12-11-2006 - Workshop
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CITY COUNCIL OF EDGEWATER
WORKSHOP
DECEMBER 11, 2006
6:30 P.M.
COMMUNITY CENTER
MINUTES
CALL TO ORDER
Mayor Thomas called the Workshop to order at 6:30 p.m. in
the Community Center.
ROLL CALL
Mayor Michael Thomas
Councilwoman Debra Rogers
Councilman Dennis Vincenzi
Councilwoman Harriet Rhodes
Councilwoman Judith Lichter
City Manager Jon Williams
City Clerk Susan Wadsworth
City Attorney Paul Rosenthal
Present
Present
Present
Present
Present
Present
Present
Present
INVOCATION, PLEDGE OF ALLEGIANCE
There was a silent invocation and pledge of allegiance to
the Flag.
MEETING PURPOSE
The purpose of the meeting was to discuss the effects of
the Charter Amendment limiting building heights.
City Manager Williams informed Council that they were
meeting to discuss the effects of the height amendment
limiting structures over 35 feet and to bring forward some
of the early effects that they are experiencing and look
for some guidance as it relates to the determination of
vested rights and conflicts that exist with the Land
Development Code and calculation of heights. He referred
to Article I, Section 101A describing the contents of the
35' height amendment. They were centering specifically on
Item B that addressed building heights and the calculation
of building heights, Item C, D & E, virtually every section
as it relates to the building heights.
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City Manager Williams put together two bullet points of
goals of interest and they were broad in discussion. The
first one being, they were looking for direction for
determination of vested rights from Council and to discuss
amendments to the Land Development Code that address vested
rights and the calculation of height. He also provided a
list of projects that have approved RPUD agreements with
maximum height exceeding 35' and the projects that were
approved as well. Building heights and calculations had
changed and he had a slide that graphically demonstrated
the conflicts that exist between the Charter Amendment and
the Land Development Code. He went on to describe the
conflicts that exist with how they calculate as well as the
conflicts between the Charter Amendment and the Land
Development Code that they needed some direction on how to
deal with. He further commented on issues they were having
as it related to vested rights and projects that are
ongoing in ParkTowne. They issued a stop work order based
on the ambiguous language that existed within the amendment
and have met with representatives of that company and have
reached a mutual agreement where they can continue to
proceed while they seek this discussion up until the point
they begin to violate the Charter Amendment. He then
turned the meeting over to City Attorney Rosenthal.
City Attorney Rosenthal commented on a package of documents
his office received that influence the discussion. They
received a letter from Attorney Chris Cloney, who
represents Zeller and Greene within ParkTowne, basically
requesting a vested rights determination. They have also
filed a complaint against the City for a declaratory
judgment, which essentially seeks to invalidate the Charter
Amendment on a variety of grounds, one of which is
inconsistency with the City's Comprehensive Plan. They
also received an e-mail from Barney Dillard of River Colony
talking about potential Bert Harris Act claims which are
basically provisions where the City can be held financially
liable for impacts on private property. They attached a
July 2006 Attorney General's Opinion, which says a Charter
amendment dealing with height does fall within the realm of
governmental action for purposes of the Bert Harris Act.
Not saying that there is liability but it is the opinion of
the Attorney General that this does fall within the realm
of the Bert Harris Act. As a side-bar note, they may be
aware that at the same time the City of Titusville was also
considering a Charter Amendment restricting height which
was very similar and in some cases the language was exactly
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the same as the one considered in Edgewater. That Charter
Amendment did not pass in Titusville however, prior to the
election there litigation was brought against the City of
Titusville and the judge issued a limited temporary
injunction which basically said if the Charter Amendment
passed, the court was automatically in joining enforcement
of the Charter Amendment and one of the basis for a
preliminary injunction is basically the determination by
the court that there was a likelihood that the plaintiff
would succeed. In that particular case the judge had ruled
in the temporary injunction that he thought there was a
likelihood the plaintiff would succeed and invalidating
their Charter Amendment on the basis of inconsistency with
the Comprehensive Plan.
City Attorney Rosenthal said the suit filed against
Edgewater raised a number of similar issues and allegations
that were raised in the Titusville case. This was on a
preliminary basis so there was no final ruling of the court
there because that was mooted. The one that is certain is
they are going to be in court and ultimately a judge is
going to be ruling on a variety of the issues which they
are facing. In looking this over with City staff, he also
felt that in terms of looking at the particular Charter
Amendment these are not questions which necessarily lend
themselves to Edgewater's Attorney or any Attorney standing
up there and saying here is the answer. They really can't
do that in many cases because they aren't the ones who
wrote it. They aren't the ones who put the language
together. It makes it certainly much more difficult to
provide interpretations and at the same time, he thought
there was a concern on the part of staff that we're
sensitive when there are multiple interpretations about the
direction of any interpretations that staff might provide
without having pretty clear guidance from the elected
officials in terms of what they want them to do. They
could provide interpretations which are very liberal in
terms of protecting private property rights and the like
but then they don't want to find out they've taken that
direction and there is a feeling on the part of the public
who voted for this or on the part of the elected body as to
what is staff doing. At the same time they could take some
very conservative approaches in terms of reading this but
then they don't want to find out that the elected body does
not believe that that is in the best interest of the
community.
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City Attorney Rosenthal recommended that the best way to
deal with this was through the Land Development Code
process by adopting some amendments to the Land Development
Code which essentially implement the Charter provisions,
deal with the issues City Manager Williams had been talking
about in terms of potential conflicts provides the policy
direction so that staff knows that they are following the
Council's policy direction. The other benefit of that
would be this would be a process that would open that up to
public hearings before the Planning & Zoning Board, public
hearings before the City Council, to receive some type of
input as to whether or not folks think they are following
the intent of the voters or not following the intent of the
voters.
City Attorney Rosenthal identified some specific areas that
needed to be addressed. These are not issues where they
expect any kind of definitive answers tonight. He thought
this was the beginning of a dialogue and thought process
and the reason for the workshop was because there are so
many projects out there and people have so many questions,
they didn't want to wait until after the first of the year
to get this thought process going. One of them was in
their Charter this talks about buildings. They have a
definition of building in the Land Development Code, which
a building is any structure designed or built for the
support, enclosure, shelter or protection of persons,
animals, chattels, or moveable property of any kind,
basically a structure that you put something in. They
arguably have some flexibility to deal with the definition
of building. What is and what isn't a building? Are they
going to use the definition in the Land Development Code or
are they going to come up with a different definition for
purposes of the Charter Amendment? There is no definition
of building in the Charter Amendment. Building height is
really one of the more difficult ones because they have a
specific definition of building height in their Land
Development Code and now they have a new definition of
building height in the Charter. He informed staff until
they amend the Land Development Code that requires a two-
tier analysis as to whether a building can be constructed
and what the height is. They would do an analysis under
the Land Development Code just like they have always done.
The definition of height in the Land Development Code and
does it comply or not comply with the Land Development
Code. If it doesn't comply, then it can't be built because
the Land Development Code prohibits it. If it meets the
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height requirements, falls within the parameters of the
Land Development Code, then they have a second test. Does
it exceed the maximum height under the Charter? Something
could be 34' high under the Land Development Code but when
they apply the Charter definition, it might exceed the 35'
height because they have a different definition and a
different base for calculation. At this point until they
amend the Land Development Code, they really have to go
through that two-step process, which is confusing to the
public and to people who are trying to process plans before
the City. What they have to be careful about is that if
they adopt the definition in the Charter Amendment, they
may need to increase some of the numbers in the Land
Development Code because otherwise, for example, if they
left the maximum height in a residential district at 26',
adopted the Charter Amendment definition, they might not be
able to build to that same 26' height anymore. They would
need to have some mathematical calculations as to how
things work under a variety of circumstances. He knew that
staff was concerned about working with two different
definitions, both of which are lawfully enforceable at this
point in time and the Land Development Code controls unless
there was a conflict with the Charter in which case, the
Charter then controls.
City Attorney Rosenthal commented on an area in ParkTowne
where he feels they have conflict right now, which is
structures not intended for human occupancy. The Charter
Amendment has a very specific list of structures not
intended for human occupancy and says the height limits do
not apply to those. The question is, is that a specific
list from which they cannot deviate or is it illustrative
of the types of things to which the Charter Amendment
doesn't apply? That is a question staff can't answer but
as elected officials he believed they should answer and
have the authority to answer in the Land Development Code.
