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[1. CALL TO ORDER / ROLL CALL / DETERMINATION OF QUORUM]
TAKE IT AWAY, TAMMI.[3.1 Quasi-Judicial Procedues and Sunshine Law Refresher - Attorney Tammi Bach Requested by Chair Grant]
SO WITH A COUPLE OF NEW MEMBERS IT FELT TO ME LIKE WE COULD USE A REFRESHER FOR SOME OF US, AND MAYBE THE FIRST TIME SOME OF YOU HAVE HEARD THIS ABOUT WHAT IS THE BOARD, WHAT ARE THE BOARD PROCEDURES? WHY IS IT HERE AND WHAT ARE THE ELEMENTS, IF YOU WILL, OF A QUASI-JUDICIAL HEARING AND THERE'S NOBODY BETTER TO TELL US THAN THAT THAN TAMMI.THANK YOU. SO, FIRST OF ALL, MY NAME IS TAMMY BACH.
I'M THE CITY ATTORNEY FOR THE CITY OF FERNANDINA BEACH.
I'VE BEEN HERE SINCE NOVEMBER 2007.
MY OFFICE IS LOCATED OVER AT THE PECK CENTER AT 516 SOUTH 10TH STREET ON THE SECOND FLOOR , AND I WELCOME VISITS OR CONVERSATIONS I'VE HAD WITH SOME OF YOU IN MY OFFICE BY PHONE, BY EMAIL, AND HOWEVER I CAN ASSIST YOU.
JUST LIKE CITY COMMISSIONERS, ALTHOUGH YOU DON'T HAVE CONTROL OF MY CONTRACT, I SERVE YOU AS MY CLIENTS JUST AS MUCH AS I SERVE CITY COMMISSIONERS AS MY CLIENTS SO YOU ALL CAN FEEL FREE TO CALL ME ANYTIME OR ASK QUESTIONS, AND ALSO, JUST LIKE THE CHAIR DID, IT DOESN'T HAVE TO TAKE THE CHAIR.
IF YOU WANT A REFRESHER IN PROCEDURES OR THE CRITERIA FOR VARIANCE, APPROVAL OR CONSIDERATION, JUST LET ME KNOW AND I'M HAPPY TO COME BACK AND DO ANOTHER ONE TONIGHT.
I HAVE MY CHILDREN HAVE TO HAVE THEIR FIRST CONFESSION AT CHURCH AT 6:00, SO I WILL NOT BE HERE AT FIVE, AND SO WE'LL HAVE HARRISON POOLE BE HERE TO REPRESENT YOU FOR THE ONE CASE YOU HAVE ON THE AGENDA TONIGHT.
I DO WANT TO SAY ABOUT THAT JUST WHILE I GET THE OPPORTUNITY, THE CASE DOES IMPLICATE AND DISCUSS SECTION 1.030.05 OF THE CODE.
TONIGHT'S MEETING IS FOR YOU TO APPLY THAT SECTION OF THE CODE AND LISTEN TO THE EVIDENCE.
IT IS NOT FOR, IF YOU WANT TO DISCUSS AFTER WHAT IT MEANS, WHERE THE CITY IS GOING, WHAT YOU'VE HEARD, DISCUSSED WHAT YOU'VE READ ABOUT IT, THAT'S FINE, BUT BEFORE THE CASE AND DURING THE CASE, PLEASE STAY FOCUSED ON THE CRITERIA AND APPLICATION OF THAT SECTION OF THE LAND DEVELOPMENT CODE.
OKAY, QUASI-JUDICIAL HEARINGS.
I WILL GET INTO THAT, BUT I THINK FIRST I'LL GO AHEAD AND TAKE CARE OF WE DID, GOSH, A YEAR OR SO AGO, I DID A PRESENTATION ON THE VARIANCE PROCEDURES FOR THE BOARD AND I TOUCHED A LITTLE BIT ON QUASI-JUDICIAL.
TODAY IS MORE HEAVILY ABOUT YOUR HEARING PROCESS AND EVIDENCE AND THINGS LIKE THAT, BUT JUST REAL QUICK, A VARIANCE IS THE DEFINITION OF A VARIANCE IS A VARIANCE IS PERMISSION FOR A PROPERTY OWNER TO BUILD SOMETHING WHICH WOULD OTHERWISE BE ILLEGAL UNDER THE LAND DEVELOPMENT CODE.
YOU ARE ISSUING VARIANCES THAT ARE DEVIATIONS FROM THE CODE.
OTHERWISE THEY WOULDN'T NEED A VARIANCE.
SO THE PURPOSE OF ALLOWING PEOPLE, TOWNSPEOPLE TO APPLY FOR A VARIANCE IS IT AVOIDS IN MANY, MANY CASES IT AVOIDS GOING TO COURT, AND WHY? BECAUSE IF THEY WANT TO BUILD SOMETHING, THEY DON'T THINK THE CODE SECTION IS FAIR AND THINGS LIKE THAT, AND ESPECIALLY HERE, AS OUR COMMUNITY BECOMES EVEN WEALTHIER, PEOPLE WILL HAVE NO PROBLEM SPENDING THOUSANDS OF DOLLARS TO PROVE THAT OUR CODE SECTION IS NOT FAIR.
SO THE VARIANCE PROCESS ALLOWS THEM TO BE HEARD, AND EVEN IF YOU DENY A VARIANCE ONCE THAT ACTION IN COURT IS REALLY HARD, IT'S HARD TO OVERTURN THIS BOARD'S ORDERS.
NOW, WE'VE HAD ONE THAT WAS QUASHED BY THE JUDGE.
WE KNOW, BUT IT IS GENERALLY HARD.
SO THAT MEANS PEOPLE COME HERE, THEY'RE HEARD EVEN IF THEY'RE DENIED.
A LOT OF TIMES THEY CHANGE THEIR PLAN.
THEY WANTED TO BUILD THREE HOUSES.
THE BOARD DENIED THE VARIANCE, AND THIS WAS A COUPLE OF JUDGES THAT CAME HERE FOR THEIR VARIANCE.
SO THEY CERTAINLY COULD HAVE HANDLED THEMSELVES AND THEY CHOSE JUST TO DO A DIFFERENT PLAN.
SO IT WORKS. KEPT US OUT OF COURT.
THE REASON FOR GRANTING A VARIANCE IS THE RATIONALE BEHIND THE LAW.
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ALLOWING VARIANCES IS THE LITERAL APPLICATION OF THE LAND DEVELOPMENT CODE WOULD CREATE SUCH A HARDSHIP THAT THE SUBJECT PROPERTY, THE ONE APPLYING, COULD NOT BE USED AT ALL OR IN SUCH AN UNREASONABLE WAY THAT IT AMOUNTS TO A TAKING OR INVERSE CONDEMNATION, AND THAT'S WHAT I MEAN ABOUT GOING TO COURT, BECAUSE THAT'S WHAT THEY'LL SAY. WE'RE TAKING THEIR PROPERTY IF WE DON'T ALLOW THEM TO DO WHAT THEY THINK THEY SHOULD.THEY COME HERE AND THEY'RE ABLE TO PLEAD THEIR CASE.
NONE OF THE CRITERIA SIX CRITERIA ACTUALLY SAY HARDSHIP, BUT THAT'S OVERALL WHAT HAS TO BE PROVEN, AND YOU HAVE TO HAVE EVIDENCE OF A HARDSHIP, AND A VARIANCE IS ONLY TO BE GRANTED WHEN THE CIRCUMSTANCES ARE UNIQUE TO THE APPLICANT'S PROPERTY ITSELF AND NOT SHARED BY OTHER PROPERTIES IN THE AREA.
