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03-23-1998 - Special .... ....., CITY COUNCIL OF EDGEWATER SPECIAL MEETING HARCH 23, 1998 7:00 P.M. COHHUNITY CENTER MINUTES CALL TO ORDER Mayor Allman called the Special Meeting to order at 7:00 p.m. in the Community Center. ROLL CALL Mayor Randy Allman Councilman James Gornto Councilman Myron Hammond Councilman Gary Roberts Councilwoman Judith Lichter City Attorney Nikki Clayton city Manager Kevin Grace City Clerk Susan Wadsworth Police Chief Lawrence Schumaker Present Present Present Present Present Excused Present Present Present MEETING PURPOSE Mayor Allman stated they would be discussing whether or not a case that was heard at the 5th District Court of Appeals is going to be carried on any further. They would not be discussing the merits of the case or the parties involved in the case tonight. City Manager Grace introduced Donna McIntosh, who is serving as the City's counsel on this matter. He asked Donna McIntosh to walk through the decision that is facing the Council tonight. Donna McIntosh, Stenstrom, McIntosh, presented the background information regarding the case of the Associates of Meadow Lake, Inc. v. City of Edgewater and what has been done up to this point. She informed Council of her denying everyone of the allegations and the affirmative defenses she raised. Ms. McIntosh recommended the Council do a full court press and authorize their law firm to file the jurisdictional brief with the Florida Supreme Court and ask them to accept jurisdiction on the fact that this case expressly and directly conflicts with prior Florida Supreme Court opinions and also other District Court of Appeals opinions. She also recommended the Council to authorize the City Manager to immediately begin meeting with Associates of Meadow Lake, Inc. to fair it out if there is any possibility of resolving or negotiating a settlement of this case. The Council would be taking advantage of both of their options. They would be moving the case forward but they would also be checking out the possibility of resolving the case. Councilman Hammond asked who owns this property. Ms. McIntosh stated there needs to be more discovery done for her to tell them legally who owns the property. It appears to her the property was dedicated to the Homeowner's Association in 1987. Mayor Allman asked how long this case had been going on. Ms. McIntosh informed him 1994. Mayor Allman questioned needing more discovery of who owns it. Ms. McIntosh explained neither side has done discovery in this case because they have been focused on the legal issues. She did document review in City Hall and found the plat where the property owner at the time dedicated this property to the Homeowner's Association which leads her to conclude they own the property. ..... ......, city Manager Grace asked Ms. McIntosh to explain what happens if Council decides not to file an appeal. Ms. McIntosh stated if the Council directs them not to appeal the decision, they would still have the option of directing the City Manager to immediately begin settlement discussion or they would need to begin discovery and to start ferreting out the facts of the case. City Manager Grace stated as he understands it, if the Council decides not to appeal, they would proceed as a condemnation case. Ms. McIntosh confirmed they would be in an inverse condemnation setting. City Manager Grace questioned if they proceed forward, the City would be responsible for attorney fees, appraisers, expert witnesses and those type of things in that proceeding. Ms. McIntosh stated if the court determined that in fact an inverse condemnation had happened, which would be a factual issue, the court would have to determine that. Councilwoman Lichter asked why these things are discussed in public. She thinks there are techniques of lawyers, there is a chess game that goes on that to her is being played out right now in front of the plaintiff and his lawyer. It seems to her, of course negotiation is always the best, if it is reasonable and works. If you don't have a little leverage to help make that work, then you've lost your other option. She doesn't know how far she would project taking this but she would be curious in finding out how much they estimate the first level would be of going to court. She is worried if they just sit down and negotiate the City doesn't have an ace in their hand. If you go on to the first level, you can still negotiate and then pull back. She asked the cost to find out if the Supreme Court would even take the case. Ms. McIntosh informed Council they have estimated between $3,000 and $4,000. Mayor Allman asked if that would be times two, if they lose they would have to pay him too. Ms. McIntosh explained if the court decides not to accept