He commented on the problem in ParkTowne with the concrete
batch plant, which obviously is not intended for human
occupancy but is not one of the specified items listed in
the Charter. The staff really isn't in the position to
make the decision without some dialogue with the Council as
to whether or not that is exempt or not exempt. This is a
clear area where the staff needs some direction from
Council, whether those types of decisions would be
controversial or not, he guessed they really wouldn't know
until they started to make those decisions and see what the
public thinks about them. That's one area, that in their
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opinion, they have a lot of flexibility. The other area is
Section D. Again talking about vested rights. One of
their concerns prior to the adoption of this was a thought
of as drafted, the proposed Charter Amendment placed
exclusive jurisdiction for determination of vested rights
in the courts. That's one potential approach. At the same
time, they do have a Land Development Code which does have
provisions in it now for making vested rights
determinations but that's an application process. They
have to submit an application and it has to be reviewed and
evaluated and it's very fact specific. Some alternatives
are to follow that process, to establish a separate process
and procedure for establishing vested rights, to issue a
decree, so to speak, through a Land Development Code
Amendment, which says if they have a development agreement
prior to this date it's vested, period. All of that was
within their discretion. It's difficult as a lawyer to
tell them if they take any of these options, they're not
going to get sued for anything they might do. The main
benefit they see from pursuing this through the Land
Development Code is at the end of the day, the Council as
the elected body will have established specific rules and
procedures for the implementation of the Charter Amendment
and if anybody disagrees with that, they can take the
Council to court, challenge their Land Development Code and
they can get in a judicial proceeding then an ultimate
decision of a court which he thought would give them some
deference to the viewpoint of the elected body. That would
be one mechanism of providing some certainty and of course
if nobody challenges the Land Development Code amendments,
then that also provides some certainty.
City Attorney Rosenthal further stated they have a piece of
pending litigation saying it doesn't matter what they all
do because they're asking a court to throw the whole thing
out. Normally they'd say they are going to defend that to
the hilt and support the Charter provision but he thought
it was unusual circumstances with the Council as the
elected body not having drafted it, that there need to be
direction to staff and to their lawyers in terms of how
they want that lawsuit defended because for example, one
possible outcome of litigation is a settlement agreement,
which is purely within the prerogative of the elected body.
If they are in court and have a settlement agreement, they
might reach a settlement agreement less by the courts,
which some people might think do an injustice to the
Charter Amendments. They've already told them they at
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least have one ruling out of Titusville on a temporary
injunction basis which suggest there may be issues
associated with this so their staff and their lawyers are
sensitive to make sure they know what they want done so
that they can pursue that accordingly. It's a lot of
issues floating out there he didn't think would be resolved
tonight or in one meeting but those are the issues out
there and obviously they have citizens out there who are
concerned about how all of this affects their project they
want to do with respect to which as the Council's lawyer,
he couldn't give staff a legal opinion that said, sure go
ahead and issue the permits, no problem.
Mayor Thomas was going to let Council talk and then hear
from the builders and citizens.
Councilwoman Lichter asked City Attorney Rosenthal if he
knew anything about Ormond Beach who had a similar problem
going on. The height was much higher but there was a
limit. She thought they were going to court with it and
wanted to know if he knew of the results.
City Attorney Rosenthal said that he hadn't followed Ormond
Beach, mainly Titusville. They have looked at that and
generally when they go to court it's in an adversarial
proceeding and to go to a judge in a non-adversarial
proceeding where there is nobody advocating a contrary
position, they don't have an easy mechanism to walk in and
say your honor what do you think they should do. It's
typically folks sue you or there is some type of
adversarial proceedings. They could ask for an Attorney
General's opinion. The Attorney General at least likes
them to stake out what their position is on the questions
they are being asked. That's an area where they'd want to
know what position the Council wanted their lawyers to
advocate on the specific issue.
Councilwoman Lichter had a question about the word
"building" itself, especially as it applied to the
Industrial Park. She asked if they would consider a "lift"
a building? City Attorney Rosenthal said he would defer to
staff as to how they've been applying the Land Development
Code.
Councilwoman Lichter stated in other words, there was a
particular retail store that wanted to settle here and is
now thinking not to because of a problem about the "lift"
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exceeding a particular height and she was wondering if they
were calling that living space.
City Manager Williams asked if she was referring to "lift"
as in loading docks. Councilwoman Lichter informed him
yes. City Manager Williams stated that would fall under
the calculation of the building height and that would fall
under the main roof of the building. For instance, if a
builder came in and they were requesting 50' and they
needed that height to accommodate their loading docks, then
that's how they would calculate it.
Councilwoman Lichter asked City Attorney Rosenthal if there
are certain buildings that are excluded from the type of
language that has been accepted. Are there certain
structures, like church steeples or other things that are
excluded? City Attorney Rosenthal informed her yes,
spires, bell towers, flag poles, water tanks, fire towers,
cooling towers, ventilators, chimneys, antennas, radio and
television towers, elevator hoists, hoist ways.
Councilwoman Lichter stated she was thinking about the
business aspect of it because that particular second
Charter question wasn't really totally fought by the group
that wrote the first one so she was very much concerned and
more concerned about any area. There are definite
questions about the height of houses. Where do they start?
If the road is low, do they measure from there? If it's
raised do they measure from there? She was particularly
concerned about the loss of money for the City and tax
money in terms of businesses that was why she was asking
the questions she was asking in terms of "lifts". City
Attorney Rosenthal stated that right now they only have one
definition of "building" and that's the one in the Land
Development Code. If they want to write an article on the
height amendment and they want to have a definition of
"building" which applies only to the height amendment,
that's within their prerogative. Councilwoman Lichter
asked if it would be going against the results. City
Attorney Rosenthal said that would be a potential subject
of debate.
Councilwoman Lichter stated the last area because it was
such a confusing situation, is vested rights. Particularly
a gentleman came to the last meeting and was told he could
build up to this point and then can't, where he has worked
with staff for over a year, has laid out money, has gotten
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permits, etc., that tremendously bothers her in terms of
bad business and the reputation of this community when they
don't honor the investment the man has already started.
How can they have such a wide variance in vested rights?
Isn't there a definition of when his vested rights started?
City Attorney Rosenthal replied that it was all very fact
specific as a general rule. His inclination is that the
type of situation she described in some of them that they
had complaints about probably ultimately would be vested,
either by the courts or by some type of action. Let's say
for example somebody brought a lawsuit to try and establish
vested rights. One of the first things they might do is go
to the court and say they agree and there's a judicial
determination of vested rights with respect to a specific
project. His discussion with City Manager Williams had
been if they're in court and the staff is going to go in
and say they agree, what's the process by which that
decision is made as to whether they agree or don't agree.
Typically in litigation those decisions aren't made by
staff. They are made by the Council in terms of whether to
agree or disagree. Another approach would be to put
something in their ordinance. This specific case they have
pending, if they wanted to stipulate with them that they
have vested rights and give the judge a proposed order, it
might reach a quick settlement of the lawsuit without going
to court whether the ordinance is valid or invalid. That's
without any specific evaluation of the facts as to whether
they are entitled or not entitled to vested rights as a
general reaction but there's no doubt that there's numerous
projects in the City who have taken actions that cannot by
any Charter Amendment be taken away in terms of entitlement
but he didn't know that they were in a position to
generalize and his view is that whatever generalization
should be done, should be done by the elected body and not
by staff.
Councilwoman Rogers stated the first thing that concerned
her was that the group that put this on the ballot went out
and did what they were able to do and what they were
legally able to do. The citizens voted on it. They didn't
decide it and now they have lawsuits coming to the City.
Here they are obligated and here they are liable for this
but yet the citizens of the City voted for this. Doesn't
that hold any water? Does that not protect the City in any
fashion? They as the City Council did not make this
decision.
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City Attorney Rosenthal responded by stating the City has
the law established the procedure for the citizen
initiative that they then adopted a resolution pursuant to
that law, which they were required to do and there really
isn't a distinction. That actually goes in some parts to
the Attorney General opinion which he included in their
packet as to whether a Charter Amendment dealing with
height is a governmental action under the Bert Harris Act.
At least the Attorney General thought it was.
Councilwoman Rogers asked how they were going to protect
themselves in the future for something like this. It's
like they have to go back to the Charter. City Attorney
Rosenthal informed her they couldn't. If the citizens pass
an initiative and if that initiative is lawful, until the
court says it's not, the answer is they are bound by it.
Now they could respond to a lawsuit challenging the
validity of the Charter Amendment by saying they agree and
actually, initially in Titusville, the Council in that case
because it was a citizen initiative, took a neutral
position. They said they didn't have a position on this.
It hadn't been voted on yet and they could let the ECARD
group or some other group intervene, not opposed and let
them carry the burden. That's really how they view the
whole issue from their standpoint as an elected official
and whether or not the City should be spending resources to
defend this. If they say don't spend resources to defend
it, the answer would be there would be a default judgment
against the City and the court would rule the Charter
Amendment is invalid and that would be the end of the
discussion.
Councilwoman Rogers asked what they would do in the future
to protect themselves from things like this because there
could be other potential petitions out there and they don't
have any protection. City Attorney Rosenthal stated they
didn't have any protection. Legislature just did that by
putting the amendment on the ballot, which passed calling
for the 60% vote in part. On the State level, they have
some provisions on State Constitutional Amendments to in
effect get advisory rulings from the Florida Supreme Court
but there's really not much they can do. If they think
it's bad, they could advocate and try and urge their
constituents not to vote for it.
Councilwoman Rogers felt that wasn't right. They voted for
something and look where they are at. She didn't agree
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with this and she thinks that they would have some leg to
stand on other than having to use taxpayers' money to pay
for these fees. The next item pertained to the Land
Development Code and the Charter regarding the definition
of building. The definition of building is in the Land
Development Code. It is not in the Charter. The exception
that the City put together on the ballot, to the 35'
height, was really trying to address commercial,
industrial, mixed use and public/semi-public and then it
also talked about that mixed use with the 70% residential.
