HomeMy WebLinkAboutItem #01 Approval of Commission Meeting Minutes Held on May 7, 2013MINUTES
May 7, 2013, at 7:15 P.M.
REGULAR CITY COMMISSION MEETING
A. CALL TO ORDER
Mayor Vandergrift called the regular session to order at 7:15 p.m. in the Commission
Chambers of City Hall. Commissioner Keller gave the invocation, followed by the Pledge of
Allegiance to the Flag, led by Commissioner Grogan. City Clerk Eikenberry called roll and
declared a quorum present.
Roll Call: Commissioner Hood, Commissioner Wilsen, Mayor Vandergrift, Commissioner
Johnson (absent), and Commissioner Keller.
Also Present: City Attorney Cookson, City Manager Frank, City Clerk Eikenberry
B. PRESENTATIONS AND PROCLAMATIONS
Proclamation — National Water Safety Month — May 2013
Mayor Vandergrift proclaimed May 2013 as National Water Safety Month. The proclamation
was presented to Parks and Recreation Director Hayes and Parks Advisory Board Member Mary
Barber.
Proclamation - May 12 -18, 2013 as National Police Week and May 15, 2013, as "PEACE
OFFICERS MEMORIAL DAY"
Mayor Vandergrift proclaimed May 12 -18, 2013, as National Police Week and May 15, 2013,
as Peace Officers Memorial Day. The proclamation was presented to Police Chief Brown and
CACOPD Board Member Fred Wilsen.
Badge Pinning and Swearing -in Ceremony for Firefighter Paramedic Craig Anderson and
Firefighter Paramedic Juan Rivera
Fire Chief McNeil and Lt. Smothers awarded the two newest members of the Fire Department
with their badges. A brief history was given on the accomplishments that both men endured to
complete the courses needed for certification. Deputy Fire Chief Hoover conducted the
swearing in after both firefighters were pinned.
Presentation of Collected Birthday Party Funds to Fire Chief McNeil for the Fire
Department's Fully Involved Program
Cheryl King and Noah Hall -King presented $1200 to the Fully Involved Program which was
collected by Noah Hall -King at his 5"' birthday party. Contributions were requested by Noah in
lieu of gifts.
Fire Chief McNeil present Noah Hall -King with a plaque and pinned him with an official Ocoee
Firefighter badge.
Regular City Commission
May 7, 2013
Presentation /Action Items
Request from Doug Goddard with Access Life to Have Fees Waived for Use of Bill Breeze
Park and Lakefront Park for an event on November 15 and 16, 2013.
Doug Goddard thanked the City, Ocoee Police, and Ocoee Fire Department for all their support
with their Access Life event. Mr. Goddard further shared a brief slideshow to educate the
community on their event.
It is being requested that fees be waived for use of Bill Breeze Park and Lakefront Park on
November 15 and 16 th .
Mayor Vandergrift, seconded by Commissioner Wilsen, moved to waive the fees
for use of Bill Breeze Park and Lakefront Park on November 15 and 16 for the
Access Life event. Motion carried 4 -0 with Commissioner Johnson absent.
Request from the Rotary Club of .Ocoee to Have Fees Waived for Use of the Tom Ison
Seniors and Veterans Center for Texas Hold'em Fundraiser Event on May 10, 2013.
Rotary Club of Ocoee Member Fred Wilsen briefly announced that the Rotary Club is hosting
a 7 th Annual Texas Hold'em Fundraiser on Friday, May 10 at 6 p.m. All monies raised are
considered donations and will go to Ocoee High School Seniors. It is being requested that fees be
waived for use of the Tom Ison Seniors and Veterans Center.
Mayor Vandergrift, seconded by Commissioner Keller, moved to waive the fees
for use of the Tom Ison Senior and Veterans Center on May 1 oth for the Texas
Hold'em Fundraiser Event. Motion carried 4 -0 with Commissioner Johnson
absent.
Fiscal Year 2012 Audit Results and CAFR Presentation
Elden McDirmit, CPA commended the Commission and staff for having a great report. He
provided a PowerPoint presentation highlighting the City's financial report and positive
summary.
Commissioner Wilsen, seconded by Commissioner Keller, moved to accept the
Financial Summary Report as presented by Elden McDirmit, CPA. Motion carried
4 -0 with Commissioner Johnson absent.