jurisdiction, then the 5th opinion is the law of the case and then if we go back and the trial court determines that in fact there was an inverse condemnation, the City would be responsible for their attorney fees. She feels this is a big issue because if the City wins, the case is over. If the Florida Supreme Court were to accept jurisdiction at this point and were to reverse the 5th and affirm the trial court, the case is over. Councilwoman Lichter questioned other cities picking up the ball if the Supreme Court decides to look at this because it is an issue beyond just one city. Ms. McIntosh explained City Manager Grace has talked about contacting the Florida League of cities and the Florida Association of Counties because they are interested in this type of litigation to see if they would be interested in helping to fund and/or providing amicus briefs in the event the Florida Supreme Court accepted jurisdiction. Councilwoman Lichter would hate to be in a position where they were left with nothing but negotiation in case that negotiation couldn't be resolved and then had no backup. She feels the first level should be met. Ms. McIntosh spoke about discussing this case in public. They want to include the public as much as they can. There is the opportunity when you are involved in litigation to go into an executive session to discuss the settlement of a case. This can be done excluding the public and then return to regular session. If a case is resolved, that transcript from that hearing would become a public record. Page -2- Council Special Meeting March 23, 1998 '-'" ....., City Manager Grace is comfortable with the recommendation that they should at least take this first step to keep their options open and file the jurisdictional brief before Wednesday. That will cost between $3,000 and $4,000. He feels that will help them approach settlement discussions from a position of strength. If the Supreme Court looks at this, we are looking at another $15,000 which he believes they can get some of that paid for by other entities that are concerned and interested. He feels they need to take that first step and meet the deadline by Wednesday. Councilwoman Lichter asked if the Supreme Court agrees to look at this case, what kind of timing do you have for negotiation before you make the decision of going on or not. Ms. McIntosh explained if the Supreme Court says yes, the City would have to file its briefs. City Manager Grace asked how long it will be before they will know whether the Supreme Court has decided to take jurisdiction or not. Ms. McIntosh stated she can't estimate that time. There is no deadline for them to rule on that. Ms. McIntosh thinks there should be an impetus to reach a reasonable settlement of the issue. Franz Dorn, Attorney, Associates of Meadow Lake, Inc., spoke about statistics he received from the Supreme Court regarding jurisdiction. He feels the key issue that won it for them at the appellate level was the fact that the flooding was seven months permanent over the property. He asked Council to consider the odds and the money it is going to go into taking a very extreme roll of the dice. If Ms. McIntosh does file the jurisdictional brief, they are going to try and get an extension of time so they don't have to exhaust any more money. Mike Visconti, 316 pine Breeze Drive, Meadow Lake Subdivision, stated when this piece of land was dedicated, it was dedicated to the Homeowner's Association by J.C. Carder in 1987. As far as they are concerned, the Homeowners own this piece of property. There was a suit against him personally and they investigated who owned this property as of 1996. In the title search they have made, Mr. Coleman still owned this piece of property. He doesn't understand if someone doesn't own a piece of property, how could he be awarded ex-amount of dollars for something he doesn't own. Mr. Visconti spoke about Mr. Barrett raising the drainage two feet on this piece of property. st. John's Water Management came in and had Mr. Barrett cut this drainage down to level and had to plant trees there because of the flooding. He doesn't understand why if someone flooded their own property by raising the drainage, why is the City being asked to pay him ex-amount of dollars for settlement. Mayor Allman explained the purpose of the meeting is to see whether they are going to take this case to the next level. The 5th District Court of Appeals has already found in his favor. Our next step would be to take it to the Florida Supreme Court. Mr. Visconti stated the property owners in Meadow Lake feel they own that piece of property. Franz Dorn stated if it goes to the Supreme Court, the only issue is the flooding. You don't lose your other points, you would only lose the flooding issue. Page -3- Council special Meeting