SO WE'RE TALKING ABOUT SOMETHING PRETTY SPECIAL IN ORDER TO GET A VARIANCE AND SELF-CREATED HARDSHIPS AND I'M EXPLAINING THAT THE LAND, NOT THE NATURE OF THEIR PROJECT, NOT WHAT IT IS THAT THEY WANT TO DO, IS UNIQUE AND CREATES A HARDSHIP.
IT'S THE LAND ITSELF THAT CREATES THE HARDSHIP.
NOW, IN SOME CASES YOU'LL HAVE AN EXISTING STRUCTURE THAT THEY WANT TO REDEVELOP OR SORT OF REBUILD.
THEY NEED TO MAKE WHAT THEY HAVE COMPLY WITH THE CODE AND NOT US COMPLY WITH THEIR PLANS, MERE ECONOMIC DISADVANTAGE OR THE OWNER'S PREFERENCE AS TO WHAT THEY WOULD LIKE TO DO WITH THE PROPERTY IS NOT SUFFICIENT TO CONSTITUTE A HARDSHIP ENTITLING THE OWNER TO A VARIANCE , AND THEN NEITHER THE PURCHASE OF PROPERTY WITH ZONING RESTRICTIONS OR LAND DEVELOPMENT REGULATIONS ALREADY EXISTING NOR RELIANCE ON ZONING RESTRICTIONS, NOT CHANGING CONSTITUTES A HARDSHIP.
SO IF THEY PURCHASE PROPERTY THAT ALREADY HAVE ZONING RESTRICTIONS OR LAND DEVELOPMENT REGULATIONS THAT APPLY TO IT, AND THEY'RE NOT ALLOWED TO DO SOMETHING THAT THEY WANT TO DO, THAT'S NOT A HARDSHIP.
SO I HOPE THAT MAKES SENSE, BUT WE HAVE FOUND PROPERTY.
MR. KIRCHMEIER ON NORTH SIXTH STREET HAS THE ELEVATIONS ON HIS PROPERTY.
THE TOPOGRAPHY WAS SO STEEP AND I ACTUALLY WENT OUT THERE AND I COULDN'T HAVE CLIMBED IT.
SO THE PROPERTY DROPPED OFF A LOT.
SO HE WANTED TO BE ABLE TO BUILD A STRUCTURE THAT FROM THE LOWEST POINT WAS, I THINK, 30FT HIGH, 30FT INSTEAD OF JUST 25, AND THE BOARD THOUGHT, WELL, THAT MAKES SENSE.
SO THAT IS WHERE THE LAND IS UNIQUE.
SO THAT POINT YOU GUYS, I THINK, WERE WILLING TO SAY, YEAH, THAT MAKES SENSE.
IN THAT CASE, DID HE EVER COME BACK AND TRY TO DO ANYTHING AFTER WE [INAUDIBLE]? HE DID. SO WHAT HE DID WAS HE HIRED A LAWYER AND HIS ATTORNEY DECIDED TO TAKE HIM DOWN THE PATH OF IT'S CALLED THE ENVIRONMENTAL DISPUTE RESOLUTION ACT.
IT'S 70.51 OF THE FLORIDA STATUTES, AND THERE IT'S ANOTHER WAY THE STATE OF FLORIDA HAS GIVEN US TO TRY TO RESOLVE OUR DISPUTES THROUGH A MEDIATION PROCESS.
IT'S A PUBLIC MEDIATION, BUT THROUGH A MEDIATION PROCESS TO SEE IF WE CAN MEET SOMEWHERE IN THE MIDDLE, AND AT THAT MEETING WE HAD, HARRISON POOLE WAS ACTING AS A SPECIAL MAGISTRATE SITTING UP THERE.
WE WERE SITTING AT A TABLE, MR. KIRCHMEIER, HIS LAWYER, MYSELF AND STAFF, AND THEN IN THE AUDIENCE WERE SOME NEIGHBORS AND ONE NEIGHBOR PARTICULARLY THAT BORDERED AND HAD THE VIEW OF THE ROOF OF THE ALREADY EXISTING ACCESSORY STRUCTURE AND WHAT HAPPENED WAS WHEN THEY SPOKE, THE NEIGHBORS SPOKE, THEY SAID, WE DON'T MIND WHAT HE WANTS TO DO.
WE SEE SO LITTLE OF IT ANYWAY.
SO THAT WASN'T A VARIANCE PROCESS THAT WAS DIFFERENT.
THEY DIDN'T HAVE CRITERIA AND STRICT RULES TO APPLY.
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WOULD DO WAS KEEP THE EXACT SAME FOOTPRINT WHICH DID EXCEED THE 625 AND THAT HE WOULD BUILD NOT AS HIGH AS HE HAD ORIGINALLY PLANNED.IF HE COULD GET IN THAT SECOND STORY, WHICH I GUESS HE WAS JUST GOING TO HAVE A LOWER CEILING FOR HIS ELDERLY FATHER OR WHATEVER TO LIVE UP THERE, BUT HE UNDERSTOOD AND TOOK IT TO HEART THAT THEY DIDN'T WANT TO LOSE THEIR VIEW, AND THAT'S WHAT HE DECIDED TO DO, AND WE ALL SIGNED OFF AND AWAY WE WENT.
WELL, BUT THEN THE FINAL STEPS WERE THAT BECOMES JUST A RECOMMENDATION TO THE CITY.
CORRECT. OKAY, AND THEN THE CITY COMMISSION ULTIMATELY APPROVED THROUGH A RESOLUTION.
ALL RIGHT, YOU READY FOR QUASI-JUDICIAL PROCEDURES? OKAY, QUASI-LEGISLATIVE VERSUS QUASI-JUDICIAL, AND WE SAY QUASI-JUST BECAUSE WE'RE ON THE LOCAL GOVERNMENT LEVEL.
YOU'RE NOT A COURT AND YOU'RE NOT THE LEGISLATURE.
THOSE ARE BASICALLY SETTING POLICY.
ADOPTING ORDINANCES, RESOLUTIONS, THINGS LIKE THAT.
QUASI-JUDICIAL DECISIONS ARE APPLYING POLICY REGULATIONS TO A SPECIFIC DEVELOPMENT APPLICATION, AND THE HEARINGS HAVE TO BE CONDUCTED WITH MORE FORMALITY THAN A LEGISLATIVE PUBLIC HEARING, AND IT'S LIKE AN INFORMAL TRIAL.
THE IF THEY'RE APPEALED, THEY'RE APPEALED BY WRIT OF CERTIORARI, WHICH IS A VERY SPECIFIC TYPE OF APPEAL, AND THE TWO TYPES OF BASICALLY THE QUASI-LEGISLATIVE SETTING POLICY AND THE OTHER IS APPLYING THE POLICY.
YOU HAVE MUCH MORE DISCRETION IF YOU'RE A QUASI-LEGISLATIVE BOARD LIKE THE CITY COMMISSION.
THEY ALSO ACT IN A QUASI-JUDICIAL WAY TOO, BUT THEIR MAIN ROLE IS QUASI-LEGISLATIVE.
PLEASE ASK QUESTIONS THROUGHOUT.
THERE'S NO REASON TO MAKE THIS LIKE A COLLEGE LECTURE.
ALL RIGHT, WHAT IS A QUASI-JUDICIAL HEARING? IT'S A HEARING HELD BY THIS BOARD WHERE EXISTING POLICIES ARE APPLIED TO SPECIFIC PROPERTY AND DUE PROCESS.
THE BOARD MAKES FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE ISSUE, AND NOW WE KNOW FROM JUDGE ROBERSON QUASHING THE DECISION IN THE BRETT'S CASE, THAT WAS AN APPEAL THAT WILL BE DOING THOSE FINDINGS OF FACT RIGHT HERE IN THE CHAMBERS AND HAVING THEM SIGNED OFF ON, BECAUSE THAT WAS THE ISSUE THE JUDGE HAD, IS THAT THE BOARD ATTORNEY PREPARED THOSE FINDINGS FROM THE MOTION MADE AND THEN THE CHAIR SIGNED A COUPLE DAYS AFTER.
