variance or whatever-we're calling that a conceptual review. I call that a, a Council review of a developer's request for exception or variance or change to the code to permit him to come forward. Vice Mayor Genco -It's two-fold, Col. The first part of the code that you looked at that said a conceptual review if phased, is basically having to do with a tract of land that usually is residential. We haven't had one come up yet in the Village that was commercial. And what they've come in, what will end up happening, is, you have a piece of land, and they plan on all of • the roads being this way, they plan on all of the buildings being this way, they plan on all of the drainage system being this way, and that is the way the whole site is supposed to interact. But what happens sometimes after they do phase one, they decide that they have to kind of tweak phase two and they have to make some changes. So, although we reviewed the whole development, phase one and two, we gave a concept for the entire development, and they're going to come back for a site plan review on phase two because they've changed something. Council Member Humpage - uh-huh Vice Mayor Genco -Like, we actually had that happen with the Spear brothers project. Village Manager Couzzo -That's right. Vice Mayor Genco -where they changed the drainage system. They came back, they found out that they could put two more houses because of the way that the roads ended up going in, and that's the kind of system that that one's talking about. The PCD, the special exception, that's a totally different kind of conceptual review, and it does spell out exactly what they submit to us, and it doesn't require the coneurrency and it doesn't require a lot of the other things. What it does is it gives us a chance to look at, because the PCD district is flexible. It gives us an opportunity of looking as to what that use will be in that PCD district. Okay. You can have mixed commercial, mixed commercial and residential, or a combination of, perhaps just residential. And we don't know until we get an application what it would be. So that's why we do a conceptual. And that conceptual gives us an opportunity to look at surrounding area. They • should give us an idea-the applicant should bring to us what they think the needs of the community are. Mayor Watkins -You're talking about conceptual review by Council 37 Minutes -Village Council Workshop O 1 /24/05 • Page 38 Vice Mayor Genco -Yes Mayor Watkins -Just to clarify. Council Member Von Frank -- uh-huh Vice Mayor Genco -- Yes. They, they should give us an idea of what they feel the needs of the community are. If they're doing something why they feel this is going to benefit the community and if they want a change or get a variance in our code, then it would be a lot of information they would have to give us. And so that's, that's a different kind of conceptual review. Council Member Resnik - I understand what you're talking about. But I don't see that in here. That's what I'm trying to understand, where where it's located. Vice Mayor Genco - It, I can, you want me to tell you what pages they're on? Council Member Resnik -Maybe I'm missing it somewhere. Village Clerk -- I have to change the tapes, so excuse me while I take this down. . Mayor Watkins -- What? Village Clerk - I need to change the tapes. Excuse me while I take this down. Be back in just one second. Mayor Watkins -- Okay Vice Mayor Genco - 78-361 Council Member Humpage - Wait a minute-the tape's not working here. Tape 3: Vice Mayor Genco - If you look down at the bottom of the little page, Village Clerk -Thank you. Vice Mayor Genco -- Look at the CD78:89. Council Member Von Frank - uh huh Council Member Resnik - I'm looking at 78 251, • Vice Mayor Genco -Okay. It's Council Member Resnik -What page we on? Right. 38 Minutes -Village Council Workshop O 1 /24/05 • Page 39 Vice Mayor Genco -What are your page numbers? Mayor Watkins - 78:89. What code section are you on? Vice Mayor Genco - Oh. It's Section 78-368 and it's found on page CD78:89. Councilmember Humpage -Keep going, keep going -ten more pages Councilmember Resnik - I don't have it Councilmember Humpage -You do now Councilmember Resnik - Okay. I knew I should have brought my code with me. Vice Mayor Genco - Yeah, I did, because it's back and forth Councilmember Resnik - 78? Mayor Watkins - 78:89 • Vice Mayor Genco -Yeah. And if you look at 78-368 you can read that. That was item A, and if you turn the page, which is 78:90, you will see item number B and it reads, "A petitioner seeking special exception approval shall submit a development concept plan. And then underneath are items 1 throughl6, saying what that concept plan is composed of. Village Manager Couzzo -Just again, to restate the administration and staff's position on this, we are going to take a literal interpretation of your code. I think in doing so, that will hopefully eliminate if not extremely limit the number of situations. Again, when it doesn't comply with the code, what we will do is tell the developer that. The developer needs to make a decision. If in fact, again, they want to amend the code, they will come to you at whatever stage they feel appropriate. And I think you're absolutely right-at that time they're going to give you the whole concept, they're going to tell you why it's beneficial, what it's going to do for the Village, and everything else. Which I think accomplishes, what you were trying to do was get that conceptual presentation, but it will stop much sooner for us. Vice Mayor Genco -And, and, and an FYI: If somebody comes in to a concept, for a conceptual approval to us, and they're giving us the presentation, and they can see from our feedback that most likely they are not going to get an approval, I believe, and we, we can seek legal opinion on this, they can then withdraw the application so that they're not prejudiced with the time frames for resubmitting it. • Attorney Hawkins -They can. Vice Mayor Genco -- You know. So I would, you know, say that, you know, also would be a good thing. And for your information, Scott, that LPA section was 62-32 and 22-53. 