Update /Overview of Wildfire Citv -wide Surveillance Camera Network
Police Chief Brown gave a brief summary on various camera program options that were
researched to help try expanding their current camera program. A presentation was shown on the
Wildfire Surveillance Camera Network which can be placed City -wide and allow for Police
Officers to access real time viewing from their vehicles.
Lt. Mike Bryant gave a brief explanation on the benefits of purchasing the Wildfire
Surveillance Camera Network that included partnering with local businesses in the community
and allowing them to be part of the system.
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Regular City Commission
May 7, 2013
Further discussion ensued regarding using budgeted funds toward the Wildfire Surveillance
Camera Network as a startup program which may eventually allow them to partner which
neighborhoods once a contract can be worked out.
Mayor Vandergrift, seconded by Commissioner Grogan, moved to move forward
with a pilot program with the Wildfire Surveillance Camera Network Motion
carried 4 -0 with Commissioner Johnson absent.
Police Chief Brown gave a quick update on the Red Light Camera advising that they have
received their permit with the State for the placement of the new three cameras that will be
installed.
C. COMMENTS FROM CITIZENS /PUBLIC
R. P. Monackey, 1820 Prairie Lake Blvd. inquired if the cameras would be insured by theft
insurance. Mayor Vandergrift said the City's insurance should cover them but he will have
staff check with the insurance company.
D. STAFF REPORTS AND AGENDA REVIEW
City Manager Frank made the following announcements:
1) The West Oaks Mall will be hosting an Emergency Services and Military Appreciation
Day at the West Oaks Mall — Saturday, May 18, 2013, from 11:00 a.m. until 4:00 p.m.
The event will consist of multiple law enforcement and military vehicles on display. The
City of Ocoee Police Department will be on hand completing child identification kits and
passing out free safety information. The West Oaks Mall will also have multiple family
events planned for this day.
2) Handgun Safety Class — Saturday, May 11, 2013, from 8:00 a.m. until 1:00 pm. This is a
free handgun safety class taught by Ocoee Police Officers. If interested please contact
Officer Patera Scott at 407 - 905 -3160 ext. 3024.
E. COMMISSIONERS ANNOUNCEMENTS
Commissioner Keller 1) announced it is Appreciation Day for the teachers and he would like
to congratulate all teachers. 2) thanked Governor Scott for being in the City today at Ocoee
Middle School. This is his third visit to Ocoee Middle School within the last year. Mayor
Vandergrift briefly shared that Ocoee Middle School is a pilot school toward modern
technology and may be bookless soon.
Commissioner Wilsen;— None
Commissioner Grogan — 1) announced that Ocoee is soon to have three renovated schools and
one new school coming up in the next few years. 2) announced the Ocoee Fire Department
would like to invite everyone to attend the Ribbon Cutting Ceremony of Fire Rescue Station 38
at 10 a.m. on Wednesday, May 15` Following the ceremony is an open house until 1 p.m. The
Fire Station is housed in a commercial unit of the Fountains West Shopping Plaza. Refreshments
will be served.
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Regular City Commission
May 7, 2013
Mayor vandergrift announced that there is a Community Meeting to discuss the current
design of the replacement project of Spring Lake Elementary on May 13 from 6 -7 p.m. He
further asked the clerk to please notice the meeting since more than one person from the
Commission may be present.
F. CONSENT AGENDA
Commissioner Keller, seconded by Commissioner Wilsen, moved to approve the
Consent Agenda Items #1 through #8. Motion carried 4 -0 with Commission
Johnson absent.
- - Jl
Motion carried 4 -0 with Commissioner Johnson absent
2. Appointment of Members to the CRA Board. (City Clerk Eikenberry)
As authorized by Ordinance 2006 -007 and Section 163.357(1)(c), Florida Statutes and as provided in the
interlocal agreement with Orange County, the governing board of the CRA shall consists of the five members of
the City Commission plus two individuals appointed by the City Commission. One of the appointed members
shall be nominated by Orange County and appointed by the City Commission. The term of office of the
appointed members shall be for four (4) years.
The terms of the appointed members Carla Bell Johnson and Ginger Corless have expired. Both members have
expressed an interest in remaining on the CRA board. The Orange County Board of County Commissioners
confirmed nomination of Carla Bell Johnson for reappointment to the Ocoee CRA Board.