SO A VARIANCE IS ONE OF THE QUASI-JUDICIAL TYPES OF HEARINGS THAT WE HAVE.
WHY DO WE HAVE THEM? WE'VE HAD THEM SINCE 1993, AND THEY THE FLORIDA SUPREME COURT FELT LIKE THEY NEEDED TO BE MORE FORMAL THAN LEGISLATIVE DECISIONS, AND THAT DUE PROCESS NEEDED TO BE AFFORDED, FOR EXAMPLE, CROSS-EXAMINATION OF WITNESSES, AFFECTED PARTIES CAN COME UP AND ASK QUESTIONS, AREN'T GIVEN THE THREE MINUTE BUZZER AND THINGS LIKE THAT , BUT I WILL TELL YOU THAT SINCE I'VE BEEN HERE, WE DON'T HAVE ANY ISSUE IN FERNANDINA BEACH, BUT THERE ARE PLACES WHERE THEY HAVE LIKE A ONE MINUTE OR 30 SECOND TIME PERIOD FOR PEOPLE TO SPEAK, MEMBERS OF THE PUBLIC TO COME UP AND SPEAK ABOUT SOMETHING.
ALL RIGHT, I'M NOT GOING TO READ ALL THE DEFINITIONS.
I DID SEND THIS POWERPOINT TO ALL OF YOU.
SO WE HAVE AN APPLICANT COMPETENT, SUBSTANTIAL EVIDENCE DECISION MAKING BODY.
THAT'S YOU. EX PARTE COMMUNICATION.
SO EX PARTE IS SOME OF YOU KNOW THIS AND ACTUALLY PROBABLY HAD LATIN IN SCHOOL, BUT EX PARTE IS A LATIN TERM MEANS WITHOUT THE OTHER PARTY PRESENT. SO YOU WOULD BE HAVING AND JUST TO REMIND YOU, THE CITY IS A PARTY.
SO IF YOU HAVE A CONVERSATION OR AN EMAIL EXCHANGE WITH CITY STAFF, THAT'S AN EX PARTE COMMUNICATION BECAUSE ALTHOUGH YOU'RE HERE FOR THE CITY AS ITS BOARD OF ADJUSTMENT AND THESE QUASI-JUDICIAL HEARINGS, WE HAVE THE PARTIES WHICH ARE THE CITY AND THE APPLICANT OR THEIR AGENT, AND THEN YOU ALL SITTING UP THERE AS UNBIASED JUDGES, BASICALLY, AND STOPPING BY AS YOU DRIVE THROUGH THE NEIGHBORHOOD FOR AN UPCOMING CASE AND THE HOMEOWNERS OUT THERE AND YOU PULL OVER AND CHAT WITH THEM, THAT'S EX PARTE AND WHAT I WOULD LIKE YOU TO DO IS TO MAKE SURE WHEN YOU DISCLOSE YOUR EX PARTE COMMUNICATIONS, YOU GIVE AS MUCH SPECIFICITY AS YOU'RE COMFORTABLE.
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I THINK YOU NEED TO SAY MORE THAN THAT.WE TALKED ABOUT THEIR APPLICATION.
WHAT IF SOMEBODY CONTACTS US? I KNOW WE GOT AN EMAIL FROM SOMEBODY WHO I DON'T THINK HAS ACTUALLY COME BEFORE THE BOARD YET, BUT--THAT'S CONSIDERED EX PARTE.
IF THEY EMAIL YOU, YOU READ THE EMAIL.
THAT'S A COMMUNICATION EVEN IF YOU DON'T REPLY.
AFFECTED PARTIES RIGHT NOW IT'S ANY PROPERTY OWNER, RESIDENT OR LOCAL GOVERNMENT.
ANY RESIDENT OF THE CITY, AND MATERIAL EVIDENCE IS EVIDENCE THAT HAS A LOGICAL RELATIONSHIP TO ONE OR MORE ISSUES THAT ARE RAISED BY THE APPLICATION OR THE LAWS AND THE REGULATIONS PERTAINING TO THE MATTER.
ANY QUESTIONS ON DEFINITIONS? BARRY? YEAH, WHAT IF I KNOW IF YOU'RE ON A JURY, FOR INSTANCE, YOU CAN'T GO OUT AND POKE AROUND THE PROPERTY OR WHEREVER THE ACCIDENT HAPPENED OR WHATEVER.
WHY ARE WE ALLOWED TO DO THAT? GO OUT IF [INAUDIBLE] THE CASE, YOU GO OUT AND LOOK AT THE PROPERTY, TALK TO THE OWNER.
I MEAN, WHY ARE WE SO MUCH DIFFERENT THAN A JURY? YOU'RE SO MUCH DIFFERENT THAN A JURY BECAUSE WE'RE ON THE LOCAL GOVERNMENT LEVEL AND WE'RE NOT-- FOR EXAMPLE, IF YOU'RE IN A CIVIL TRIAL, A CRIMINAL TRIAL IS TOTALLY DIFFERENT THAN ANYTHING WE'RE TALKING ABOUT BECAUSE SOMEBODY'S, YOU KNOW, AT RISK OF PENALTIES IN A CIVIL TRIAL, YOU ARE ALLOWED TO, AS JURORS, GO OUT AND VISIT THE SITE, YOU CAN GO AS A GROUP.
THE COURT WILL TAKE YOU IN A VAN AND TAKE YOU OUT TO THE SITE.
THERE ARE PROBLEMS VISITING CRIME SCENES, BUT IT'S BEEN DONE IN CRIMINAL CASES.
YOU'RE WELCOME. ALL RIGHT, SO SOME KEY POINTS.
THE DECISION MAKING BOARD HAS TO MAKE YOUR DECISION BASED ON TESTIMONY THAT'S HERE IN FRONT OF YOU.
SO IT SHOULDN'T MATTER WHO COMES BEFORE YOU.
EVERYBODY HAS LOOKED AT THE SAME WAY.
IS THERE A PROCESS FOR RECUSING ONESELF? THERE IS.
I CAN TALK TO YOU ABOUT THERE'S TWO REASONS WHY AND I'LL GET INTO THAT LATER.
MY NEIGHBOR IS GOING TO BUILD A BUILDING.
YOU DON'T HAVE TO RECUSE YOURSELF.
YOU DON'T HAVE TO. I'M JUST MAKING THAT UP.
OKAY. THERE ARE TWO REASONS WHY YOU WOULD WANT TO RECUSE YOURSELF.
COMMON KNOWLEDGE IS SOMETHING YOU CAN USE TO MAKE YOUR DECISION.
THE RECORD IS REALLY IMPORTANT BECAUSE IF THERE'S AN APPEAL, THE CITY CAN APPEAL THE DECISION OF THIS BOARD, TOO, BUT IF THERE'S AN APPEAL, IT'S BASED ONLY ON THE RECORD. SO THERE'S NO MORE EVIDENCE THAT'S ALLOWED TO BE PRESENTED TO THE JUDGE OR TESTIMONY.
SOMEBODY'S GOING TO END UP TRANSCRIBING THE RECORDING OF YOUR MEETING, AND THEN THAT TRANSCRIPTION WILL BE USED AS PART OF THE RECORD, ALONG WITH PHOTOGRAPHS, STAFF REPORT AGENDAS. THE TESTIMONY HAS TO BE RELEVANT, CREDIBLE AND ORIENTED TO THE STANDARDS THAT ARE IN THE CODE, THE LAND DEVELOPMENT CODE AND THE COMPREHENSIVE PLAN.
RELEVANT, RELEVANT, RELEVANT EVIDENCE.