March 23, 1998 '-'" ..."" Councilwoman Lichter thought the whole thing was about Mr. Barrett not having use of his property for a given amount of time. Mr. Dorn explained you would lose the legal issue as to whether it could be dismissed and as a matter of law you could have a temporary taking. You would still be able to allege facts and have a conflict of facts at the trial to show these things didn't occur. Ms. McIntosh explained they objected to all the allegations and have still preserved the right to object to the ownership of the property and his very ability to have standing to file the lawsuit. Mayor Allman asked if Mr. Barrett doesn't physically own the property or never did, then why have they gone this far. Ms. McIntosh explained at the motion for summary judgment, you identify the issues where there are no questions of fact and only issues of law. Associates of Meadow Lake, Inc. would not admit that he didn't own the property. They attached to the amended complaint a quit claim deed where they were arguing that the Associates of Meadow Lake, Inc. did have a recognized interest in the property and did have the right to bring the lawsuit. They wouldn't stipulate to the fact. That issue had a dispute in the fact because they wouldn't say no they don't own the property, they were saying they had the deed to the property and had a recognized interest on that property. The only issue the court could focus on was a pure question of law and does a temporary flooding of property constitute inverse condemnation. Their position was it did not. Mayor Allman wanted to know why, if nobody knows who owns the property, they are discussing a settlement with someone who doesn't own the property. If we can't prove who owns the property, then why is the 5th District Court of Appeals overturning it. Ms. McIntosh stated all that has happened in this case is one legal issue has been decided. Councilman Roberts asked why clarification of ownership wasn't figured out when this was started. Ms. McIntosh explained immediately when the lawsuit was filed, they filed a motion to dismiss and the motion was based upon the fact that they argued to the court that they did not have an interest in that property. They then filed an amended complaint and attached to it a quit claim deed. They believe that quit claim deed was flawed and they raised it as an affirmative defense in the answer that the quit claim deed was conveyed subject to the terms and conditions of the covenants of the Meadow Lake Subdivision and the dedication of that property. Councilwoman Lichter questioned going before the Supreme Court on one issue, being the actual taking of this property. Ms. McIntosh explained if a temporary flooding can even state a cause of action against the City, that is what they would be going on. Councilwoman Lichter feels sometimes it is better to get rid of something for a lower sum of money than to have to take it to the top and take a chance of losing there. City Manager Grace stated at some point it becomes a business decision. Mayor Allman asked if the City would be subject to Mr. Barrett's legal fees if the Supreme Court decides not to look at it. Ms. McIntosh explained if they were to litigate this out and if the court were to find the City was responsible for taking Associates of Meadow Lakes' property as alleged in this complaint, yes they would be responsible for their attorney fees and costs. Page -4- Council special Meeting March 23, 1998 ... ...., Councilwoman Lichter questioned if the Supreme Court doesn't agree to look at the case, if the city would have to pay the $3,000 or $4,000. Ms. McIntosh informed her no. If we litigated the issue and the court ruled against us, yes we would be responsible for their attorney fees. Councilman Hammond questioned how high the cost could go if they make it past the first level and to the next level. He questioned how many times they reverse what has already been reversed. Councilwoman Lichter feels if the Supreme Court agrees to look at the case, others would come in and help with the cost. Ms. McIntosh has been contacted by folks who are interested in supporting the City through filing amicus briefs in particular. Councilman Gornto made a motion to direct the legal counsel to file the appeal to take it to the next level to be reviewed by the Florida Supreme Court and at the same time direct the City Manager to investigate if there is a possibility of settlement and report that back to Council, second by Councilwoman Lichter. The motion CARRIED 4-1. Councilman Roberts voted NO. ADJOURNMENT There being no further business to discuss, Councilman Gornto made a motion to adjourn. The meeting adjourned at 7:43 p.m. Minutes submitted by: Lisa Kruckmeyer Page -5- Council Special Meeting March 23, 1998