City Manager Williams said that was removed from the
sentence. Councilwoman Rogers believed that if that would
have been spelled out line by line, each item, commercial,
industrial, public/semi-public, in other words, if every
one of those would have been broken down, they would have
had more success in having it pass. It was too ambiguous
and if they recalled back in the minutes that's exactly
what she said. It wasn't going to pass. At this point
with what they've been advised, if they went into the
Charter and defined "building" and defined it in such a way
what they were trying to do with the exception by saying a
building would be anything other than those various items,
perhaps they could get that to pass.
City Attorney Rosenthal believed that would be too much of
a stretch on what a building is, particularly in the light
of the defeat of the amendment creating those exceptions.
His thought was more on there was a difference between a
building and a structure and things like a concrete silo
and things that people don't live in, that they may have
something broader than the specific list that's in the
Charter but he didn't think they could say for example, a
hospital isn't a building. He felt if they did that and
were challenged, the court's going to rule that that's not
a reasonable statement. Councilwoman Rogers stated they
could say that a building is something that is occupied.
If they changed and added the definition and did something
in that way, they could achieve what it was that they tried
to achieve with the exception. City Attorney Rosenthal
stated possibly. Councilwoman Rogers stated yes. They've
got to start somewhere.
Councilwoman Rhodes stated that the voters voted on this
and it passed and it's their job to implement it and she
thinks they should do that as quickly as possible. She
agreed with City Attorney Rosenthal but why wouldn't she,
they pay him a million dollars. She should agree with him,
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right, that they need to set the policy and do it in a
timely fashion and then if it is disputed at some point,
then let them sue them and then let's go from there. She
doesn't see spending a lot of taxpayer dollars fighting
suits that maybe they can prevent. Anybody that has a PUD
with the City, that's a no-brainer, that's vested in her
opinion. A PUD is a contract and they signed it and they
signed it in good faith and they should uphold that. The
other issues, a definition of a "building", whatever they
are going to do, let's do it so these people could get on
with their lives, get on with their building and not
inconvenience them because time is money and they are
wasting a lot of money. That's her opinion right now.
Maybe after hearing some other things she might change it.
Councilman Vincenzi stated that it was a difficult issue
for sure and the one side of it is that the amendment was
put out there and the voters did approve it so there was no
question that they do want it. They could also argue that
not many people went out to vote but that's the case in any
election. After the election is over, people complain that
only 20% of the people voted so that's not really what the
people want but if they didn't go out and vote, that's just
too bad. That's the way the system of government works.
If they don't exercise their rights, they are out of luck.
He would say that as far as the RPUD's go, there are some
that are obviously vested because they have been written,
voted on and approved. There are others where the outcome
may not be so clear and those have to be taken into
consideration on an individual basis but there are some
that are more obvious than others, that were approved and
he would certainly vote to give them vested rights and let
them, within reason build what they wanted to build. The
other issue was with the Industrial Park. He thought there
was a definite problem with that on both sides of the
issue. The one from the Charter Amendment point of view,
this was his interpretation and he may be totally wrong but
he believed the people who wrote the Charter Amendment did
so in order to preserve the quality of life in this town,
in order to stop large structures from being constructed in
or near residential areas. They don't want that type of
structure mixed with residential areas. They have the one
section of town, which is 95% to 98% residential and
commercial mixed. They have another part of town, the
Industrial Park, which is not residential at all. He would
go out on a limb to say that this Charter Amendment
restricting height probably wouldn't apply to the
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Industrial Park. That doesn't mean they can build 20 story
skyscrapers in there either but the issue is really kind of
a moot point because he didn't think there was going to be
that many people that wanted to build tall structures.
However, in the Industrial Park, he thought this City
Council should really consider exempting that whole area
from the Charter Amendment simply because it's not mixed
with the residential. It's not going to detrimentally
affect the City and in fact, it's going to benefit the City
with the inclusion of businesses, companies, jobs and
whatnot. So he thinks that is something that really needs
to be considered. In the long run he thinks it would be a
difficult and expensive process for the City but the bottom
line is that he thinks the Charter Amendment's there and he
thinks it needs to be defended to a certain extent.
Councilwoman Rhodes asked if that could happen, if it could
be exempted. She wanted a legal opinion. Councilwoman
Lichter stated that was a maybe. City Attorney Rosenthal
said that's certainly not a slam-dunk. If they put that in
the Land Development Code, it would then be exempted unless
and until someone challenged the Land Development Code and
said it was wrong. Councilwoman Rhodes asked if they could
put stuff in the Land Development Code that goes against
the Charter. City Attorney Rosenthal stated to the extent
they are trying to put things in the Land Development Code,
if all of them were to sit there and say everybody knows
that's not what the Charter says, then probably that's
going to be invalidated. If it's debatable, if it's an
area where there's ambiguity or conflicts, he thinks their
decision would be given deference. He wasn't sure that
exempting an industrial zone when they had a Charter
Amendment which would have done that, that was defeated is
something that would necessarily be sustained at the end of
the day. His approach would be to have this conversation
and then they all get to vote.
Councilman Vincenzi stated that another thing that needed
to be done also was the amendment to exempt public and
semi-public buildings needed to be brought back at the next
election and it needed to really be clarified and spelled
out specifically so that everyone knows what they are
voting on. Then they'd have a real idea as to whether
people agree or don't agree with it. This last election
there were so many State, County and City amendments and
things to vote on that he really thought possibly people
weren't exactly sure what all of them meant and there could
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have been some confusion but he really thought that needed
to be brought back as a separate issue and ask people to
vote on it again because it is going to be something, in
certain areas, that would be detrimental to the City.
City Attorney Rosenthal said that they could have a Special
Election by a mail ballot at some point in time next year
if they didn't want to wait until the General Election to
try and resolve some of this with actual amendments to the
Charter. Councilwoman Rhodes stated that they had an
election next year in 2007.
City Manager Williams stated that he would ask Council's
consideration that if they wait for a year and they wait
for some of these effects to take place, they may be
reeling from lawsuits and consequences of waiting a year
that are very costly. Councilwoman Rhodes said that's why
she thought they needed to make a decision, right or wrong
and then let the chips fall where they may but she doesn't
want to make decisions that are clearly going to be
challenged.
Mayor Thomas stated that on November 7th, the voting
citizens of Edgewater made a very clear statement to him.
It was 52% to 48%. They voted for the height amendment.
He was very proud of this Council because they have already
put that in the Land Development Code, 35' and it was a 3
to 2 vote. He really believed this Council was listening
to the citizens in the field and their constituents. It
was also on the ballot to allow commercial or semi-public
and the citizens voted 60% to 40% no. It was a very clear
message to him that they do not want high buildings in
Edgewater. He would have loved to have the flexibility,
which he thought it should have been in the Land
Development Code, which would have given them the
flexibility to make variances and things like that where
they could get some commercial buildings like that but in
no shape, form or fashion, was he going to go against the
citizens of Edgewater. They made a clear statement to him.
What they needed to do tonight or in the very near future
was give staff direction on how they are going to deal with
this. They needed to draw a line in the sand and say they
did have vested rights at that point in time when the
voters said no or they did not have vested rights and
that's what they need to give staff the direction on
tonight or in the very near future. He saw a bunch of
builders and contractors here and citizens and he really
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wanted to hear from them. At this time he opened up the
meeting for public comment.
The following citizens spoke:
Ron Bolos, Extreme Concrete Pumping, stated he lived in New
Smyrna Beach so he could not vote on the amendment. He
bought two acres of property in ParkTowne a year ago. He
bought it because of the height restrictions. He wanted to
put a concrete plant in. He owns mixers, pumps, trucks and
has 60 some people working for him and now this happens.
He's got a half a million dollars in this thing and hasn't
even started building yet so he wanted to know how that
could be fair.
Mayor Thomas said they needed to decide if he had vested
rights or did he not have vested rights. Mr. Bolos said
that a year ago, that's why they bought in ParkTowne
because they could put this in. They went through all the
meetings with the City and now they can't build 30' to 35'.
Mayor Thomas informed him it would be decided on in the
very near future, if not tonight.
Chris Balmer, 148 William Street, stated he had a question
on the legality of, the City actually sold some of the
property or most of the property in ParkTowne with the 60'
height limit. Do they have additional exposure because of
that? City Attorney Rosenthal stated he didn't think so in
that regard because that's one where it wasn't a vote to
the Council doing it, breaching a contract. He thought
that would go more to the issue of is there vested rights
based on the total situation as opposed to any liability.
He thought that if there's liability then there's liability
but not based merely on the fact that the City was the
seller. That was in a non-governmental capacity that the
City was seller. Mr. Balmer then said they are looking for
leadership. He believed Councilwoman Rhodes made some good
points of let's make some decisions and let's move forward
and the citizens voted on it and let's see how it all pans
out. He was just a little concerned on how to determine
vested rights. Understanding that they have their PUD or
they have their development order but even prior to those
actual actions some of these folks have put a lot of money
into that property. Not just from purchasing it but from
engineering costs, architectural costs, so he just wanted
to make sure they were looking at not just they were issued
a permit or they were issued a development order. That's
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an easy line in the sand to draw but they bought property
for half a million dollars a year ago and they've put
engineering costs but yet they don't have their PUD or they
don't have their development order. He asked Council to
consider that.