Motion carried 4 -0 with Commissioner Johnson absent.
3. Approval of Traffic Enforcement Agreement for Willows on the Lake at Lake Johio
Homeowners' Association, Inc. (Police Chief Brown)
A traffic enforcement agreement is required by Florida State Statues 316.006(2) in order for the City of Ocoee
Police Department to have authority to enforce traffic laws upon the private roads within the limits of a gated or
private road subdivision. Willows on the Lake at Lake Johio Homeowners' Association, Inc. is requesting such
an agreement. The term of this agreement shall be two (2) years from the effective date and will automatically
renew for an additional two (2) year period unless terminated by either party with 60 day written notice.
Motion carried 4 -0 with Commissioner Johnson absent.
4. 'Approval of Purchase of Cross Match Mobile Wireless Fingerprint Scanners. (Police
Chief Brown)
Cross Match Mobile Wireless Fingerprint Scanners will enable officers to quickly identify individuals who are
not carrying valid identification by cross matching their fingerprints against the FDLE database. Six (6)
scanners, related software, and maintenance contracts (for a total cost of $14,970.00) would be purchased
through State of Florida contract 680 - 370 -07 -1 using State Forfeiture Fund monies.
Motion carried 4 -0 with Commissioner Johnson absent.
S. Approval of Prairie Lake Reserve Replat #2. (City Engineer Wheeler)
The Prairie Lake Reserve project was originally platted in June of 2007 as a 15.87 acre 168 unit townhome
project. Prairie Lake Reserve is located on Ocoee Vista Boulevard off of Clarke Road north of A.D. Mims
Road. At the August 7, 2012, City Commission meeting, the first replat of the subdivision was approved.
Replat #1 affected seven buildings. Because of market trends and the success of revitalizing sales, Park Square
Homes plans to carry forward the concept started under the first replat.
Motion carried 4 -0 with Commissioner Johnson absent.
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Regular City Commission
May 7, 2013
At the April 2, 2013, meeting, the City Commission approved the purchase of the property located at 678 S.
Bluford Avenue for a future stormwater treatment feature. This purchase was contingent on the results of the
Phase I Environmental Site Assessment and property appraisal. The environmental site assessment was
conducted by Terracon Consultants, Inc., of Winter Park, Florida, and did not find any recognized
environmental conditions that would indicate additional levels of assessment are warranted. The appraisal was
conducted by Florida Realty Analysts, Inc., of Altamonte Springs, Florida, and valued the property at
$458,000.00. This value is below the City's offer of $490,000.00. The City has made counter offers at the
appraised value, however the property owners are holding steadfast at the $490,000 price.
Public Works recommends the Commission approve proceeding with the purchase of the property at the
$490,000.00 price based on the site being free of environmental hazards and to avoid the costs of legal fees and
business damages that would be assessed if the eminent domain process is used to acquire the property. The
funding for this purchase is available in the Wekiva River Basin Capital Projects and available balances from
completed Stormwater Utility projects. The cost of the environmental assessment was $3,200.00 and the
appraisal was $3,150.00.
Motion carried 4 -0 with Commissioner Johnson absent.
ivouarse & Associates, Inc. was selected by the City Commission for one of three continuing contracts for
geotechnical testing services in Fiscal Year 2009 (RFP 09 -001). The contract was executed by the City on
January 6, 2008 with automatic renewal across five (5) separate one -year terms. Nodarse & Associates, Inc. was
acquired by Terracon Consultants, Inc. As with most such acquisitions, the old name has faded as the new
name comes to the front. With the completion of the corporate restructuring, Terracon Consultants, Inc. now
seeks to accept the role of geotechnical testing services contractor previously awarded to its predecessor firm.
Motion carried 4 -0 with Commissioner Johnson absent.
rLV i nas awarded the widening of State Road 50 from Good Homes Plaza to Vintage Village Lane. A portion
of the widening will replace the existing land- bridged causeway with a bridge structure over Lake Lotta.
Therefore, the City's existing 6" sanitary force main and 12" potable water main must be removed and replaced
with lines to be hung under the bridge. The City has entered into an agreement with FDOT, approved by
Commission on January 4, 2011, to include the relocation within FDOT construction project.