WHEN AND WHERE ARE QUASI-JUDICIAL HEARINGS NEEDED? THE CITY COMMISSION ON THE LEFT VARIANCES OBVIOUSLY ARE HEARD BY THE BOARD OF ADJUSTMENT , BUT THE COMMISSION HEARS PLATS, ANNEXATION ORDINANCES, ZONING ORDINANCES, AND THEN THE CODE ENFORCEMENT AND APPEALS BOARD, HDC, AND THEN YOU ARE BOARD OF ADJUSTMENT AGAIN FOR VARIANCES AND APPEALS.
I SHOULD HAVE APPEALS UNDER THAT TO THE MAYOR OR THE CHAIR LEADS THE QUASI-JUDICIAL HEARING PROCESS.
THE BOARD MEMBERS ARE ASKED TO DISCLOSE EX PARTE COMMUNICATIONS AT THE BEGINNING BEFORE WE TAKE EVIDENCE AND TESTIMONY, AND USUALLY THE CHAIR IS GOING TO ASK YOU AT LEAST THAT'S HOW WE'VE BEEN DOING IT, I BELIEVE, MR. GRANT, AT THE BEGINNING, LET'S SAY YOU HAVE SIX CASES.
YOU NEED TO JUST DISCLOSE THOSE RIGHT OFF THE BAT.
NOW, IF YOU HAVE MORE THAN ONE CASE AND YOU REMEMBER AFTER ONE OF THE CASES, BUT BEFORE THE CASE, YOU HAVE THE EX PARTE, YOU CAN SAY, I FORGOT TO AND GO AHEAD AND DISCLOSE.
I USUALLY WILL PRESENT THE QUASI-JUDICIAL PROCEDURES.
ALL RIGHT, THE ORDER FOR THE PROCESS IS STAFF PRESENTS THE CASE.
THE APPLICANT THEN PRESENTS THEIR CASE.
THERE'S CROSS-EXAMINATION THAT'S PERMITTED BETWEEN STAFF AND THE APPLICANT.
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THE CHAIR WILL OPEN THE PUBLIC HEARING TO AFFECTED PARTIES AND ANYBODY JUST OBSERVING YOU CLOSE THE PUBLIC HEARING, I THINK THAT PART IS REALLY IMPORTANT BECAUSE AS YOU ALL ENGAGE IN DISCUSSION OR IF YOU HAVE QUESTIONS FROM THE APPLICANT OR STAFF, YOU'RE NOT GOING TO BE ALSO COMMUNICATING, HAVING CONVERSATION WITH THE AUDIENCE THAT JUST GETS IT CAN GET OUT OF HAND.SO WHEN PEOPLE ARE AFTER YOU CLOSE THE PUBLIC HEARING.
IF YOU ALL WANT, THERE MAY BE A TIME WHEN YOU ALL REALLY WANT TO OPEN IT BACK UP, AND IF IT'S NOT THE CHAIR DECIDING ONE OF YOU OTHER BOARD MEMBERS WANTS TO DO THAT, THEN ALL YOU HAVE TO DO IS JUST ASK THE CHAIR.
JUST SAY POINT OF ORDER FOR EXAMPLE, OR SOMETHING TO GET THE CHAIR'S ATTENTION.
PUT YOUR LIGHT ON AND YOU CAN SAY, I THINK WE NEED TO HEAR MORE FROM THE PUBLIC.
THAT'S OKAY; JUST MAKE SURE THAT YOU'RE OPENING AND THEN CLOSING AGAIN, BECAUSE IF THEY'RE WAVING FROM THE BACKGROUND, MOST PEOPLE UNDERSTAND THAT THEY HAD THEIR CHANCE TO SPEAK, BUT THEY'RE NOT PART OF THE HEARING.
IS THAT DIFFERENT THAN QUESTIONS TO THE APPLICANT? IF WE'RE IN THE BOARD DISCUSSION, HAS THAT CLOSED DOWN? NO, SO BOARD DISCUSSION YOU CAN ALWAYS ASK QUESTIONS OF THE APPLICANT [INAUDIBLE] AND JUST REMEMBER TOO AGAIN, AS OUR COMMUNITY GROWS UP AND GROWS AND GROWS, YOU MAY HAVE AFFECTED PARTIES THAT BRING AN ATTORNEY IN HERE.
SO THE APPLICANT, I THINK, IS BEST.
DOES THE APPLICANT WISH TO PROVIDE ANYTHING FURTHER? BECAUSE THEN IF THERE'S SOMETHING THAT THEY WANT TO RESPOND TO THAT'S BEEN SAID, THEY HAVE THAT OPPORTUNITY, AND EVEN THOUGH AFFECTED PARTIES HAVE RIGHTS TO CALL THEIR OWN WITNESSES AND HIRE ATTORNEYS AND EXPERTS TO COME IN HERE THE WAY THAT IF I HAD A, YOU KNOW, THE CITY AND THE APPLICANT ARE ON THIS LEVEL OF IMPORTANCE IN TERMS OF PEOPLE TESTIFYING HERE AND TAKING EVIDENCE AND AFFECTED PARTIES ARE HERE, THEY'RE IMPORTANT, BUT IT'S NOT THEIR PROJECT.
SO THEY GET ALL THE SAME RIGHTS, BUT FOR EXAMPLE, IN THE COURT, THE AFFECTED PARTIES AND WHAT THEY SAY ARE TO BECOME PART OF THE RECORD, AND IF THE EVIDENCE IS RELEVANT, THEN YOU ALL SHOULD BE WEIGHING THAT TESTIMONY THE SAME, BUT IN TERMS OF THE DUE PROCESS RIGHTS, THE APPLICANT AND THE CITY GET THE MOST, IF YOU WILL.
OKAY, BOARD DISCUSSION AFTER APPLICANT COMMENTS AND THEN A MOTION AND A SECOND.
WE DON'T FOLLOW ROBERT'S RULES OF ORDER HERE, AND WE DO THAT BECAUSE YOU IF YOU SWITCH THE ORDER AND DO A MOTION FIRST, THAT'S FINE TOO, BUT I KNOW THAT OUR BOARDS HERE FOR ALL THESE YEARS HAVE JUST SEEMED TO BE MORE COMFORTABLE STARTING TO DISCUSS, OKAY, WHAT DO YOU GUYS FEEL LIKE? AND THEN THE CHAIR CALLS FOR A MOTION, BUT IF YOU WANTED TO MAKE ONE FIRST, SOME PEOPLE HAVE A LOT OF EXPERIENCE ON OTHER BOARDS FOLLOWING ROBERT'S RULES OF ORDER STRICTLY, THAT'S FINE TO MAKE A MOTION.
SO IF ONE OF YOUR FELLOW BOARD MEMBERS TOO SAYS THAT'S PROBABLY BECAUSE THEY'RE USED TO IT THAT WAY.
YOU MAKE A MOTION AND THEN YOU CAN HAVE THE DISCUSSION.
THAT'S RIGHT. THAT'S RIGHT, AND THEN THE RECORDING SECRETARY.
MR. CHAIR, YOU ASK THEM TO CALL THE VOTE AND IT SHOULD BE A ROLL CALL VOTE EVERY TIME FOR THESE, WHICH MEANS EACH OF YOU WILL SAY YOUR VOTE. OKAY, THE BURDENS OF PROOF.
I HAVE SOME CASES LISTED HERE.
THE BURDEN IS UPON THE LANDOWNER, THE APPLICANT WHO APPLIES FOR THE VARIANCE TO DEMONSTRATE THAT THE APPLICATION COMPLIES WITH THE REASONABLE PROCEDURAL REQUIREMENTS AND IS CONSISTENT WITH THE APPLICABLE COMPREHENSIVE PLAN, BECAUSE EVEN IF YOU VARY FROM THE LAND DEVELOPMENT CODE, WHICH YOU DO WITH A VARIANCE, YOU STILL HAVE TO BE CONSISTENT WITH THE COMPREHENSIVE PLAN.