Dave Ross, 2803 Needle Palm Drive, stated Councilwoman
Rogers, you said how could this be that the City is
responsible? He remembered a meeting when either this
gentleman or his cohort said to her that she had the
ability to not allow this amendment to go on the ballot.
He asked to be corrected if he was wrong. City Attorney
Rosenthal could not remember that. Mr. Ross then asked if
they have the ability to say this amendment would not be on
the ballot as it's written. City Attorney Rosenthal stated
the Council could have gone into court to challenge it.
Mr. Ross stated the Council made the decision to allow this
amendment to go on the ballot, which could have been
investigated, the ramifications could have been looked at a
lot deeper, which they were not and now were looking at the
ramifications of what the Council allowed to go on the
ballot. It was not him. It was not Dot Carlson. It was
not the Attorney and it was not Jon Williams. The Council
voted to allow this amendment to go on the ballot as it was
written and they are responsible for that amendment. He
thought that was what he interpreted the Attorney said.
City Attorney Rosenthal stated to clarify it, they looked
at the petition and their opinion was that the petition met
all the requirements to be placed on the ballot and there
were no deficiencies so he didn't recall that they
suggested that the Council could have just said they don't
care what the petition said, it's not going on the ballot.
They looked at that very closely and it met the criteria.
They proposed some alternate amendments, one of which the
Council did put on the ballot to try and counter some of
the issues there.
Mr. Ross stated whatever. The Council voted to allow that
amendment to go on the ballot. That makes them
responsible. That's the reason they are responsible. Not
because of what Dot Carlson or what the voters did but
because it is a City law. He's not an attorney but that's
not very difficult for him to comprehend. He applauded the
thought that perhaps some of these very negative
ramifications could be offset by a Land Development Code
amendment and he suggested Council pursue that immediately.
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Mayor Thomas told Mr. Ross he was out of time. Mr. Ross
stated if they wanted to see what the voters really
believe, put it back on an amendment quick.
Dominic Capri a , 606 Topside Circle, stated there were three
things he wanted to address briefly. They talked about
Titusville but the fact is that they complained before the
election, not after the election, which this City Council,
if they didn't want it, should have done. The amendment on
the ballot bothered him a little bit because if they had
left it alone, he didn't think they would have this problem
today, the exceptions which Mr. Williams went to Ann McFall
and got it on the ballot, even after the deadline. He
didn't think that was right. If that wasn't on the ballot,
they wouldn't have this problem that they have today. In
his opinion and he could be wrong, the Comprehensive plan
gives them certain rights with these restrictions so
therefore they didn't need that on the ballot. That's why
it got beat. He then commented on vested rights. He saw
no problem in granting those vested rights because they had
it in there before the election and furthermore, as the
City Attorney stated, if it goes to the courts, the judge
will rule that way anyway.
City Attorney Rosenthal stated the resolution that the
Council passed was basically similar to the one in
Titusville. They were actually ahead of us. We had the
benefit of consulting with their City Attorney. They saw
their resolution and they took a similar action as to what
the City Council did in Titusville.
Dot Carlson, 1714 Edgewater Drive, representing ECARD,
didn't really think that the people in Edgewater who voted
on both of these issues were confused. They knew what they
wanted. They were educated on it and they made their
statement. The only thing ECARD set out to do was to wake
a town up because they were really being steamrolled and
they didn't now what was going on. They did that and she
was still saying as she did at the forum, if people had
voted yes on both of those amendments, it would have been a
win-win for everyone. It was their choice, that's what
they did but she didn't think they were confused on it.
It's what they wanted. This petition they had was written
up by Leslie Blackner, which was also the one Jacksonville
used. The one in Titusville was totally different. They
did not have it airtight. She has been in touch with
people in Titusville. They are good friends and some of
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them are relatives but if these people are given vested
rights, then vested rights is what they have and that is
also stated in the amendment.
Mike Thompson, Volco Road, stated right after the election
he and several environmentalists showed up at Mayor Thomas'
kitchen table and they sat there and talked to him. They
were trying to get a read on him, which way he was going to
go. He had just been elected and they wanted to know more
about him. In that conversation he thought he busted his
bubble. He told him the people didn't vote for him because
they loved him. They voted for him because they hated
Donald Schmidt and they hated Ken Hooper and they hated the
growth machine. Now, they didn't vote for their amendment
because they thought it was a "cure all" that was going to
fix every problem in Edgewater. The people don't want
growth period. If the land developers have a problem with
growth, they could vote just like the rest of them could.
They can go in the polls and they can pull the lever for
whoever they want and whatever amendment they want. The
people do not want growth. They can try and dance around
the problem but he stood on the street corner a lot
collecting petitions and when they do that, they get to
talk to the people. They get a good read on where the
people are coming from. They don't want what these guys in
these suits and ties are coming in here selling. They want
little old Edgewater. They want single-family homes. They
want wide lots where they can mow the grass on Saturday.
They want to live like regular people. They don't want to
live like Orlando people live and they don't want to live
like Daytona people live. They like it here. They don't
want to have to run because there isn't any place left to
run. They don't want growth.
Carol Ann Stoughton, 2740 Evergreen Drive, stated it's like
Edgewater is the only town that wants a 35' height limit.
Oak Hill is doing the same thing. Grant, in Bunnell
County, just made sure that they incorporated so that these
buildings can't come in and ruin their town. She tried for
one year to find out how much debt the City was in, which
was $46 million and it was in the newspaper. Kelly finally
put it in there. $46 million. That debt was way before
Mr. Williams now says that because of this Charter
Amendment they are going to have to raise their taxes. We
never should have gotten into the real estate business. We
never should have had the last City Manager go into that
fiasco which now costs $333,300 a year for the next ten
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years. This is where their debt was. From the past
mismanagement, the past Mayor, the past City Manager and
Mr. Williams knew what debt they were in and she thought he
was also responsible for this. It's a sad state of
affairs. Right now between the City Manager's salary and
his assistant it's like $225,000. She thinks it's time
that they started downsizing their people that work in the
town. They don't need all these people. As a matter of
fact, she thinks they are the only people locally that can
afford to live in Edgewater, if they work for the City.
It's unfair though. The poor men in the garbage truck who
are out there, they are making the least and they kind of
work the hardest. She feels the truth should come out and
she thinks they should have an audit. They should have the
Attorney General in here investigating what has been going
on over the past six years and again the people have
spoken. The people voted. They were not confused. She
talked to over 3,000 people. A lot of people who would
have liked to have voted couldn't. The people don't want
it. It's time they get it through their heads. This is
what the citizens want. She said give these people, they
were there, they have vested rights. Who was responsible
for stopping them on a work order? This is then causing
them into lawsuits. She thinks people who make decisions
here aren't getting proper legal advice and it's sad.
These people should go forward.
Agnes Whitter, 223 Flagler Avenue, asked City Attorney
Rosenthal if he could give them a definition of vested
interest as opposed to vested rights. City Attorney
Rosenthal didn't understand the question. Ms. Whitter
stated what is the definition of vested interest? City
Attorney Rosenthal didn't know what a vested interest was.
Ms. Whitter stated they have a vested interest in a piece
of property. Is there not a definition for what the vested
interest is? City Attorney Rosenthal stated if she was
asking for the distinction in vested interest and vested
rights, vested interest is not a legal term that he was
familiar with. Vested rights is a legal term. Ms. Whitter
asked how they define vested rights. City Attorney
Rosenthal stated that basically they actually have it
addressed in the Land Development Code and it sets forth
the criteria. Essentially if there's been an act of the
government and there's been some detrimental reliance upon
that act of the government such that it would be unfair or
inequitable to not allow a person to do what the government
had told them they could do, then they are deemed to be
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December 11, 2006
vested and not subject to new laws and regulations. That's
a very general, generic answer which has been developed by
the courts and which has been codified in various codes.
Ms. Whitter asked if they could then apply that to a person
who bought a piece of property prior to November 7th that
gave them the vested rights at the time they purchased the
property to build to a certain height and that by owning
that property prior to November 7th that those same laws
should apply to them? City Attorney Rosenthal stated, yes
they could and the Charter Amendment recognizes that the
subject for the Council is the procedures by which they
implement them. Ms. Whitter stated it was her
understanding that when the law was voted in that it said
in the amendment that it was not to pertain or inhibit
someone that already had a vested interest. City Attorney
Rosenthal informed her that was correct. Ms. Whitter
stated so if Edgewater follows that specifically and only
applied the November 7th date and the passage of the
amendment at that time and applies that to new property
owners or purchasers rather than to someone who already
owns property.
Andy Anderson, 1717 pine Tree Drive, wanted to say a word
about the folks that are in business and have invested
already in the City and have had this come up on them, this
vote by the citizens. He had to sympathize with them but
everyone knows that when you go in business, you gamble.
If you are guaranteed that you are going to make money by
going into business, they'd all be in business. Everyone
in the room would be in business. It's a gamble and he
thinks sometimes they do well and sometimes they don't and
this is what happens. As far as this City being in all
that debt. What is it, $64 million? He was corrected at
$46 million. Mr. Anderson stated that's a disgrace, an
absolute disgrace. He thinks that the people that are here
now weren't here at the time the votes were made. He
thinks they should apologize to the people of this City for
running them in a hole like that. It's unbelievable. A
small town like this, they can't afford that and all this
debt. He understood according to the newspaper, next to
Daytona Beach, Edgewater is the highest tax city in Volusia
County and the way it looks, they were going to be even
higher to clear up this debt. $300,000 a year for 15
years? That's a disgrace. People who voted for that that
are here tonight should be ashamed of themselves.
