City Commission Regular Meeting

ORIGI 1 1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA 2 CASE NO.: 2020-CA-001517 3 4 CLIFTON E. JENNEY and RANDI R. JENNEY, MICHELE HAUSMANN, 5 CONRADE. SCHMIDT and PAMELA J. SCHMIDT, JESSEL. 6 PENNINGTON, DONALD A. WYATT and CHERYL J. WYATT, 7 Petitioners, 8 vs. 9 CITY OF EUSTIS, FLORIDA, 10 Respondent. 11 ________________/ 12 13 CITY OF EUSTIS CITY COMMISSION 14 SHADE MEETING ATTORNEY/CLIENT 15 16 HELD BEFORE: MICHAEL HOLLAND, MAYOR EMILY A. LEE, VICE MAYOR 17 KAREN LEHEUP-SMITH, COMMISSIONER MARIE H. ALIBERTI, COMMISSIONER 18 ROBERT R. MORIN, JR., COMMISSIONER 19 October 15, 2020 20 7:12 P.M . - 7:25 P.M. 21 CITY OF EUSTIS CITY HALL COMMISSION CHAMBERS 22 10 North Grove Street Eustis, Florida 32726 23 24 Reported By: Evelyn Andrews, RPR, RMR 25 Notary Public, State of Florida JASKO COURT REPORTING SERVICES, INC. 352-250-7345  2 1 APPEARANCES: 2 3 On Behalf of the City of Eustis: 4 DEREK A. SCHROTH, ESQUIRE BOWEN & SCHROTH, PA 5 600 Jennings Avenue Eustis, Florida 32726 6 352-589-1414 dschroth@bowenschroth . com 7 8 9 ALSO PRESENT: 10 RONALD R. NEIBERT, CITY MANAGER 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JASKO COURT REPORTING SERVICES, INC. 352-250 - 7345  3 1 P R O C E E D I N G S 2 3 MR. SCHROTH: We'll go ahead and begin this 4 closed session pursuant to 286.011. As the 5 Commission's aware, we were sued concerning the 6 approval for Tom Zahn's property. It was what's 7 known as the Bates subdivision. And they filed 8 what's called a petition for writ of certiorari. 9 Basically what that is is a fancy way of requesting 10 a higher court in this case look at what was done 11 in this proceeding and determine whether or not it 12 was legal. 13 When you make those decisions you're a 14 quasi-judicial body instead of a legislative body. 15 So you look at the facts, you listen to the 16 witnesses, you listen to the evidence, you review 17 staff's report, and you act as a judge. That's why 18 it's called quasi-judicial. You're sort of acting 19 like judges and you're deciding what's proper for 20 the City and what's proper under the law. 21 And so the higher court is called the Circuit 22 Court in this case. And so they filed a request 23 with the Circuit Court to quash, which means 24 basically to undo the action that you did, which was 25 approval of that plat. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  4 1 I have spoken to the applicant. We've also 2 communicated with the potential buyer for that 3 property, and they have requested and suggested 4 that rather than go through the litigation process 5 and spend all that time and money, would the City be 6 agreeable to clarifying an ambiguity in the code to 7 basically cure their complaint . 8 Their complaint is that the lots in the 9 subdivision should be 85 percent of the lots in the 10 adjacent subdivision, Blue Lake. So you have a lot 11 that's, we'll I'll just give an example, 10,000 12 square feet, then the lots in the adjacent 13 subdivision shall be no less than 8500 square feet. 14 One way to look at that . 15 Now, our code says that a property abuts 16 another property even if there's a big road in 17 between. And so you can read that language a couple 18 different ways because of how we have it in our 19 code. And so what we're recommending and suggesting 20 that this Commission do is authorize us to avoid the 21 court proceeding and basically change our regulation 22 and definition so that the subdivision can move 23 forward as it was originally suggested and have lots 24 that are not necessarily 85 percent of the adjacent 25 lots in Blue Lake. So that's what we're requesting. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  5 1 You'll see here the draft resolution that would 2 come before you. And so we would rescind the 3 current resolution so there would be nothing for the 4 court to consider. We basically voluntarily take 5 the action to undo it, clean up the code, and then 6 reconsider it again. That's the request of the 7 owner as well as the potential buyer for the 8 property. 9 Now, the alternative to that is we can go to 10 court. You guys can spend money and the time. 11 Unfortunately, these proceedings can take as long as 12 nine months, because you have oral arguments, you 13 have briefing involved. And then the loser of that 14 decision in Circuit Court can appeal to the Fifth 15 District Court of Appeal in Daytona Beach, and that 16 process can take anywhere from 6 to 18 months. It 17 would be very, very costly. 18 So we think and I'll allow, of course, Ronald 19 to opine, too, that the best course of action is to 20 address this issue through the code change and then 21 reconsider the application again rather than go 22 through the litigation. 23 Mr. Neibert, do you have anything to add? 24 MR. NEIBERT: No. We agree with that 25 recommendation. Mr. Schroth, Lori and I and JASKO COURT REPORTING SERVICES, INC. 352-250-7345  6 1 Mr. Zahn spoke about it. We feel it's the best 2 course of action. It eliminates any possibility of 3 litigation on this matter related to the ambiguity 4 at this point. 5 We feel we can get the rescission done, and 6 the amendment done, and the reconsideration of 7 Mr. Zahn's subdivision done by the end of this 8 calendar year. So he's comfortable with that; and 9 that would be our recommendation. 10 THE MAYOR: Commissioners, any questions? 11 COMMISSIONER MORIN: I just want to try and 12 understand it because it was a little confusing to 13 me. So we had allowed -- no. We had allowed them 14 to do 8500 square feet, but now we want to rescind 15 that and make it only do 10,000 square feet (sic). 16 MR. SCHROTH: No, the original approval 17 includes lots that are less than the 85 percent of 18 the lots 19 COMMISSIONER MORIN: I missed that. 20 MR. SCHROTH: -- in Blue Lake. 21 COMMISSIONER MORIN: Oh, I missed that. So all 22 the lots would be at least 85 percent. 23 MR. SCHROTH: Under their interpretation of the 24 code, every lot had to be 85 percent or more of the 25 size of the lots that were in Blue Lake. That's not JASKO COURT REPORTING SERVICES, INC. 352-250-7345  7 1 what we approved and that's not how we interpret the 2 provision of our code. 3 But to clear it up, we can change the 4 definition in the code and move forward with the 5 same plan for your consideration. That doesn't mean 6 you'll approve it. 7 MR. NEIBERT: Correct. 8 MR. SCHROTH: You may not. You have total 9 discretion based on the meeting to give it a thumbs 10 down. 11 But it would moot the lawsuit, because the item 12 complained about to the court is the approval that 13 you did do. And if you rescind that, well, then, 14 there's nothing for the court to consider. 15 And so we're recommending that approach rather 16 than litigate it. But if you want to litigate it -- 17 COMMISSIONER MORIN: No. 18 MR. SCHROTH: -- I'm happy to do that for you, 19 too. 20 COMMISSIONER MORIN: I just want to make sure, 21 again, I understand it, 'cause I want to make sure. 22 So that no lot would be less than 85,000 square 23 feet 8500 hundred square feet. 24 MR. NEIBERT: No, sir. 25 THE MAYOR: No. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  8 1 COMMISSIONER LEHEUP-SMITH: 85 percent of 2 the 3 COMMISSIONER MORIN: I'm sorry. I 4 understand. 