39 Minutes -Village Council Workshop O 1 /24/05 Page 40 Attorney Hawkins -That was 22-53? Vice Mayor Genco -Yes. Attorney Hawkins -and 62-32? Vice Mayor Genco -Yes, and those are the overlap. And I think it was 62-32 that was incorrect if you look at the minutes from the Council meeting. Mayor Watkins -Are we good? One comment, one comment. Councilmember Resnik - I'd just like to make sure I understand this. We were talking about conceptual presentations from developers in general for any commercial development, we wanted to hear a conceptual presentation prior to it going to staff. That's what we originally were talking about. Now what we're talking about is a developer comes to staff with a proposed development, staff looks at it, it exceeds code, staff says to him you can't do ityou've got to modify it or you've got to go to Council. Councilmember Humpage -Right. Councilmember Resnik - At that time, at that time then we will hear if he elects to do that, we will hear this presentation. Vice Mayor Genco - If he, if he, Mayor Watkins -Right Councilmember Resnik - He will already have gone through the process of presenting it to staff, being told hey, doesn't meet the code, go back and Vice Mayor Genco -Yeah. That's still pre-app. I , I consider that still pre-app. Mayor Watkins -That's correct. Village Manager Couzzo - It is pre-app. It is definitely pre-app, because he is going to come to you and look for some kind of, as you very accurately portrayed it, he's going to look for some kind of indication from this body as to whether it's beneficial for him to move on or not. Councilmember Resnik - So we really don't need a new policy, for, to hear conceptual presentations Mayor Watkins - We just follow the law. • Councilmember Von Frank -That's the very, the very point I'm trying to make. That's the reason why I was kept out of the loop here. Because when he called me, I says, excuse me, I don't know who you are, but you want, oh, you're coming up with some kind of a plan? I said 40 Minutes -Village Council Workshop O 1 /24/05 Page 41 have you gone to, who? He says, no one. Well, then, why the hell are you talking to me? I said talk to these people first, then come to me. Mayor Watkins - We have a process. Right. Councilmember Von Frank -That's the reason why I was shut out of the loop. Attorney Hawkins -- You did the right thing, though, because he was trying to lobby you. Councilmember Von Frank -Sure Attorney Hawkins -The developer tried to lobby you, Councilmember Von Frank -Exactly, you hit the nail Attorney Hawkins - it went through the system, the system took awhile, took longer you probably wanted it to, but that's what happens. We have exhausted our two hours. Councilmember Humpage - Can I just say one thing and then we can close? I've been a good guy. I think we all agree. And I think that you were not here at the August meeting. And in reflecting on the Vice Mayor Genco -- Here are the notes, yeah. Councilmember Humpage -and in reflecting on the August meeting when we decided not to listen to presentations, the problem occurred because the representative for the developer wanted to do the show before anything else occurred. And if you look at what we said in the August minutes on page 4, and then you look at his application, he made application after the Council minutes where we denied him coming forward. So we are on the right page. Mayor Watkins -Right. Councilmember Humpage -- Once you are shut down, then you can come and see us. Mayor Watkins -Exactly. Councilmember Humpage -- So I think maybe we misunderstood Mayor Watkins - It has to go to Community Development first Councilmember Humpage -`Cause I was the character who said that I was tired of these presentations because what they're looking for is free advice or what do we want to see. We don't want to see that. You put it in, you get denied, then come and see us. Councilmember Von Frank - Uh huh Councilmember Humpage - So, okay. Thank you. 41 Minutes -Village Council Workshop O 1 /24/05 • Page 42 Mayor Watkins -Our time is exhausted. I just wanted to thank you both for the input and the information, Sterling, also, it was very helpful to have this all concise and easy to read before the meeting. Are we all happy with the results, I mean, we've got all of our questions out; we're good with the process? Councilmember Von Frank - LJh huh Mayor Watkins -- I will apologize to the publicwe are out of time, however, if anybody had a comment I believe Council would indulge you. Has anyone? And hearing none, the next Council meeting is February 10th here, regular time. Vice Mayor Genco -Are we also as the end result of this going to develop some formal procedures now? Councilmember Humpage -Yes Councilmember Resnik -uh huh Attorney Hawkins -- I think that's an issue that you have to deal with when we call a workshop meeting. • Vice Mayor Genco - I'm just saying, is that, okay. Mayor Watkins - I think that's our intent. Vice Mayor Genco - Yeah, I just wanted to make, yeah. Okay. Village Manager Couzzo - but you're not referring to a development procedure? Vice Mayor Genco - No, I'm just, you know, administratively having a set of, a checklist. Village Manager Couzzo -Okay. Mayor Watkins -Right. That will come under policies and procedures, correct? Attorney Hawkins -yes. Mayor Watkins -- I believe we will set that as an agenda item for that workshop, which will be following the election, in case you have two new council members. Vice Mayor Genco -Okay. • Mayor Watkins -- Okay? Vice Mayor Genco -Okay. 42 Minutes -Village Council Workshop O l /24/05 • Page 43 Mayor Watkins -- I appreciate all of you giving your time. I think it was very constructive. think we got a lot done, and I will see you on the 10th, if not before. I need a motion to adjourn. Councilmember Humpage -- So move. Vice Mayor Genco -- Motion madesecond. Councilmember Resnik -second. Mayor Watkins -All in favor? Council -Aye Mayor Watkins -Opposed? Thank you very much. r `~°l ~ wen Carlisle, Village Clerk