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Debby Vince, Trinity Materials, stated she actually heard
City Attorney Rosenthal's legal opinion and she was the
company that has started construction over in ParkTowne and
was given the stop work order. She was asking the City to
recognize their vested rights or give her a date when they
are going to make a decision because their agreement is
running out of time quickly. Mayor Thomas informed her if
he has his way they would do it tonight.
Ms. Vince would just love to get an answer one way or the
other because they want to work and play well with the
City. City Attorney Rosenthal stated it doesn't have to be
advertised because this is a workshop tonight. Ms. Vince
stated that she has vested rights. City Attorney Rosenthal
told Mayor Thomas that he could have a dialogue with staff
tonight in terms to this particular applicant if you so
choose.
Councilwoman Lichter asked if they could have a consensus
and City Attorney Rosenthal stated yes. Ms. Vince said she
would greatly appreciate it.
Barney Dillard, 3515 S. U.S. #1, stated his attorney thinks
contractual rights are different than vested rights. He
asked if she was off base? City Attorney Rosenthal said
that contractual rights are different than vested rights.
Mr. Dillard stated that is their position that with their
PUD recorded contract with the City, they don't want to
argue about vested. They want them to go by their contract
and it also states that attorney's fees for prevailing
party. City Attorney Rosenthal stated that contractual
rights could be a basis for establishing vested rights
under certain circumstances. Mr. Dillard stated that the
thing that reaches out to him is that they say the
application or the rules of fair play on one of the leading
cases in the District Court of Appeals it says one party
will not be permitted to invite another onto a welcome mat
and then be permitted to snatch the mat away to the
detriment of the party and he thought that's what they were
trying to do with this and he thinks that if the citizens
would have been told, maybe a little warning label on that
thing, you know, you can vote for this but taxes could go
up considerably. Maybe the vote might have been a little
different. Councilwoman Lichter stated there was a
workshop for all economic development held on this. Mr.
Dillard informed her he meant on the ballot. The wording
on the ballot, if something like that had been on there.
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The PUD just seems open and shut and he's really
dumbfounded why the staff can't just go by the words in the
amendment which it says in real simple language, verbatim
it says adopted planned unit developments on or before the
effective date of this amendment may be completed. He
hoped they all decided to let the PUDs go and give them
some kind of guidance on this.
Mayor Thomas called a ten-minute recess at this time. The
meeting recessed at 7:45 p.m. and reconvened at 7:58 p.m.
Mayor Thomas asked Mr. Lear to go A, B, C, if he bought a
piece of property in ParkTowne what's his next step?
Development Services Director Darren Lear stated he would
contact the Development Services Department. A - they
would set a pre-application meeting. At that point they
come into the City and they meet with the Technical Review
Committee, which is generally the department heads in the
City. He would meet with them and discuss and tell them
what he was looking to do and they would tell him what the
regulations are in the Land Development Code and at that
meeting he could get an application and turn that
application in. After review, just make sure the
application is complete and that he has all of his
necessary paperwork to go with it. Then they would send it
out to all of the TRC members for their comments. That
would be B - Site Plan Submittal Stage. Then the TRC
members have so many days to make comments, tell him what
he needs, what's missing from his application, then they
give those comments to the applicant. Then he would come
in and meet with the TRC members and have the TRC meeting.
That would be C. At that point, after that, in a perfect
world, he could re-submit after he's met all his comments
and addressed all the outstanding issues. At that point,
let's say he did, which rarely happens, most of the time
it's two or three more submittals after that. With that he
would be getting a development order that tells him his
site plan was approved. At that point he would go to the
Building Department. They review his building plans and he
would get his building permit. With the Land Development
Code that they revised on September 11th of this year, it
was at this point right here that he would be considered
vested. Now the changes with the Charter Amendment were
why they were in the workshop tonight.
Mayor Thomas thanked Mr. Lear.
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City Manager Williams asked Mr. Lear to describe estimated
cost and ~ngineering and time frame. Mr. Lear stated that
they have their application fees and with the larger
project they are going to be looking for some state permits
as well, from St. Johns. With subdivisions they are
looking at the Department of Health and the Department of
Environmental Protection. In between there and this
development order, can take up to two years. Then they are
looking at all the application fees which for a site plan
he believed had gone up to $1,500.
Mayor Thomas asked him to explain what TRC is. Mr. Lear
stated that the Technical Review Committee, which is the
department heads within the City. Terry Wadsworth, Darren
Lear, a Fire Department Representative. Mayor Thomas asked
to make sure all the deeds are complete. Mr. Lear informed
him that was right.
Mayor Thomas asked if anyone had any questions.
Councilwoman Lichter stated if they're talking just the
Industrial Park, how many plans, how many handshakes, how
many individual companies, etc. were they talking about
that came in at the beginning? Mr. Lear stated they have
been spread out since ParkTowne has opened. They didn't
all come in at one time. They've been buying periodically
through the years. Councilwoman Lichter asked starting
when? She then asked if the gentleman that got up before
had been working a couple of years. Mr. Lear informed her
that was correct. Councilwoman Lichter asked when the
first parcel was sold. It wasn't that long ago was it?
Mr. Lear informed her three or four years ago. Councilwoman
Lither then asked if all the first parcels were completed
or if there were some that were still going through these
process? Mr. Lear informed her yes, they still have
several that are in the site plan submittal, TRC process.
Councilwoman Lichter stated she was trying to think of this
as a bit different than the final part of when they bought
land and made the investment and the commitment and the
handshake, which she happens to still believe in, to go
into it. It's not quite the same as buying a restaurant
and as someone alluded to here a business, and you may make
it and you may not. They're talking big investments, life
savings so she would see that's slightly different.
"Grandfathered" is the word she would use in the old
fashion days, many years in the government and they would
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say the person was grandfathered in by this particular
agreement.
Mayor Thomas stated that he was trying to get a consensus
tonight from the Council and have a Special Meeting on the
vote on where they are going to draw the line in the sand
with what is vested rights and what is not vested rights.
Councilwoman Rogers said she had asked City Manager
Williams previously and they received it at the last
Council meeting to give them a listing of all the
developments within the City and where these developments
are and her questions were now going to be with ParkTowne
and any other owners that have perhaps gone through these
stages and are down at the development order stage for them
to give them a break down of the developers that are at
that point. Quite honestly, her question was out there
that once the vote took place November 7th, once the 35'
height amendment passed, they should have been proactive.
They should have already been looking to find out who had
vested rights so they wouldn't be in the situation that
they are with the one developer that's got a suit with the
City, the developer that this lady in the audience, Debbie,
is representing. They issued a permit on November 15th she
believed and then on November 29th they received a stop
order and she didn't want to get into a situation where,
let's just say, they feel that she didn't have vested
rights. Right now they are on the chopping block because
that company has put their neck out. They've signed a
contract. They started construction. They got their
financing. They need to look down the road to make sure
something like this doesn't come back to haunt the City.
Any developments that they have that are along the lines of
the commercial that's going to be affected by the 35'
height, they need to find out right now and obviously they
are going to be making the decision but before they can
make the decision it would be nice to have something in
front of them, a chart saying a, b, c, d and where these
people are at. Then they can make their decision. Is that
something that they can do?
Mr. Lear stated in all honesty if they had not gotten their
building permit or development order issued, they'd still
be in the same boat with them. They'd be here complaining
about that they are not issuing that development order or
building permit. Councilwoman Rogers stated true, but if
she were in her shoes and the City offered her a building
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permit and then they turned around and they took it away
from me, she would come back and she would be dealing with
#1, they issued her the permit so that now she's obligated
to another party to perform the construction and if it's
not performed timely, there's problems and then at the same
time, a bank loans money, they don't loan money
indefinitely. They want the project completed so that the
construction financing can go from construction to perm and
they would have then included two other parties in this
whole issue so that would have been a mess for the City.
Her feeling is that they probably have vested rights from
what she's understanding so they're not going to have a
problem but they could have and she doesn't want to see a
problem like that come to the City and there's more out
there that's going to come to them and say that they have
the right and they need to do something before a permit is
issued erroneously. Mr. Lear agreed with Councilwoman
Rogers.
City Manager Williams believed that part of the
complication that exists, specifically with Trinity, is
that, yes the building permit was issued November 15th. We
don't have certified election results today and more
importantly, it's taken some time to really unravel the
complexity of this issue to this point to be able to bring
it back to Council and say hey we've got a real problem
here. They, as staff can't make that determination. Quite
frankly, the amendment doesn't provide for Council to make
that determination. He was saying that they wanted Council
to take a stance and make that determination. They have
exposure either way they go. He thinks that's also what he
was trying to tell them is that if they take a stance and
shut down these folks in ParkTowne, they are going to sue
the City. If they take a stance the other way, there is
some citizen out there who can sue the City so they have
exposure either way they go and it's not a position that
they as staff can take with regards to these vested rights
or who actually has them. The complication that exists in
ParkTowne today is that there are still some folks that
were in the audience that would tell them that they haven't
gotten to the stage of getting that development order yet
but they've spent millions of dollars up until this point
and that there's an existing development agreement in place
in ParkTowne and that also complicates the issue and
there's a number of projects at various stages. They had
another concrete batch plant that came to town and said
they wanted to build in Edgewater. They petitioned for an
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amendment. They brought the amendment before Council.