FDOT provided the contractor with the opportunity to value engineer the widening project, leading to financial,
constructability, and operational benefits to the final FDOT project. What resulted from this task was the
determination that the existing utilities needed to be relocated before the construction of the bridge, which
would result in a second relocation of the lines, with an estimated cost between $300,000 and $400,000, and
lengthening of the project timeframe. An alternative to a second relocation is the extension of both the existing
water and sewer lines from the north side of State Road 50 to the south side, where they can be temporarily
connected to similar Orange County utilities. The Orange County tie -ins will remain in use until the south
portion of the bridge is completed. It is anticipated the south portion of the bridge and utility work will be
completed within the first year of the project.
Motion carried 4 -0 with Commissioner Johnson absent.
Regular City Commission
May 7, 2013
G. PUBLIC HEARINGS
The Joint Planning Area agreement (JPA) was established with Orange County on February 11, 1994. The
agreement provides for annexation boundaries, Land Use designations, and notification requirements. Orange
County currently has a JPA with the City of Ocoee and City of Winter Garden. The proposed JPA amendments
include changes to the JPA boundary, changes to Future Land use designations of lands, and the inclusion of
facsimile as an authorized form of notification.
The proposed changes to the JPA Future Land Use Map are twofold. First, the western boundary line is being
adjusted to include all of the SR 429 Expressway and remove and add properties into the JPA. Second, the JPA
Future Land Use Map will be amended to change the future land use designation from Low Density Residential
(LDR) to Commercial (COM) for properties located on the south side of West Road and west of SR 429 and to
change the future land use designation from Low Density Residential (LDR) to Commercial (COM) for
properties located on the northeast corner of Roberson Road and Tomyn Blvd also called Windermere Road.
City Planner Rumer briefly explained that the proposed JPA amendments include changes to
the JPA boundary, changes to Future Land Use designations of lands, and the inclusion of
facsimile as an authorized form of notification. Tonight's action will not provide any legislative
action on any individual property. This is an agreement to be signed by the City and Orange
County. City Planner Rumer provided exhibits to better explain the proposed amendment.
Mayor Pro tem Keller opened the Public Hearing.
Jennifer Swanson, 1007 Spring Mill Drive, voiced her concerns with the development of the
parcel on Roberson Road and Tomyn Boulevard stating that she would like to see any
development that may occur in that area favorable to pedestrians and school children travelling
through there. Ms. Swanson inquired if there was going to be a zoning change and what type of
commercial would be allowed for that area. City Planner Rumer advised that this is not a
zoning change so that area will still maintain its low density residential county zoning. If they
were to annex into the City, then the City would consider rezoning and land use amendment
through a PUD; that would have to go through the approval and public hearing process.
Shawn Dagon, 1056 Spring Mill Drive, said he would like for the City to consider safety factors
and ensure that the development stays cohesive with the neighborhoods and surrounding areas.
He added that Tomlyn Boulevard is the main thoroughfare for school children walking from
various neighborhoods.
Gabriel Koteh, 1073 Spring Mill Drive, said he is part of the Safe Streets Coalition that recently
worked with the City of Winter Garden on the proposed gas station. He would like to make sure
that everyone comes together once it is time to consider development in that area.
Cecelia Bonifay, 420 S. Orange Ave. said she is an attorney with Akerman Senterfitt and is
before the Commission for one of the contractors that purchased property in that area. Her client
has reached out to several members of the Safe Streets Coalition group and is looking forward to
working with them. They are here tonight in support of moving forward with the JPA
amendment so they may proceed with the finalization of their plans. Mayor Vandergrift
ascertained that the prospective landowner would build an upscale doggie daycare facility.
Mayor Pro tem Keller Public Hearing was closed.
City Planner Rumer advised that he will send the transmittal letter to Orange County tomorrow
so that a public hearing can be scheduled.
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Regular City Commission
May 7, 2013
Commissioner Grogan, seconded by Commissioner Keller, moved to approve the
17 1h JPA Agreement Amendment as presented by staff. Motion carried 4-0 with
Commissioner Johnson absent.
me terms or iviemoers Jenmter Hopkins, Rose -Nancy Joseph, William Maxwell and Michelle Turner will
expire on May 2013. During the April 4th HRDB meeting, Rose -Nancy Joseph expressed her desire to not be
reappointed to the board, leaving one (1) vacancy on the board. There are currently two applications on file
from Sandria Foster and Margaretta McKenzie. Members Hopkins, Maxwell and Turner have indicated an
interest in being considered for reappointment for another term ending May 2016.