THE BURDEN THEN SHIFTS TO THE GOVERNMENT IF THE APPLICANT HAS PROVEN THEIR CASE.
THEN IT SHIFTS TO THE GOVERNMENT TO DEMONSTRATE THAT DENYING THE DEVELOPMENT APPLICATION OR RECOMMENDING DENIAL ACCOMPLISHES OUR LEGITIMATE PUBLIC PURPOSE IS NOT ARBITRARY, DISCRIMINATORY OR UNREASONABLE.
QUASI-JUDICIAL DECISIONS ARE BASED ON FACTS AND DO NOT SET PRECEDENTS.
DO NOT SET PRECEDENTS, BECAUSE I HEAR THAT EVERY WEEK.
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PRECEDENTS WITH YOUR DECISIONS.SO YOU'VE PROBABLY HEARD ME TALK ABOUT BEFORE.
OKAY, COMPETENT, SUBSTANTIAL EVIDENCE.
SO AN EXAMPLE, OUR PROPERTY VALUES ARE GOING TO GO DOWN.
THAT'S A STATEMENT OF OPINION, AND I WILL BE REAL STRAIGHT WITH YOU HERE.
THIS IS HOW FAR THAT YOU SHOULD WEIGH THAT OPINION IS DOWN HERE.
TRULY BECAUSE YOU CAN ASK A FOLLOW UP QUESTION.
YOU CAN SAY, DO YOU HAVE EXPERIENCE IN PROPERTY APPRAISAL? YOU KNOW, EVEN A REALTOR HAS MORE EXPERIENCE WITH WHAT PROPERTIES ARE VALUED AT THAN A RETIRED ENGINEER.
THANKS A LOT [CHUCKLING] BUT I MEAN, I'M TRYING TO MAKE THE POINT AND I MAKE THEM BOLDLY SO IT'S GOING TO INCREASE TRAFFIC.
THAT'S NOT NECESSARILY TRUE THOUGH.
IF IT IS GOING TO INCUR MORE PEOPLE ON THE ROAD ASSOCIATED WITH THE PROJECT BY VIRTUE OF A HOTEL, THEY'RE GOING TO BRING 30 MORE CARS IN THERE BECAUSE THEY'VE GOT 30 ROOMS. THAT IS GOING TO AFFECT TRAFFIC.
IT'S STILL YOUR OPINION BASED ON.
I'LL TELL YOU THE REASON WHY IT'S NOT A FACT, BECAUSE HOW DO YOU KNOW THAT HOTEL IS NOT GOING TO ONLY CATER TO DISABLED PERSONS THAT ARE BEING DRIVEN HERE IN A CHARTER BUS? HOW DO YOU KNOW IT'S NOT? RIGHT, AND THAT'S WHY IT'S NOT A FACT.
YOU CAN DISAGREE WITH ME AND APPLY IT THE WAY YOU WANT.
ALL I'M HERE TO DO IS TRAIN, NOT ARGUE.
THAT'S IN MY OPINION, WHAT IS FACT.
IT'S NOT FACT THAT ANY PROJECT IS GOING TO.
THAT DOESN'T MEAN THAT'S MY OPINION.
DO YOU UNDERSTAND THE DIFFERENCE? I LIVE HERE TOO, BUT IT IS NOT FACT TO SAY, FOR IT'S DEFINITELY GOING TO THERE'S AN ADDITIONAL RESIDENTIAL UNIT.
WE ARE DEFINITELY INCREASING TRAFFIC.
I DON'T THINK THAT'S A FACT. I THINK THAT'S AN OPINION.
UNTIL THE PROJECT IS BUILT AND THEY'RE AND THEY'RE DRIVING AROUND, IT'S STILL OPINION.
SUBJECTIVE PREFERENCES: I LIKE IT; I DON'T LIKE IT.
THOSE ARE NOT FACT BASED AND DON'T CONSTITUTE COMPETENT, SUBSTANTIAL EVIDENCE, CONJECTURE OR ASSUMPTIONS ARE IRRELEVANT TO THE ISSUES. ANY QUESTIONS OR ARGUMENTS? [CHUCKLING] DISCUSSION.
I MEAN, IN MY WORLD, I OPERATE IN WHAT I HAVE SEEN NOW, AFTER ALL THESE YEARS, AND I'VE BEEN TALKING WITH STAFF ABOUT THIS, THE ONLY JUDGE, UNLESS HE'S UNAVAILABLE BECAUSE HE'S OUT SICK OR SOMETHING.
THE ONLY JUDGE THAT IS GOING TO SEE OUR CASES IS JUDGE ROBERSON, THE SAME ONE THAT SAW THE BRETT'S APPEAL, AND BECAUSE WE'RE CREATING A RECORD, I'M JUST GOING TO SAY THAT I AM GETTING A VERY GOOD IDEA UNDERSTANDING OF HOW JUDGE ROBERSON THINKS AND HOW HE WORKS THROUGH CASES AND FACTS, AND SO WHEN I GIVE ADVICE TO THE CITY OR THE CITY COMMISSION, EVEN ONE ON ONE AND I SAY I'M HERE TO PROTECT THE CITY, WHICH MEANS FUNDS AND TIME, AND THERE'S TIMES WHERE I WOULD RATHER IF I'M GOING TO ADVISE YOU, YOU'RE GOING TO GET SUED ONE WAY OR ANOTHER. THE SUIT FROM THE CITIZENS IS GOING TO BE A HECK OF A LOT CHEAPER THAN THE SUIT FROM THE DEVELOPER OR VICE VERSA.
SO I HAVE TO THINK ABOUT WHO OUR JUDGE IS GOING TO BE AND WHAT KIND OF DECISIONS THAT THEY'VE MADE AND WHERE THEY STAND BECAUSE THEY'RE UNBIASED WHEN THEY LOOK AT THE CASES, BUT THERE ARE CERTAIN THINGS.
WE ALL HAVE UNCONSCIOUS BIASES, FOR EXAMPLE.
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THIS IS AN EXAMPLE.TESTIMONY FROM AN APPRAISER ABOUT THE IMPACTS OF A SIMILAR PROJECT.
IS IT TRULY SIMILAR? DOES THE RECORD REFLECT THAT OR ARE YOU JUST RELYING ON KNOWLEDGE OF THE AREA.
PROPERTY OWNERS TESTIFYING IN DETAIL ABOUT PERSONAL KNOWLEDGE OF THE APPRAISALS OR SALE PRICES OR CANCELED SALES CONTRACTS RESULTING FROM SIMILAR DEVELOPMENT OR FROM THE PENDING APPLICATION.
THEY'RE TANGIBLE, THEY'RE FACTS.
SO WHAT THAT MEANS IS IF YOU HAVE YOUR OWN RELEVANT KNOWLEDGE, EXPERTISE OR WHATEVER, THEN YOU NEED TO EXPLAIN THAT BEFORE YOU VOTE OR YOU SHOULD EXPLAIN IT BEFORE YOU VOTE. ANY QUESTIONS? THIS ONE'S KIND OF IMPORTANT.
OKAY, EX PARTE COMMUNICATIONS.
FOR EXAMPLE, I'M YOUR BOARD ATTORNEY, SO YOU CAN TALK TO ME ANY TIME, AND IF I DO REPRESENT STAFF, YOU'LL HAVE ANOTHER ATTORNEY UP HERE TO REPRESENT YOU, BECAUSE I THEN HAVE A CONFLICT, BUT YOU CAN ASK ME ANY TIME, AND IT'S NOT AN EX PARTE COMMUNICATION.
THAT LOOKS WEIRD. I DID A REPLACE.