Council approved the amendment and now potentially they
don't have any vested rights. They made a purchase of land
based off of that so it's a very complicated issue.
Councilman Vincenzi asked what the development agreement in
ParkTowne actually said in general. City Manager Williams
replied in general, he thought that in most areas of
ParkTowne they have the right to build structures up to
60'. It describes the different types of construction and
obligations on behalf of the City and so forth. Councilman
Vincenzi asked if this was a general agreement that is made
known to people purchasing property there. So they're
given the impression, more than a handshake, but it's in
writing somewhere that if they buy property they can do
certain things in ParkTowne. City Manager Williams
informed him that was correct.
Councilwoman Rhodes stated that in ParkTowne there is a
property owner's association and everybody that buys
property there must be a member of that so does that not
obligate the City down the road? In other words, all the
people there now live under certain covenants and all the
people coming in have to live under the covenants so if the
people that are there now have different covenants from the
ones coming in, does that not create another issue?
City Attorney Rosenthal informed her yes, ParkTowne they
could approach from a variety of viewpoints. The City in
effect is the developer, the landowner, they just also
happen to be the government. The City might take the
position that the City as the landowner, similar to the
developer, that all of ParkTowne is vested. That's
certainly one option. Certainly as the developer who has
invested and they've heard comments about their
expectations and their cash flow, sales may be more
difficult if ParkTowne isn't vested. They don't have a
procedure set forth now because all they have is the
Charter Amendment so if they decided ParkTowne was vested
because it is basically a governmentally approved project,
they've obviously invested capital and cash into it prior
to the adoption of the ordinance and established
procedures, they could do that on a global basis if they so
choose.
Councilman vincenzi stated that he thought ParkTowne was
special because there are no houses in the Industrial Park.
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It's a different area so he thought that coupled with the
existing development agreement does make that a viable
option.
Mayor Thomas stated that if there was a development
agreement when they purchased the property then he would
think that would be a vested right. That would be his
opinion. In the future, if anybody buys any property now
or after November 7th or 8th, when the election results were
in, that's a different story.
Councilwoman Rogers stated that's if they change that
development agreement wording to include this. Mayor
Thomas stated they needed to do that too. Councilwoman
Rogers stated that needed to be done. The development
agreement right now for ParkTowne, for any future land,
that agreement needs to be changed to reflect this Charter
Amendment.
City Attorney Rosenthal stated that as the landowner of
ParkTowne, they could certainly sell land and impose
whatever restrictions they want. If they want to restrict
height, they could restrict that in a sale assuming it's
not an existing contract, kind of without regard to the
Charter issue, whether they can unilaterally amend the
development agreement, he thinks that's probably a more
complicated question than they could address tonight.
City Manager Williams pointed out that Council had set a
goal for him to divest themselves of that property. They
have just completed an appraisal of that property and it
has described its value unimproved is $70,574 and it
incorporates that development agreement. If they are
successful in selling that property, it's about 83 plus or
minus which equates to $5.9 million. That clearly gets
them out of debt for the amount of purchase that they have
there and goes forward. He thinks if they go back and
amend that agreement, placing this 35' height cap on there,
they'll probably devalue their own property 50% or more.
Mr. Lear stated that they also have several property owners
in there that have to sign the agreement as well and he
didn't think they were going to get them to agree to that.
Councilwoman Rogers stated no, it wouldn't affect the
people that had already purchased. It would only affect
those in the future but with what City Manager Williams
just said, leave it like it is.
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Councilman Vincenzi said the development agreement is not
just determined by the City though. It has to be voted on
by the landowners and there's 20 people who own land so
whatever the restrictions are on the covenants in there is
what they have to go by so if people don't vote on it, it
won't get approved and he doubted they were going to vote
for it.
Councilwoman Rhodes stated she thinks that to devalue the
City's property is stupid. She thinks they need to keep
ParkTowne the way it is. She thinks the PUD's needed to
stay the same. Any PUD, not just in ParkTowne that was
signed by this City needs to be honored. In her opinion,
as far as PUD's go, that's where their vested rights start.
If their Land Development Code says vested rights start at
the development order then that's where they start or they
change the Land Development Code.
Councilwoman Lichter also thought the Industrial Park
should stay the way it is. She thinks it's separated and
it's valuable. She didn't believe it was a bad move by the
way some people have stood up and alluded to. The total
debt in this community is not only because of the
Industrial Park. The day they put roads in Florida Shores,
the day they put in sewers which was about 15 years ago.
She remembered a City Councilman resigned because he didn't
want to tax the people more but the City is also paying a
third of that. They are paying for a Water Plant. They
are paying for other debts. Industrial parks are
desirable. They are competitive. Some of the things may
not have been done to the letter of the law in terms of
contracts, etc. with gentleman's agreements, but she thinks
it should stay as it is. She didn't mind if they unload it
and give it to a realtor or someone else to take care of
but she thinks for the people that are there now, they
should keep it as it is.
Councilwoman Lichter also wanted to talk about Mr. Ross'
comment about the Council is to blame. They put it on the
ballot. She interpreted that when they heard from their
lawyer, when she heard from the registrar of voters that
the group that petitioned got the right amount of petition
signatures, that they met the letter of the law and since
our Charter spelled out the reasons and the ways that
people could initiate an initiative, she thought they had
to put it on and she believed that. She disagreed with Ms.
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Carlson on the second vote because she knows there was
confusion. There was confusion the night of the debate.
Some people did not understand that the first one wasn't
going against the second one. They were two separate
issues and a particular individual she knew bought signs,
paid for signs, put them out to vote yes, yes, no and that
isn't what he meant. When he was thanking the voters
afterwards, he had not thought that the second one passed.
That one was a bit confusing. She thought as Councilman
Vincenzi had said that perhaps that ought to be looked at
at a different time again. She would draw that line by
erasing it.
Mayor Thomas asked City Manager Williams if he wanted a
straw vote for a consensus, he knew it didn't mean anything
at this time, to get them all going for the projects that
are in process at this time?
City Manager Williams stated he was looking for a consensus
on existing PUD agreements to include development
agreements, i.e., ParkTowne Industrial Park. If they are
going to take an approach to amend the Land Development
Code, they're looking at a minimum of 60 days and if that's
an efficient process, a minimum of 60 days. In that time
frame, the agreement they have established with Trinity
Materials was going to expire and then they would be back
to issuing a stop work order, thereby exposing themselves
to litigation again. He was looking for a consensus of all
members of the Council with regard to the PUD's and
development agreements and he would bring it back
officially on January 8th.
Mayor Thomas stated he'd like to entertain a motion and
that he'd like to see two motions, one that pertains to
ParkTowne and one that pertains to the PUD's. City Manager
Williams informed him not a motion, just a consensus.
Councilman Vincenzi stated he'd like to put out a statement
that maybe they could reach a consensus on as far as
ParkTowne, that the existing development agreement should
be honored and existing projects in ParkTowne should be
allowed to continue. Mayor Thomas, Councilwoman Rogers,
Councilwoman Rhodes and Councilwoman Lichter all agreed
with that also.
Mayor Thomas stated now the PUD's. City Manager Williams
said the existing PUD's. Councilwoman Lichter stated that
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they have already approved. City Manager Williams stated
he needed consensus on existing PUD agreements. Councilman
Vincenzi asked if he had a list and that he knew
Reflections was one. He asked if on the top items 1
through 4 have buildings that exceed 35' and have signed
PUD's. City Manager Williams informed him that was correct
and the ones on the bottom were approved with maximum
heights below. Councilman Vincenzi stated that the ones on
the bottom were not an issue then.
City Attorney Rosenthal asked if they were under the same
definition. City Manager Williams said there could be some
potential conflicts there because of the calculation of
buildings heights as it relates. Councilwoman Lichter
asked if that meant where they measure from? City Manager
Williams informed her yes. He then showed Council a
diagram showing conflicts that exist. As it is currently
in the Code, it's measured from the finished floor
elevation to the highest point of the roof. As it's
written in the Charter Amendment, it's from the crown of
the road. If they had a piece of property north of here,
most of them would recall that they are on a very high sand
ridge. He knew there's probably not a whole lot of
properties this applies to but that is probably 6-7 feet
above the crown of the road so when they look at the crown
of the road and the calculation of as such, they've got
some conflicts that exist there in terms of the height of
the buildings that could be built. Councilwoman Rhodes
stated right now the Land Development Code says they can
only be 26' anyway. City Manager Williams informed her
that was from the finished floor elevation. Councilwoman
Rhodes stated okay, so if they have 7'. Councilwoman
Lichter said but that's only Riverside Drive. City Manager
Williams stated they have to look at that anywhere in the
City. The elevation typically has to be a foot above the
crown of the road so they've got those issues there and the
conflict. Councilwoman Rhodes stated it needed to be
uniform whatever it is. Councilwoman Lichter said that her
general feeling was that a PUD, if it's been accepted and
gone through the stages, it should be allowed to continue
and that they start with new ones coming in.