Staff is recommending that the City Commission reappoint Jennifer Hopkins, William Maxwell, and Michelle
Turner to the Human Relations Diversity Board with term ending May 2016, and consider appointing Sandria
Foster or Margaretta McKenzie to the Human Relations Diversity Board with term ending May 2016.
Commissioner Keller, seconded by Commissioner Wilsen, moved to reappoint
Jennifer Hopkins, William Maxwell, and Michelle Turner to the Human Relations
Diversity Board with terms ending May 2016, and consider appointing Margaretta
McKenzie to the Human Relations Diversity Board with term ending Mav 2016
After brief discussion on membership size and residency requirement to serve on
board, motion carried 4 -0 with Commissioner Johnson absent
Commissioner Wilsen, seconded by Commission Keller, moved that upon an
opening becoming available on the HRDB within the next 3 months, that Sandria
Foster automatically be appointed with a term ending May 2016 Motion carried 3
1 with Mayor Vandergrift opposing and Commissioner Johnson absent
11. Silver Bend HOA Appeal— Motion to Stay. (City Attorney Cookson)
The Silver Bend Homeowner's Association, Inc. (the "HOA ") has filed an appeal with the Circuit Court
appealing the decision of the City Commission to uphold City Staff's approval of a site plan for the proposed
Dollar General store on the corner of Silver Star Road and Silver Bend Boulevard. In connection with the
appeal, the HOA has filed a Motion to Stay requesting that the City Commission issue a stay upon the issuance
of any permits for the development of the property.
Mayor Vandergrift stated that Item 11 on the Agenda is the Silver Bend HOA Motion to Stay.
This is a quasi-judicial hearing where the City Commission will act in its quasi-judicial role as
opposed to its legislative role. This is not a public hearing. We will hear argument from both
the HOA's attorney and the Developer's attorney following the Staff presentation by City
Attorney Cookson.
Members of the City Commission should refrain from leaving the room during the hearing. If it
is necessary to leave during the hearing, we will break for a short recess.
I will now turn the time over to City Attorney Cookson for the Staff Report and further
instructions.
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H. REGULAR AGENDA
Regular City Commission
May 7, 2013
City Attorney Cookson made the following statement: on November 27, 2012, City Staff
approved a site plan for a proposed 12,480 sq. ft. Dollar General store located on Tract B of the
Silver Bend subdivision.
Because the building was less than 25,000 sq. ft., was a non - residential development and did not
contain any waivers, the plan constituted a small scale site plan and, pursuant to the City Code,
was reviewed and approved only on a staff level.
Neighboring residents appealed the decision to approve the site plan.
On February 5, 2013, this City Commission upheld the staff's determination that the site plan, as
approved was consistent with the Land Development Code and that Staff did not err in approving
the site plan.
The Silver Bend Homeowner's Association, Inc. filed an appeal with the Circuit Court appealing
the decision of the City Commission. In connection with that appeal, the HOA has filed a
Motion to Stay requesting that the City Commission issue a stay upon the issuance of any
permits relating to the development of the property.
Pursuant to the Rule 9.310 of the Rules of Appellate Procedure, the City Commission has
continuing jurisdiction and the discretion to grant, modify or deny such relief. In addition, the
City Commission may condition the stay on the posting of a good and sufficient bond, other
conditions, or both.
The HOA has requested that, due to limited funds, the City Commission issue the stay without
conditioning the same on the posting of a bond. The Developer is opposing the issuance of the
stay and has indicated that issuing the stay will cause the Developer to suffer substantial
financial and business harm including, but not limited to, delay damages, lost profits, legal
expenses, deprivation of property use, and additional acquisition and carrying costs.
Pending the hearing on issuance of the stay, the Developer has agreed not to seek issuance of
building permits on the property.
Both the HOA and the Developer are represented by competent counsel and both will have an
opportunity to argue their positions with respect to the Motion to Stay. The City Commission
has the final say with respect to the issuance of the stay and, if the stay is granted, what bond
amount or other conditions, if any, should be imposed in connection with the issuance of the
stay. In the event the City Commission decides not to issue the stay, the Developer would then
be free to pull building permits on the site.