5 MR. NEIBERT: We approved the subdivision with 6 lots that were less than the 85 percent, based on 7 adjacent or abutting subdivisions. 8 COMMISSIONER MORIN: Okay. 9 MR. NEIBERT: That's the ambiguity that they're 10 playing on. 11 The subdivision plan that Mr. Zahn submitted 12 will not change. There will still be lots that are 13 less than the 85 percent that meet our 85 percent 14 rule. We're just changing the code that will allow 15 that to be approved and eliminate any standing they 16 have under the ambiguity in the code to litigate 17 this matter under that provision. 18 COMMISSIONER MORIN: That's going to satisfy 19 them? Isn't that a technicality they're trying to 20 change for us so that it'd be 21 MR. NEIBERT: It's going to hack them off a 22 lot, yes. 23 COMMISSIONER MORIN: 'Cause they'll just come 24 back and 25 MR. NEIBERT: Well, they'll have to find JASKO COURT REPORTING SERVICES, INC. 352-250-7345  9 1 something else to sue us on. 2 COMMISSIONER MORIN: That's what I'm thinking. 3 MR. NEIBERT: So we're eliminating the basis of 4 their suit. Believe me, if they had other things 5 that they could litigate on it, they would have 6 probably included it in this suit under multiple 7 claims of violations. 8 COMMISSIONER MORIN: And the judge -- or we all 9 understand that the intent is to make so that it's 10 not as dense or it's as -- okay. 11 MR. NEIBERT: No, sir. We are changing our 12 code to allow Mr. Zahn's subdivision to be more 13 clearly allowable under the terms of our code. 14 COMMISSIONER MORIN: Okay. 15 THE MAYOR: Are you good? 16 COMMISSIONER MORIN: I got it. 17 THE MAYOR: All right. 18 Marie? 19 COMMISSIONER ALIBERTI: So, and they could, 20 they could dictate which, which development? They 21 picked Blue Lake, correct? Are you saying they 22 based it off of Blue Lake? 23 MR. SCHROTH: As an example they did. Because 24 our code says, if you have a right of way -- you can 25 read it to say, any right of way in between JASKO COURT REPORTING SERVICES, INC. 352-250-7345  10 1 subdivisions you can exclude. And if you do that, 2 you can basically pick and choose which subdivision 3 you want to use as your model for calculating 4 85 percent. 5 What we plan on doing is saying, if you abut 6 the subdivision, you actually have to abut it. 7 There's not roads in between, there are not canals 8 in between, there are not easements in between. So 9 it would clean that up. 10 COMMISSIONER ALIBERTI: Okay. 11 THE MAYOR: Are you good? 12 COMMISSIONER ALIBERTI: Yes. 13 COMMISSIONER MORIN: Yes. 14 THE MAYOR: Karen? 15 COMMISSIONER LEHEUP-SMITH: So it's the 16 difference between abut and adjacent, correct? 17 MR. SCHROTH: Yes. There's a provision in the 18 code that says abut, and abut is defined as -- 19 COMMISSIONER LEHEUP-SMITH: It has to touch. 20 MR. SCHROTH: It has to touch. 21 COMMISSIONER LEHEUP - SMITH: Physically touch. 22 MR. SCHROTH: That's the proposal we're 23 making -- 24 COMMISSIONER LEHEUP-SMITH: All right. 25 MR. SCHROTH: -- to change the code to state JASKO COURT REPORTING SERVICES, INC. 352-250-7345  11 1 that, yes, ma'am. 2 COMMISSIONER LEHEUP-SMITH: And he will -- in 3 this case he will then bring back his same plan, 4 which no longer is compliant? 5 MR. NEIBERT: We always believed it to be 6 compliant. The case is being argued because they 7 don't believe it's compliant because of the 8 ambiguity in the definitions of abut and adjacent. 9 COMMISSIONER LEHEUP-SMITH: And adjacent, 10 okay. 11 MR. NEIBERT: So we're eliminating that. We 12 always believed that the subdivision was compliant. 13 COMMISSIONER LEHEUP-SMITH: So he does not abut 14 Blue Lake; is that correct? 