City Attorney Rosenthal stated if they took the second
list, the ones that are below 25', if they concluded that
those were vested, then the definition in the Code would
apply as opposed to the definition in the Charter and that
would eliminate the conflict. The ones exceeding also
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would apply, use the Code definition rather than the
Charter definition.
Councilwoman Lichter asked if the consensus would be if
they wish to use the Code definition for the existing ones
and then anything new comes in it would be different.
Mayor Thomas stated he thought they would have to.
Councilwoman Lichter stated she would believe so and that
it had a better chance of keeping away lawsuits and it's
also a more honorable way because when they came in they
had certain expectations and she thinks anything new this
should apply to. Councilwoman Rhodes asked if they had to
change the Land Development Code to comply with the
Charter. City Attorney Rosenthal said no, they can have
the dual method but candidly he wasn't sure what staff
wanted on that because there are pros and cons. The dual
method meant they have two methods they have to calculate.
Councilwoman Rhodes asked if that leaves a lot more room
for error and lawsuits and issues. City Manager Williams
stated representing staff he would certainly suggest that
Council consider revising the Land Development Code to be
consistent because he thought they were going to find
themselves in that gray area all the time. Councilwoman
Rhodes stated that creates a quagmire. Councilwoman
Lichter stated but at what point? She believed it should
be consistent but they are talking about ones on the books
already. City Manager Williams suggested that all existing
RPUD agreements as of November 7th, the determination for
calculating heights applies to the Land Development Code.
Anything new they would apply the calculation of heights
based on the Charter Amendment. Councilwoman Lichter asked
what the dates were on these things. City Manager Williams
stated off the top of his head he didn't have the exact
execution date of each RPUD agreement. Councilwoman
Lichter stated it's going to take a little more work to
give them, to look at.
Councilwoman Rogers stated that she had a problem with them
just blanketly saying that the RPUD's that have been
already approved do not have to deal with the 35' height
amendment. For instance, Edgewater Harbor, when they came
back to them and made the amendment, she had made a motion
and she believed it was approved and worded and there's
some discussion or there has been some discussion about the
comment that was put into the agreement about if they did
not permit the project by a certain date, then they would
have to permit according to the Land Development Code at
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that time. City Manager Williams stated that it is actual
construction by he believed it was April 3rd or 4th.
Councilwoman Rogers stated so in other words, she didn't
want to say that any RPUD's that have been in the first
section that they are not going to have to abide by that
35' height. For instance, what's going on with River Oaks?
They haven't heard anything. The last thing she heard was
there was a possibility they were going to sell the land.
City Manager Williams stated he heard that too but he
wasn't familiar with which stage of the process they were
in. He asked City Attorney Rosenthal to discuss taking a
stance with PUD agreements of one nature and PUD agreements
of a different nature. Do they expose themselves any
further? City Attorney Rosenthal stated that he recalled
that provision and if the project were to sit and not move
forward, that could be a factor in whether or not they have
vested rights. If they were to come to Council and ask for
changes that could be a factor that would affect whether or
not they have vested rights. Candidly as a general
statement, vested rights are typically granted more by an
application demonstrating facts and a specific order.
Maybe because of the tenseness and angst in the community,
there's a feeling to give one rule that fits all but he
certainly had not read each development agreement to tell
them what the law would be as it relates to each particular
development agreement. Councilwoman Rhodes stated that all
development agreements have a date on them by which they
expire unless they are brought back to Council and renewed.
It would be her opinion that if they expire and are brought
back to them to be renewed at that point in time they say,
well now they have to comply because they don't have the
vested right any more. Mayor Thomas agreed with that.
Councilwoman Lichter wanted a little more type of legal
opinion concerning the first four. She didn't have a
contract in front of her. She didn't have a date in front
of her at the moment and she'd like to know a little bit
more about them with some legal help. They took care of
the Industrial Park but she didn't think they had taken
care of this problem.
City Manager Williams stated they needed to clarify whether
or not they needed to throw a little bit of caution to the
wind. If they take a stance on commercial property and
then they take a different stance on residential property,
are they just exchanging a different group of folks that
are going to show up out there and start beating the drum
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and say they are going to sue the City. Councilwoman
Rogers stated the difference is that the other property
there is a development agreement. The City's the developer
and that's the difference she thinks more so than this.
City Manager Williams stated there's an agreement that
exists with these folks and he was just throwing caution to
the wind. Councilwoman Rogers stated but the City was
acting as the developer on the other one. Mayor Thomas
stated what they were talking about were what ifs and that
they needed to give staff some guidance on the first four
PUD's that have already been approved by Council.
City Attorney Rosenthal thought what he heard Council
saying was with respect to all 8 of those, that if the
developers comply with all the terms and conditions of
their agreements and do what they are supposed to do under
those agreements within the time frames, then they are
vested and entitled to proceed but if they don't or if they
want changes, he didn't think that it was they are not
vested. He thinks there was not a definitive answer being
provided. The Council agreed that it would have to be case
by case. Councilwoman Rhodes stated that any time anyone
wants to extend their PUD agreement they have to come to
Council and ask for that extension and it can be granted or
not, it says right in the PUD papers. Mr. Dillard from
River Colony stated he was going as fast as he could.
Councilwoman Rogers stated she didn't have a problem with
River Colony or Reflections because they are already too
far-gone, it's Edgewater Harbor and River Oaks.
Mayor Thomas asked if they could get a consensus.
Councilwoman Lichter stated if they've met all the
requirements, they've already passed, etc., they are time
accurate, etc. and they have approved them, she thinks they
are going to have to fly. If they have stumbled, if there
are delays, if there are changes, they have to look at them
individually. That's two points to this. Your Land
Development Code is a third separate thing. Do they want
to talk about that now or do they just want to try and take
care of this.
Mayor Thomas stated he wanted to take care of this.
Councilwoman Lichter stated those that have in a sense
vested rights, they met their PUD contracts, all their
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agreements, their permitting, everything else, they are on
time, it's going to be hard to change them now.
Mayor Thomas, Councilwoman Rhodes and Councilman vincenzi
agreed.
Councilwoman Rogers felt they needed to look at this
further. She didn't want to say, with two of them they've
done certain things, the projects are going nowhere. One
of them has already come back and had amendments and it's
still going nowhere. She didn't want to leave it wide open
so they can sell it and somebody else can come in under the
old plan. Councilwoman Lichter stated that would change
it, they didn't say that just now. Councilwoman Rogers
stated no but that's going to be what happens and if they
leave it out there open like they are then they're opening
themselves up to a potential lawsuit in the future unless
they define it right now. Councilwoman Lichter stated no
matter what they do, there's potential. They're just
trying to minimize it.
Mayor Thomas asked City Manager Williams what else he
needed. City Attorney Rosenthal asked if the only
immediate one was the concrete silo from the standpoint of
construction. City Manager Williams stated he thought
there was that one and there were some existing projects
within ParkTowne that needed a clear answer and he thought
they pretty much got it. City Attorney Rosenthal stated so
that answers ParkTowne with respect to those 8 projects.
He asked if there were any immediate, over the next 30
days, building permit issues?
Mr. Dillard stated on his final plat the City had said that
all his conditions just like on the PUD had to be on the
plat. When his final plat comes up with that 50' height,
this is in limbo and they can't do that because then the
time limit for his PUD was going to be up. He was in his
second round of comments.
Councilwoman Rogers stated but in this process, they are
under developer order and they've already dealt with St.
Johns and they've already dealt with the Army Corp, so she
thinks he's there, that's vested rights, he's fine. City
Attorney Rosenthal stated what they would try and do from a
legal standpoint to the extent anybody chooses to file a
suit based on the discussion tonight, they'd essentially
try and get them to agree to stay the proceedings so they
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are not spending a lot of money on litigation on the
expectation that they'll have a resolution of that which
will eliminate any ambiguity and make them and their
lenders and purchasers and everyone feel comfortable and if
they are dealing with ParkTowne tonight and telling City
Manager Williams to let them go forward, obviously they
still have to come back formally and clean that up but that
would seem to solve the immediate crisis over the next 30
days.
Mayor Thomas asked City Manager Williams if he needed a
consensus on anything else. City Manager Williams
suggested they talk about the Land Development Code and
whether or not they want him to start the proceedings to go
back and eliminate the conflicts that exist on the
calculation of height. Councilwoman Lichter asked him to
give them the conflicts and stated that that may not happen
tonight. She wanted to see in front of her where the
conflicts exist. She wanted to know the process just
spelled out. How long it's going to take? What they have
to do? They've got to send that to the State, etc. She
would like 'to have that in writing in front of her. Mayor
Thomas stated he thought what City Manager Williams was
going to do was set up a draft of what he's going to change
so that they can look at it before they approve it and he
was very happy with what they did. They went to extremes
to change the Land Development Code and he wanted to keep
that. The only thing they are going to change is what the
Charter Amendment is directed so it's not conflicting. He
asked if that was correct. City Manager Williams stated
yes, they've got conflicts with how they calculate building
height. Obviously that's another consideration, whether or
not Council wants to go ahead and change and make it a
blanket 35' across the board. Obviously that increases
some heights in some areas that are more restricted today.