If the City Commission grants the stay and the Developer and City ultimately prevail on the
appeal, the HOA could be liable for the damages the Developer incurred due to the stay being in
place. The purpose of the bond is to ensure that the HOA has adequate funds available to pay
such damages.
If the City Commission elects not to grant the stay, the Developer would then be entitled to apply
for permits for the development of the Property but would be doing so at its own risk.
At the end of the Staff Report provided, several possible motions are outlined for consideration —
but the ultimate decision and motion rests with the City Commission.
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Regular City Commission
May 7, 2013
Quasi - iudicial hearing
Like the initial appeal, this is a quasi-judicial hearing. Unlike the initial appeal, this is not a
public hearing. Counsel for both the HOA and the Developer will have an opportunity to
address you as counsel for parties to the lawsuit. They may call witnesses as needed, but the
matter is between the parties to the lawsuit and it would be improper for others to speak with
respect to the matter.
For this hearing you take off your legislative hats and put on your judicial hats. You are charged
with deciding the issue as a judge would — based on the evidence presented.
The issue before you is whether or not a stay should be issued with respect to the issuance of
building permits, and, if so, what amount of bond should be required to adequately protect the
Developer from damages relating to delays caused by the issuance of the stay should the
Developer and the City ultimately prevail on the underlying actions.
Order of Presentations
The order of the presentation is as follows:
1. Appellant (HOA) — Karen Consalo
2. Developer — David Theriaque
3. Rebuttal by Appellant
4. Rebuttal by Developer
5. Final Rebuttal by Appellant
At any point during the presentations, you are welcome to ask questions and seek clarification.
Ex Parte Communications
City Attorney Cookson advised, before they begin, given that this is a quasi-judicial hearing,
each Commissioner has an obligation to disclose any contact or communications had with any
party concerning this Motion to Stay. Before turning it over to the Mayor to conduct the hearing,
it would be appropriate to have each City Commissioner disclose the nature of any ex -parte
communications had with respect to this matter. Mayor Vandergrift, Commissioner Hood,
Commissioner Wilsen, and Commissioner Keller responded they had no such communications.
Mayor Vandergrift stated that the order of the presentation for this hearing is as follows:
First, the Appellant HOA represented by Attorney Karen Consalo will present as to why the City
should grant the HOA's Motion to Stay. Following Ms. Consalo, Attorney David Theriaque,
representing the Developer, will present as to why the City should deny the HOA's Motion to
Stay. Following the initial presentations, each shall be afforded a brief rebuttal with the
Appellant HOA having the right to speak last on the matter.
Mayor Vandergrift asked if there were any questions by the City Commission prior to
proceeding. There were none.
We will now commence with Attorney Karen Consalo for the HOA.
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Regular City Commission
May 7, 2013
Karen Consalo, Attorney for the Silver Bend HOA, explained that Rule 9.31 requires that this
appellant hearing must be heard before this body before it can be heard in circuit court. She
stated that if the Stay is granted with a bond, it is effectively denying the Stay because the
homeowners cannot afford to post a sizable bond. She stated that there is no judgment for any
amount of money; therefore, she feels a bond from the residents is not necessary. She said Dollar
General has already sued residents for having the nerve to file lawsuits against them, and they
could, at that time, try to sue for losses they felt they incurred. She stated the reason they want a
Stay is because this is a bell that can't be unrung. If construction is allowed to start, at least one
tree will go down, the parking lot will go in, the curb cut will be done, and the store may even be
built before the appellate process is done. She wondered how all that will be undone if the HOA
wins this case. She stated that the Court recognized that the case has merit and has ordered
Concept Development LLC to respond to an Order to Show Cause. She asked the Commission to
grant the stay, and not to request a bond.
David Theriaque, Attorney for Concept Development LLC, disputed the request for the Motion
to Stay and briefly explained the reasons why. He stated that the Order to Show Cause from the
court is a standard procedure in every certiorari proceeding in the State of Florida and does not
show that the court found that there is any merit in their particular case. He said they also have to
demonstrate to the Commission that they have a likelihood of success; their motion is devoid of
any representation that they have a likelihood of success. There are several due process issues
that the HOA raised in the Motion to Stay that they failed to raise during the Quasi - Judicial
Hearing. It is well established in Florida Law that if you fail to raise an issue during the initial
hearing, you have waived that right even if the issue had merit. It is undisputed that they failed to
raise any due process objections previously. Another issue they raised is that there is no
competent substantial evidence in the record to support your decision. He reminded them that
staff testified; the City's outside traffic engineer testified; he had brought in experts who
testified; etc. It seems far - fetched to state that City staff and the experts who testified did not
provide competent substantial evidence to support the Commission's decision. The third major
argument is that the Commission's order did not consider the Comprehensive Plan (Comp Plan).