I TRIED TO CHANGE IT TO BOARD AND YEAH, SO WITHOUT THE OTHER PARTY'S KNOWLEDGE, THAT DOESN'T MEAN THEY HAVE TO BE THERE NECESSARILY, BUT AT LEAST WITH THEIR PERMISSION AND THEIR KNOWLEDGE, THEN IT'S NOT EX PARTE, AND THIS IS THE CLASSIC EXAMPLE.
PROSECUTOR MEETS WITH THE JUDGE WITHOUT THE PUBLIC DEFENDER PRESENT, AND THAT SHOULD SAY A COMMISSIONER MEETS WITH THE APPLICANT OR AN OPPONENT WITHOUT THE PUBLIC PRESENT ATTRIBUTES OF EX PARTE COMMUNICATIONS.
THEY OCCUR OUTSIDE THE OFFICIAL HEARING.
THEY'RE EITHER FOR OR AGAINST THE APPLICATION.
THEY DON'T ALLOW THE OTHER SIDE AN OPPORTUNITY TO BE HEARD OR TO RESPOND AND THEY CAN BE WRITTEN VERBAL, ELECTRONIC, ETCETERA.
ANY QUESTIONS? WHAT'S A BOARDER? COMMISSIONER. IT'S US.
ALL RIGHT, EX PARTE COMMUNICATIONS ARE NOT PRESUMED PREJUDICIAL.
THIS IS UNDER STATUTE 286, CHAPTER 286.
I THINK IT'S 0.012, AND THESE COMMUNICATIONS ARE NOT PRESUMED PREJUDICIAL IF DISCLOSURE IS MADE BEFORE OR DURING THE PUBLIC MEETING, AND THE STATUTE SAYS AND WE DO, YOU HAVE TO HAVE A RESOLUTION OR ORDINANCE THAT ALLOWS FOR IT.
SO IN THE LAND DEVELOPMENT CODE WE HAVE AND I'M GOING TO MARRY THESE TWO PROCEDURES, THE LAND DEVELOPMENT CODE HAS HAS PROCEDURES THAT ARE VERY SIMILAR TO PROCEDURES THE CITY COMMISSION HAS ADOPTED SEPARATELY.
SO WE'VE GOT A RESOLUTION FOR THE COMMISSION.
YOU ALL HAVE AN ORDINANCE IN THE LAND DEVELOPMENT CODE.
YOU MUST DISCLOSE INFORMATION FOR THE RECORD, THE SUBJECT OF THE COMMUNICATION, WRITTEN COMMUNICATIONS, JUST SUBMIT THEM INTO THE RECORD IS THE BEST WAY TO DO IT AND DISCLOSE THE EXISTENCE AND NATURE OF ANY INVESTIGATION, SITE VISITS AND EXPERT OPINIONS, AND WE'VE BEEN DOING THAT.
WHEN YOU GO BY THE PROPERTY, EVEN IF YOU DON'T TALK TO THE OWNER, IT'S NICE.
SO I JUST WANT TO SAY THIS AND I HOPE YOU WON'T SHOOT ME.
I WAS VERY DISAPPOINTED IN THE AMOUNT OF DISCUSSION THAT WHEN I LOOKED AT IT, I SAID, IF THIS APPLICANT DOES NOT OR THIS APPLICANT THAT'S BEEN DENIED, THE VARIANCE DOES NOT SUE, I DON'T KNOW WHO WOULD, AND THE REASON WHY IS BECAUSE IT WAS GOING COMPLETELY OFF THE RAILS INTO YOUR DISCUSSION HAS TO BE RELEVANT TO AND NOT JUST LIKE THINKING INTO THE FUTURE OR THINKING ABOUT WHO YOUR APPLICANT IS OR WHAT THEY MIGHT THEIR MOTIVATIONS MIGHT BE.
THAT HAS NOTHING TO DO WITH YOUR VARIANCE CRITERIA.
[00:35:03]
GROCERY STORE OR.LIKE THERE WAS SO MUCH CONVERSATION ABOUT ALL OF THIS.
WHAT IF, AND WHAT WE NEED HERE AND WHAT WE NEED THERE? AND I WILL TELL YOU THAT PERSON IS NOT GOING TO SUE BECAUSE THE 30 DAYS HAS PASSED, BUT THEY COULD AND THEY WOULD HAVE WON, AND SO GOING AND YOU KNOW WHAT? WE THE CITY HAS WE'RE FULLY INSURED FOR THOSE TYPES OF THINGS.
SO WE'RE NOT GOING TO BE DIGGING INTO TAXPAYER MONEY TO PAY SPECIFIC CLAIMS LIKE THAT.
SO DON'T BE NERVOUS BY ANY MEANS ABOUT DOING YOUR JOB, BUT YOU JUST HAVE TO KEEP CONTROL BECAUSE EVEN IN CASES WE'VE SEEN IT ON TV, I WATCH COURT TV ALL THE TIME BECAUSE I DON'T HAVE CABLE.
SO THAT'S LIKE ONE OF MY ONLY FREE CHANNELS.
SO I HEAR JUDGES TALK ABOUT LIKE, WHAT A MONSTER THE DEFENDANT IS.
WE DON'T SEE LATER THAT THEIR DEATH PENALTY WAS COMMUTED TO A LIFE SENTENCE OR WHAT, BECAUSE OF THE JUDGES THAT SAY THOSE THINGS, THEY GET THEIR DECISIONS OVERTURNED OR THERE'RE PORTIONS OF THE RULINGS THAT ARE APPEALED AND OVERTURNED BECAUSE THEY SHOULDN'T BE SAYING THAT, EVEN THOUGH WE ALL WANT THEM TO, BECAUSE WE THINK THE PERSON IS A MONSTER, BUT IT'S KIND OF THE SAME IDEA HERE.
PLEASE, PLEASE, PLEASE STICK TO THE CRITERIA, STICK TO THE EVIDENCE, AND DON'T--BECAUSE IF YOUR BIAS COMES IN AND THAT'S WHY I WANTED TO, MRS. MANN, SAY, AND TO THE WHOLE BOARD, IF YOU FEEL LIKE SO STRONGLY ABOUT AN APPLICATION COMING IN, THEN OUR CODE OF ORDINANCES, CHAPTER TWO HAS A CODE OF CONDUCT FOR BOARD MEMBERS, AND IF YOU CANNOT BE IMPARTIAL, WE'RE HUMAN BEINGS.
WE MAY NOT BE ABLE TO BE IMPARTIAL.
IF YOU CAN'T DO IT, THEN YOU SHOULD NOT BE HEARING THAT CASE AND ALL YOU HAVE TO DO IS ABSTAIN FROM VOTING, AND YOU STAY UP HERE AND YOU DON'T VOTE, BUT DON'T VOTE ON A CASE.
THERE'S GOING TO BE THINGS--IF YOU DID HAVE A NEIGHBOR WHO'S GOING TO BLOCK YOUR VIEW.
DON'T DO THAT, PLEASE, BECAUSE SOMEHOW, SOMEWHERE YOU WILL HAVE HAD COFFEE WITH SOMEBODY AND TOLD THEM, YOU KNOW, THAT YOU DON'T THINK X SHOULD HAPPEN IN THE CITY AND YOU GET THE VARIANCE APPLICATION FOR X AND THAT PERSON WILL GET DUG UP SOMEHOW, SOMEWHERE, AND IT'LL BE YOUR FAULT THAT THE COURT RULED IN THE APPLICANT'S FAVOR.
SO AM I BEING TOO HARSH? I'M JUST TELLING YOU, LIKE, THIS IS HOW IT WORKS AND WE JUST HAVE TO BE CAREFUL, AND THEN IF OVERALL, YOU FEEL LIKE YOU'RE HEARING THESE CASES AND YOU'VE SERVED ON THE BOARD FOR I DON'T CARE IF IT'S 20 YEARS, NOT YOU, YOU WERE NOT 20, ARE YOU BARRY? NOT QUITE. OKAY, OR SIX MONTHS OR WHATEVER, AND YOU'RE LIKE, I JUST CAN'T DO THIS.