15 MR. SCHROTH: Does not abut Blue Lake; but 16 under the code definition, abut includes rights of 17 way, easements, streets. So let me illustrate it 18 this way. 19 COMMISSIONER LEHEUP-SMITH: Okay. 20 MR. SCHROTH: You and I are not really abutting 21 each other. 22 COMMISSIONER LEHEUP-SMITH: No. 23 MR. SCHROTH: We're not touching. 24 COMMISSIONER LEHEUP-SMITH: No, we're 25 adjacent. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  12 1 MR. SCHROTH: We ' re six feet apart. 2 COMMISSIONER LEHEUP-SMITH: Right. 3 MR. SCHROTH : Well, if our code said, or for 4 the purposes of this example, this space between us 5 you don't consider, and so we are abutting. That's 6 how they're reading that provision of the code. 7 COMMISSIONER LEHEUP - SMITH: Okay. 8 MR . SCHROTH: What we're going to do is change 9 that to say , no, we have to actually abut. If 10 there's a road in between us, if there's a canal in 11 between us , if there's an easement in between us, if 12 there's a lake in between us, we are not abutting. 13 COMMISSIONER LEHEUP-SMITH: Okay. 14 MR. SCHROTH: Abutting means to touch with 15 nothing, nothing in the way. 16 COMMISSIONER LEHEUP-SMITH : Okay. 17 MR. SCHROTH: So that's what we're seeking to 18 do is clear up that part of the code. 19 COMMISSIONER LEHEUP-SMITH: All right. 20 MR. SCHROTH: Now, there's another part of the 21 code that we relied on, adjacent, to approve this, 22 and your staff report's good. The issue is , do we 23 litigate over abut and adjacent for a year, and 24 spend probably 30 to $40,000.00, or do we fix it? 25 COMMISSIONER LEHEUP-SMITH: We fix it. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  13 1 THE MAYOR: Anything else, Karen? 2 COMMISSIONER LEHEUP-SMITH: No, sir. Thank 3 you. 4 THE MAYOR: Ms. Emily? 5 VICE MAYOR: No, I'm good. I understand it. 6 THE MAYOR: All right. I don't have anything 7 either. 8 So we've got the majority of the Commission 9 saying we're going to go ahead with Resolution 10 Number 20-79; is that correct? 11 MR. SCHROTH: It's to instruct us to place it 12 on the agenda. 13 THE MAYOR: That's correct, to place it on the 14 agenda for our next meeting. 15 MR . SCHROTH: For consideration. 16 THE MAYOR: All right. You've got a unanimous 17 consideration there. 18 MR. SCHROTH: Thank you. Thank you all. 19 THE MAYOR: Are we done? 20 MR. SCHROTH: We are done. 21 THE MAYOR: All right. 22 COMMISSIONER LEHEUP-SMITH: Do we need to leave 23 this here? 24 MR . SCHROTH: You can take it if you like. 25 It's public record. JASKO COURT REPORTING SERVICES, INC. 352-250-7345  14 1 THE MAYOR: Yeah, it's all public record. 2 All right, folks. We're adjourned then. Have 3 a good evening. Thank you all for staying. 4 (The shade meeting proceedings were concluded 5 at 7:25 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JASKO COURT REPORTING SERVICES, INC. 352-250-7345  15 1 CERTIFICATE OF REPORTER 2 3 STATE OF FLORIDA COUNTY OF LAKE 4 5 I, EVELYN M. ANDREWS, Registered Professional 6 Reporter, Registered Merit Reporter, Notary Public, State 7 of Florida, HEREBY CERTIFY THAT I was authorized to and 8 did stenographically report the foregoing proceedings; 9 and that the transcript, pages numbered 3 through 14, is 10 a true and accurate record of my stenographic notes. 11 I FURTHER CERTIFY that I am not a relative, or 12 employee, or attorney, or counsel of any of the parties, 13 nor am I a relative or employee of any of the parties' 14 attorney or counsel connected with the action, nor am I 15 financially interested in the action. 16 17 DATED this 28th day of October, 2020. 18 19 20 21 22 23 24 25 JASKO COURT REPORTING SERVICES, INC. 352-250-7345