He said City Planner Rumer specifically stated that the project met the requirements of the Comp
Plan as well as a few of the Commissioners stating the same during the making of the motion.
He advised why he filed a Motion for Sanctions for Ms. Consalo to withdrawal the baseless
claims in which Ms. Consalo had 21 days to withdraw those claims. She did nothing. Two of the
items that he considered baseless claims involved two petitioners that did not have the right to be
petitioners in this case; and the Comp Plan challenge because it is inappropriate in a certiorari
proceeding. Section 163.3215 F.S offers a statutory remedy that gives neighbors the appropriate
means to challenge their local government through a De Novo action if they feel the City made a
decision that violated the Comp Plan. He stated that a Motion to Stay, with no bond, will delay
the project, and everyone knows that delay kills a project. He added that Concept Development
LLC has spent over $240,000 to get to the property under control, do the engineering, pay for the
Quasi - Judicial Hearings; and a long delay would cause them to win by default because the
developer cannot carry the property that long. He stated he filed a Motion to Expedite the
proceeding and asked Ms. Consalo to join in that with him, and she refused. They would like this
body to place a Stay on his client's ability to proceed, post no bond, and don't expedite the
proceeding. There is a significant amount of money they are putting at risk; therefore, he stated
that this body should deny their Motion to Stay, and in particular, deny a Motion to Stay with no
bond attached.
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May 7, 2013
Karen Consalo stated there is no requirement in an appellate procedure to prove that they have
likelihood of success and to attempt to do so would take hours. She defended her previous
statement that an Order to Show Cause does prove merit; it is not an automatic response "form."
She repeated that Mr. Theriaque's Show Cause trying to refute their arguments was 50 pages
long. She said Mr. Theriaque may have found random a court that required proof of a likelihood
of success in some case, but it is not mandatory; this body has the discretion to grant the Stay
without a bond and certainly is not obligated to get into the merits of the case which the judge is
still deciding. She additionally stated that the Motion for Sanctions is just another financial tool
to drive the HOA out of the litigation. There are Sanctions against her and against the
homeowners. She said there is no real cost to Concept Development, but requiring a bond is one
more financial sword against the homeowner. She also said she needed to correct the facts; she
did refuse to ask for Expedition because she does not like telling judges how to do their job. She
added that, her firm did, however, allow extensions of time to Mr. Cookson and Mr. Theriaque's
firms to file a response to her petition. She concluded by saying she hope this body will not
require a bond; and will grant the stay recognizing that a building may get built that won't be
allowed to stay.
Mr. Theriaque said the Rules of Appellate Procedure do require that a likelihood of success
must be demonstrated. The case he cited was from last year in the Third District Court of
Appeals and it is binding on all courts in this District. Additionally, the 9.100, Rules of Appellate
Procedure specifically state that an Order to Show Cause is issued; it is pro forma, and it starts
the clock ticking on the amount of time for their response. This has nothing to do with merit in
this case. He stressed that the developer, if precluded from proceeding with this development,
will suffer damages. Everyone understands the realities of delays in contractual agreements.
Lastly, from a policy prospective, a Motion to Expedite is simply a request, not telling a judge
how to do his job. The city joined in that request. Regarding the Motion for sanctions, under
57.105 F.S, you are required to name all parties and their attorney of any baseless claims that you
feel they made. For instance, claims that the Sunshine Law was violated and a secret meeting
was being held, when the cameras were rolling the whole time and it clearly didn't happen. Or,
claims there was no second to the motion, when the minutes clearly reflect that there was a
motion and a second. The Sanction provides a safety net for them to remove the items that are
flat out wrong. He asked the Commission not to inappropriately hold up the client when there is
no likelihood of success. He additionally stated that the law is clear that they are entitled to a
bond.
Karen Consalo said that motions to Stay should be granted liberally by the lower tribunal. She
pled to the Commission not to "ring a bell" that can't be un -rung. She stated she felt they have a
50150 chance to win the case.