THEN BY ALL MEANS RESIGN FROM THE BOARD AND NOBODY'S GOING TO ASK A QUESTION AT ALL.
SO BECAUSE WE NEED THESE DECISIONS TO BE IMPARTIAL, BECAUSE I REALLY SEE THAT WE ARE SEEING FAR FEW VARIANCE REQUESTS THAN WE USED TO SEE, AND THE LAST COUPLE OF YEARS, THAT'S JUST WHAT'S HAPPENING IN THE ECONOMY, BUT JUST OVER MY TENURE HERE, I MEAN, WE USED TO HAVE 5 OR 6 VARIANCES ON EVERY SINGLE AGENDA AND MOST OF THEM WERE APPROVED YAY FOR THE APPLICANTS, BUT THAT'S NOT HAPPENING ANYMORE.
NOT BECAUSE OF YOU GUYS, BUT BECAUSE OF HOW WE'VE TRAINED AND WE LEARNED ABOUT THE CRITERIA, AND WE'RE HAVING TO ARTICULATE THE REASONS WHY WE DON'T AGREE WITH STAFF IF THEY RECOMMEND DENIAL, THOSE TYPES OF THINGS.
I WILL RESEND THIS OUT BECAUSE THAT JUST LOOKS ODD.
DID I GO BACK UP? OKAY, LITIGATION.
THIS IS LITIGATION THAT'S BEEN SO LET'S SEE.
WE THINK THAT WAS A QUESTIONABLE DEPARTURE FROM FUNDAMENTAL FAIRNESS.
[00:40:01]
I'D SAY WE SHOULD PREVAIL WHEN ANY GOVERNING BODY CONSIDERS A CITIZEN'S REQUEST.IT WAS A DENIAL OF A REZONING.
IN THE EDELSTEIN CASE VERSUS CITY OF MIAMI BEACH, THERE WERE CAMPAIGN PROMISES TO SUPPORT A DOWN ZONING IN ADVANCE OF THE HEARING, JUST LIKE IN GENERAL SAYING I WILL NEVER REZONE A PROPERTY FROM THIS TO THIS.
THAT'S DIFFICULT TO THEN SIT THROUGH A REZONING FROM THIS TO THIS.
THE SAME SITUATION BECAUSE YOU'VE ALREADY SHOWN YOUR BIAS.
SO WHEN YOU SAY TELEGRAPHED, DOES THAT INCLUDE MAKING YOUR KIND OF YOUR COMING COMING IN FEELINGS APPARENT? BECAUSE I'VE SEEN IT KIND OF HAPPEN HERE LIKE PEOPLE WILL KIND OF IT'LL BE CLEAR THAT SOMEBODY'S NOT THAT COOL ON THE THING LIKE RIGHT FROM THE START--THAT IS EXACTLY IT.
OTHER THAN THE BRETT'S APPEAL KNOW, WE'VE STAYED OUT OF COURT.
WE HAD ONE OTHER ON THE LITTLE GARAGE ENCROACHMENT.
WHO'S SITTING IN THE AUDIENCE.
PROCEDURAL. THAT WAS A PROCEDURAL ISSUE.
THIS IS ANOTHER REASON TO ABSTAIN.
I'LL JUST MAKE IT REALLY SIMPLE.
IF YOU HAVE A FINANCIAL INTEREST, YOU KNOW, UP OR DOWN, POSITIVE OR NEGATIVE FINANCIAL INFLUENCE, YOU WOULD ABSTAIN FROM VOTING.
THAT'S UNDER STATE LAW AND CERTAINLY IF IT'S A RELATIVE OF YOURS, SOMEBODY THAT YOU OWN PROPERTY WITH IS APPLYING FOR, EVEN IF YOU OWN LOTS OF PROPERTIES WITH THEM, YOU HAVE TO ABSTAIN FROM VOTING.
OKAY, AND YOU CAN ALWAYS AND I GET THIS ALL THE TIME, YOU CAN CALL ME, YOU CAN EMAIL ME.
MOST PEOPLE CALL BECAUSE A LOT OF TIMES IT'S PERSONAL TO THEM AND SAY, DO I HAVE A VOTING CONFLICT IF SUCH AND SUCH? AND I WILL TELL YOU, AND THEN YOU CAN DEPEND ON MY OPINION BECAUSE YEAH, AND I'M REALLY CONSERVATIVE WITH THOSE.
OKAY, JUST BACK UP BIAS REAL QUICK.
WE GET THE PACKAGE AND WHERE THE STAFF HAS LAID OUT THEIR RATIONALE AND ALL THEIR REASONS, YES OR NO ON THE CRITERIA, WE HAVE THE APPLICANT'S APPLICATION, WHICH GIVES THEIR ANSWERS AND THEIR BASIS.
SO WE HAVE A SUBSTANTIAL AMOUNT, NOT ALL OF IT, BECAUSE THE HEARING IS THE OPPORTUNITY TO ADD TO THAT RECORD OR CHANGE IT OR EXPAND ON IT, I GUESS.
SO I MEAN, IF YOU'RE LOOKING AT IT AND MAYBE THIS IS YOUR QUESTION, CHUCK, YOU'RE LOOKING AT THAT AND YOU DO FORM SOME IDEA OF WHICH ONE IS A BETTER, YOU KNOW, WHO'S MAKING A BETTER CASE HERE, AND IT DOES GET INTO HOW WE MAYBE FRAME OUR QUESTIONS TO BOTH PARTIES.
I DON'T KNOW THAT I THINK OF THAT AS BIAS.
IF YOU'RE COMING IN THINKING, SAY, WELL, YOU KNOW, THE STAFF DID A GREAT JOB IN EXPLAINING THAT.
I THINK IT'S PROBABLY MORE ABOUT WHAT YOUR BELIEF, YOUR BELIEFS ARE BEFOREHAND.
IT'S INTENDED FOR YOU TO GET THE STAFF REPORT AND YOU KNOW, THE APPLICANT'S APPLICATION AND THEIR ARGUMENTS, AND IF YOU READ THEM BEFORE THE MEETING, YOU'RE OBVIOUSLY GOING TO HAVE SOME IDEA OF WHICH ONE YOU THINK IS BETTER, BUT THEN YOU HAVE TO THINK BACK.
IS THAT BASED ON MY OWN, YOU KNOW, BELIEF SYSTEM OR IS IT JUST BASED ON WHAT I'M SEEING? THAT'S WHAT YOU HAVE TO ASK.
OKAY, THANKS. OKAY, SO FOR CONFLICT OF INTEREST, VOTING CONFLICT WHERE YOU HAVE SOMETHING THAT WILL EITHER BE FINANCIALLY BENEFICIAL OR DETRIMENTAL, IF YOU FEEL LIKE YOU HAVE THAT, YOU CAN ASK ME.
I'LL CONFIRM FOR YOU WHETHER I THINK IT IS.
YOU HAVE TO DISCLOSE THAT BEFORE THE VOTE IS TAKEN, AND THEN THE OTHER THING IS THAT THE DISCUSSION YOU'RE NOT SUPPOSED TO BE AS AN APPOINTED MEMBER OF THE BOARD PARTICIPATING IN THE DISCUSSION OF THAT MATTER AND TRYING TO INFLUENCE THE OTHER MEMBERS.
SO AND I'LL SEND THAT STATUTE TO YOU TOO.
[00:45:03]
THIS 286.012 SAYS YOU HAVE TO VOTE AND IT'S 1123143 IS THE VOTING CONFLICT THAT'S THE ETHICS CODE FOR PUBLIC OFFICERS AND EMPLOYEES.ANY QUESTIONS ABOUT VOTING CONFLICTS? OKAY, ALL RIGHT, BEST PRACTICES.