Councilwoman Lichter stated they had definite reasons when
they did that and asked if they could go into the history a
little bit. It had to do with not being able to see the
river from across the street or something. City Manager
Williams stated that was his understanding of the history
but he wasn't 100% sure. Councilwoman Lichter said when
she looked at the property, she was very much told that.
They've got to maybe honor some of the things that had a
reason in the past that were good and write that in there.
Councilwoman Rhodes stated that she thought the 35' height,
by virtue of the amendment, gives them their maximum
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height. It doesn't have to be that way everywhere and
there are good reasons that the Land Development Code kept
the 26'. She thinks that the Land Development Code should
comply with the Charter. She thinks the specifics of the
26' versus the 35' height, that could be decided at a
meeting or did they want to know now? Councilwoman Lichter
stated but they are talking technical things with where the
land should start. In other words, they're all agreeing
the Charter and the Land Development Code should match.
They are asking her a question that she didn't have the
background on of what other cities do or what's common,
etc. where do they start measuring the height from? That
takes an engineer. City Manager Williams stated that the
Charter clearly stipulates that they start measuring the
height from the crown of the road. Councilwoman Lichter
stated so if the crown of the road goes up high, like on a
hill or something, and they measure there and down there,
it's low, you are measuring two different heights. City
Manager Williams stated that if the land runs 35' in the
air and it's still 35' above the crown of the road, they
are still measuring from the crown of the road. That's an
extreme example but they measure from the crown of the road
regardless. Councilwoman Lichter asked how other cities
handle this. City Manager Williams informed her he wasn't
sure but he thought they've just defined themselves to be a
little different and unique with the amendment.
City Attorney Rosenthal asked City Manager Williams if that
could result in a zero height, then obviously that would be
a situation in which they could say the Charter wasn't
intended to do. Mayor Thomas stated he wasn't going to
argue with him.
Councilwoman Rhodes stated she thought the Land Development
Code needed to reflect the Charter. It needs to be
consistent and as far as the heights, they are already in
the Land Development Code. All they are talking about is
the way they are figuring them, which is going to have to
be changed to comply with the Charter. City Manager
Williams asked if they wanted him to focus on the
calculation of height and not the table that says
everything needs to be 35'. Councilwoman Rhodes said right
because they've already made height. Those are already
there. Councilwoman Lichter stated this is an unusual
circumstance because generally Charters don't have this
kind of thing in them, that they're talking about, they
tell how a City is run, how they're elected and things of
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that nature. Councilwoman Rhodes stated but they already
have height restrictions.
City Manager Williams stated when they look at the maximum
height, they have a variety. They have 35, 35, 26, 15, 26,
45, 50. What he was asking was if they wanted him to take
that column and make it 35' or just focus on the
calculation of height based off the fact that it exists in
the Land Development Code from the finished floor
elevation, change it to match what's in the Charter that
says from the crown of the road they measure the 35'.
Councilwoman Rhodes said for this time period right now,
yes, they could study it further. Mayor Thomas agreed.
City Manager Williams said the ones that are 50 would have
to be lowered. Councilwoman Rogers stated but then the
Land Development Code is what they rule things by and then
if there's a conflict, the Charter overrules it anyways.
It's already done because the Charter will overrule.
City Attorney Rosenthal stated they have to come back with
the Charter Amendment and clean up the Land Development
Code because that's administratively a nightmare.
Councilwoman Lichter asked when the State gets the Land
Development Code as amended or changed, do they also have a
copy of their Charter. No, so they don't even, I mean they
could send yes or they could send no. It's going to have
to be for the Council to do the best they can locally to
try and coordinate the two of them.
City Manager Williams stated that as City Attorney
Rosenthal already pointed out, in cases where it conflicts,
where it exceeds 35', they have to change it to bring it
down. In those cases where it's more restrictive than the
35', they can leave it. Mayor Thomas stated he'd like to
do that.
City Manager Williams stated unoccupied structures, there's
pretty specific language in the amendment that deals with
unoccupied structures but it doesn't cover everything.
City Attorney Rosenthal asked if they wanted this list in
the Charter to be the exclusive list or did they want it to
be an illustrative list? Councilwoman Rhodes, Councilwoman
Rogers and Councilwoman Lichter all said illustrated.
Councilwoman Lichter asked City Attorney Rosenthal if there
were certain buildings that are exempt from this kind of
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thing. She spoke of it applying to schools, churches, and
hospitals. City Attorney Rosenthal informed her he didn't
know if it applied to schools. The School Board doesn't
have to get a building permit so it may not apply to
schools.
Mayor Thomas stated a representative of the School Board
was there and she said there are a lot of issues that need
to be completed before she comes back. That's what she
told him. City Attorney Rosenthal further stated to the
extent that there is a State or Federal law which says they
don't have jurisdiction over a particular structure.
Councilwoman Lichter stated like a Veterans' hospital, she
was thinking of, something national. City Attorney
Rosenthal stated that he didn't know. Does the Federal
government have to come in? He thought they could build.
Mr. Lear stated when they talked to the representative from
the School Board she said they have to abide by the height
limit. Councilwoman Rhodes said that the hospital said the
same thing.
City Manager Williams said right and certainly his comment
was not representative of the actual position of the School
Board but it is their understanding that they have
expressed doubt as to whether or not they would annex
schools into the City based on that.
Mayor Thomas asked if there was any other consensus City
Manager Williams needed. City Manager Williams thought
that covered it. Mayor Thomas asked if there was anything
else he wanted to discuss tonight. City Manager Williams
stated there were a number of things he'd like to discuss
obviously. Certainly they are all sitting there wondering
what the effects of this height amendment and the potential
for litigation or the lack thereof are going to have on
this City and he certainly would tell them that he was
concerned with the fact that it may have tax consequences.
They have over spent on legal fees for the last fiscal
year. He didn't have the exact dollar amount but obviously
that is something they needed to be cognizant of so he just
wanted to make sure he pointed that out to Council.
City Attorney Rosenthal stated he would add particularly
because they are in a transition period right now, one of
the things he discussed with City Manager Williams who
wanted to make sure from a legal research standpoint, they
don't want to have to start doing legal research, which is
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then going to have to be duplicated by another law firm so
to the extent anything happens, they are probably going to
try and push off having to incur any expense, either on the
basis that the Council's going to resolve it with some Land
Development Code amendments or because of the transitioning
in Council. They don't want to have to duplicate so he has
discussed that with City Manager Williams.
City Manager Williams stated they all know that Council has
provided direction for him to start establishing dialogue
with regards to transitioning their legal counsel. They
had the new firm that was there tonight. He introduced
Carolyn Ansay, Mike Ciocchetti, and Karan Lavassaur as the
new firm that would be representing them. They would he
bringing forward a contract for January 8th.
Mayor Thomas appreciated them coming because it would make
the transition a lot easier.
Councilman Vincenzi had two questions. How did what they
talked about tonight related to the Oscar Zeller lawsuit?
Does it take care of most of his problems? City Attorney
Rosenthal informed him yes. They are in ParkTowne so to
the extent ParkTowne is vested, they wouldn't seem to have
an issue and they may not have a standing to challenge it
even if they were to proceed. Their goal would be to
basically work with them to stay the proceeding while they
work this out and then document their rights.
Councilman Vincenzi stated the other question was there's a
cement plant that's under construction. The consensus was
to leave ParkTowne alone, let them continue. Do they have
to come back and vote on that? City Manager Williams
informed him yes. He was going to do his best to have it
back to them on January 8th for official action. Councilman
Vincenzi asked Ms. Vince if that was beyond the time limit.
Ms. Vince asked if she could go ahead and start erecting
her plant. Councilwoman Rhodes informed her yes. Ms.
Vince stated if she can move forward and erect her plant
she didn't have any problems. She was going to go ahead
and continue to build and the Council could do whatever
they needed to do.
City Attorney Rosenthal stated if the Council said yes,
that's fine. If they didn't have vested rights before
they'll definitely have them now. Councilman Vincenzi
asked if even though they haven't officially voted, they
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are okay to continue? City Manager Williams stated that's
what the consensus is at this time. Councilman Vincenzi
asked about the other landowners, like the one in
particular, US Pavers, Paverscape? City Manager Williams
stated he thought they had taken an official stance for all
of ParkTowne development. Councilman Vincenzi stated so he
could move forward with his plans. City Manager Williams
informed him that was correct.
Mayor Thomas asked if they had drawn a definitive line in
the sand? City Manager Williams informed him that with
ParkTowne yes. He thought they had with the existing RPUD
agreements. He would walk away from this tonight
understanding that as long as they comply with the
conditions that are set forth in those existing agreements
then there's not an issue.
Councilwoman Rhodes stated that they needed to understand
that if those agreements come back, then the deal will be
different. City Manager Williams stated he thought that
some of the things that Council needed to recognize was
that there's language in there that specifies time frame or
issuances of permits so he thought that once they get
through that they were basically saying that as along as
the PUD agreement does not expire, they're okay.
ADJOURNMENT
There being no further business to discuss, Mayor Thomas
adjourned the workshop. The Workshop adjourned at 8:50
p.m.
Minutes submitted by:
Lisa Bloomer
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