City Attorney Cookson referred to three options for motions that he recommended in the staff
report:
1. If, after hearing the arguments from both the HOA and the Developer regarding the
granting of the stay, the City Commission sides with the HOA, the City Commission
would also need to decide what, if any, bond amount or other conditions should be
imposed in connection with the stay. Proper motions in this regard could include: Move
that the City Commission grant the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA
without imposing a bond or other conditions in connection with such stay.
11 �
Regular City Commission
May 7, 2013
Or,
Move that the City Commission grant the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA
conditioned on the following conditions in connection with such stay: [state
conditions (i.e. the HOA posting a bond in the amount of $ on or before
___, 2013)].
2. If, after hearing the arguments from both the HOA and the Developer regarding the
granting of the stay, the City Commission sides with the Developer, a proper motion
would be:
Move that the City Commission deny the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA
City Attorney Cookson said the Commission's decision would be final until /unless it is
appealed. There was a lengthy discussion among the Mayor and Commission with regard to
history of the case thus far because Commission Grogan was not on the Commission at the time
of the original hearing. They also discussed consideration of the bond, adding a timeframe, and
asking the courts to expedite the procedure. Mr. Theriaque clarified that in his Motion to
Expedite he did ask that the oral arguments be heard within 40 days of the granting of that
motion. The court has not ruled one way or the other. He added that he has had certiorari
proceedings take as long as IS months, so he is concerned how long this will delay things.
Commissioner Wilsen made a motion that the City Commission Grant the HOA's
request for a Stay, pending full adjudication of the lawsuit against the City and
the developer filed by the HOA without imposing a bond or other conditions in
connection with such Stay.
Commissioner Keller asked if he seconded the motion would he still be able to amend it.
Motion died for lack of second due to further discussion and the motion being restated.
Commissioner Wilsen, seconded by Commission Keller, made a motion that the
City Commission Grant the Silver Bend Homeowner Association's request for a
90 -Day Stay, pending full adjudication of the lawsuit against the City and the
developer filed by the HOA without imposing a bond or other conditions in
connection with such Stay.
Vote was taken later due to subsequent discussion and amendment.
Commissioner Wilsen, seconded by Commissioner Keller, moved to amend the
motion to add that a request to expedite the proceedings is made to the court.
Motion carried 3 -1 with Commissioner Grogan opposing and Commissioner
Johnson absent.
Commissioner Wilsen, seconded by Commissioner Keller, moved to adopt the
original motion, as amended: granting the Silver Bend Homeowner Association's
request for a 90 -Day Stay, pending full adjudication of the lawsuit against the City
and the developer filed by the HOA without imposing a bond or other conditions
in connection with such Stay; and adding that a request to expedite the
proceedings is made to the court. Motion carried 3 -1 with Commissioner Grogan
opposing and Commissioner Johnson absent.
12 ,,:
Regular City Commission
May 7, 2013
I. STAFF ACTION ITEMS
None
J. COMMENTS FROM COMMISSIONERS
Commissioner Keller — None
Commissioner Wilsen — reminded residents that the 7"' Annual Texas Hold'em Fundraiser is
Friday, May 10` at Ison Center on Adair Street. Proceeds will go toward to Ocoee High School.
Commissioner Groan — reminded residents that the ribbon cutting for Fire Station 38 is next
Wednesday, May 15 at 10 a.m.
Mayor Vandergrift — said he would like to discuss the passion flower and the cost that the City
will incur in making those changes. Commissioner Keller objected to his comment since he was
specific in his motion in stating that the old logo would not be changed on anything until it was
wore out. He further emphasized road signs, City vehicles, or uniforms would not have logos
changed until they were worn out and needed to be replaced. Brief discussion ensued regarding
some of the concerns received by residents. Request was made by Commissioner Wilsen that the
entrance signs that they approved at the last meeting remain with the passion flower, but that
they have a discussion on the logo they would like to consider for those things they have not
changed yet. Commissioner Keller who was on the prevailing side of the recommended logo
change requested that they bring this back to the May 21, 2013, meeting for further discussion.
ADJOURNMENT
Meeting adjourned at 10:51 p.m.
Attest:
Beth Eikenberry, City Clerk
APPROVED:
City of Ocoee
S. Scott Vandergrift, Mayor
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