AS I SAID, BE AN OBJECTIVE DECISION MAKER, DO NOT PREJUDGE THE CASE.
FOLLOW YOUR COMPREHENSIVE PLAN, YOUR CODES, AND BASE YOUR DECISION ON INFORMATION THAT'S AVAILABLE TO YOU AT THE MEETING, INCLUDING THE STAFF REPORT SITE VISIT, WHICH OBVIOUSLY HAPPENS BEFORE THE MEETING.
SO YOU JUST FOCUS ON THAT, AND FOR THE CHAIR, ANYBODY WHO'S CHAIR, BECAUSE MR. GRANT IS NOT GOING TO BE CHAIR FOREVER, SOMEBODY ELSE'S GOT A CHANCE.
IS THAT WHEN THOSE CONVERSATIONS START GOING OFF THE RAIL AMONG BOARD MEMBERS, MEANING WE'RE GETTING INTO OPINIONS AND, YOU KNOW, I DON'T KNOW EXPERIENCES FROM 30 YEARS AGO, NOBODY CARES.
THAT'S NOT PART OF THE QUASI-JUDICIAL PROCEDURES AND PART OF THE EVIDENCE THAT YOU NEED TO HAVE.
IT JUST MAKES THE RECORD THIS BIG INSTEAD OF THIS BIG, AND WE NEED TO KEEP IT AS LEAN AS WE CAN.
SO I'M ALWAYS PROUD OF YOU, BUT YEAH, THE LAST MEETING I WAS LIKE, WE JUST CAN'T HAVE THESE CONVERSATIONS, PLEASE . I DIDN'T DO AS GOOD A JOB AS I WOULD LIKE.
I MEAN, AND SO AND WE APPRECIATE HIM, BUT YEAH, KEEP THE CONVERSATIONS AT A MINIMUM, AND IF YOU'RE THE CHAIR AND A BOARD MEMBER IS TALKING AGAIN WE'RE HUMAN BEINGS. SOME PEOPLE TALK MORE THAN OTHER PEOPLE TALK, AND YOU CAN JUST SAY, YOU KNOW, WE GET YOUR POINT.
DO YOU HAVE ANYTHING NEW TO ADD? I KNOW THAT YOU'LL HAVE A DIPLOMATIC WAY TO SAY IT AND WHOEVER'S CHAIR WILL, AND THEN IT'S THE SAME THING WITH REGARD TO PEOPLE TESTIFYING, PARTICULARLY RESIDENTS AND AFFECTED PARTIES, IF THEY'RE NOT HERE WITH EXPERTS AND ALL OF THAT STUFF, LISTEN TO WHAT THEY HAVE TO SAY.
GENERALLY, IT'S PRETTY SHORT, BUT IF IT'S GOING ON AND ON AND ON, YOU NEED TO BRING THEM BACK TO WHAT'S RELEVANT TO THE CRITERIA AND THE PROJECT THAT YOU'RE DEALING WITH.
OKAY, TEN MINUTES FOR QUESTIONS.
MAKE SOUND DECISIONS AND DEFENSIBLE MOTIONS.
WHAT DO I MEAN BY DEFENSIBLE MOTIONS? DEFENSIBLE MOTIONS ARE WHAT WE'VE LEARNED TO DO HERE THAT WE DON'T LIKE TO DO, AND THAT IS TO ARTICULATE IF THERE ARE CRITERIA YOU CAN RELY ON THE STAFF REPORT, BECAUSE THAT'S PRETTY MUCH ALREADY ARTICULATED, AND THEN IF THE APPLICANT ALSO FILLS OUT THAT PART OF THE APPLICATION, WELL, AND YOU SEE GOOD ARGUMENTS THERE, YOU CAN MAKE ARGUMENTS RIGHT FROM THERE.
OR IF YOU DON'T, THEN YOU HAVE TO, FOR EXAMPLE, LITERAL INTERPRETATION.
THE LITERAL INTERPRETATION CREATES A HARDSHIP FOR THE APPLICANT.
THE APPLICANT SAYS, YES, IT DOES.
SO WHAT DO YOU DO IF THE APPLICANT JUST SAYS YES OR NO AND GIVES A SHORT ANSWER AND THE STAFF USUALLY GIVES A PRETTY IN-DEPTH ANSWER IS YOU KIND OF SHOULD STUDY THAT, AND YOU'RE DOING IT AT THE HEARING.
I MEAN, THERE'S NOTHING THAT SAYS--NOT THAT WE WANT TO BE HERE TILL 9:00--BUT THERE'S NOTHING THAT SAYS WE HAVE TO GO HOME AT SEVEN, AND SO YOU SHOULD BE STUDYING SOME OF THOSE, YOU KNOW, WHILE YOU'RE HERE AND TRYING TO COME UP WITH AFTER YOU'VE HEARD THE EVIDENCE, HOW THE MOTION WILL BE, BUT YOU NEED TO ARTICULATE WHY ALL THE CRITERIA WERE MET. ANY THAT STAFF SAYS WEREN'T MET OR ANY THAT THE APPLICANT LEFT BLANK OR DIDN'T FILL OUT THAT PART.
THEN YOU NEED TO GO AHEAD AND TRY TO OTHERWISE, AND I WILL SAY THIS IF THE APPLICANT DOESN'T FILL OUT THAT PART, THEN WE NEED TO START LOOKING FOR IN THESE HEARINGS, I THINK THE VERBAL TESTIMONY SAYING WHY THOSE CRITERIA WERE MET AND IF THEY DIDN'T PROVIDE IT, THEY DIDN'T MEET THEIR BURDEN OF PROOF. YEAH, BUT WHEN AN APPLICANT OR AN APPLICANT'S REPRESENTATIVE COMES RIGHT OUT, AS THEY SOMETIMES HAVE AND SAYS, YOU KNOW, YEAH, THAT CRITERIA WASN'T MET, I HAVE NOTHING TO SAY--THEN THEY DIDN'T MEET THEIR BURDEN OF PROOF.
YEAH BUT CAN'T YOU, IF YOU CAN SEE HOW THAT HOW THAT CRITERIA MIGHT HAVE BEEN MET BETTER THAN THE APPLICANT? I THINK THAT'S FAIR. DOES THAT DISQUALIFY ME?
[00:50:02]
NO, WE'RE LOCAL GOVERNMENT.IT'S A COMMUNITY. WE'RE TRYING TO DO THE RIGHT THING.
RIGHT. SO I THINK IT'S FINE TO HELP THEM.
YOU COULD POINT OUT THE FACT THAT THEY--I THINK IT WOULD BE HELPFUL TO A JUDGE SHOULD IT EVER BE APPEALED THAT YOU SAY, LOOK, YOU SAID IT LITERAL INTERPRETATION.
YOU COULD NEVER MEET THAT CRITERIA, BUT I THINK YOU CAN.
THAT'S A FINE CONVERSATION TO HAVE AND STAFF'S NOT GOING TO THROW DARTS AT YOU OR ANYTHING.
THAT WAS A GOOD QUESTION. ANY OTHER QUESTIONS? YEAH, LET'S SAY YOU HAVE AN EX-PARTE DISCUSSION WITH AN OWNER AND HE BUILT A POOL THAT'S LIKE THREE INCHES INTO THE VARIANCE, AND HE SAYS TO YOU, WELL, THE INSPECTOR FOR THE CITY CAME OUT AND LOOKED AT IT AND SAID THAT WAS ALL RIGHT NOT TO WORRY ABOUT IT, BUT YOU COME IN HERE, AND WHEN YOU DISCLOSE THAT, YOU SEE EVERYTHING THAT THEY SAID AND DOES THAT HAVE ANY BEARING ON THE CASE? NO, IT'S NOT EVIDENCE.
IT'S GOT TO BE PRESENTED HERE.
OKAY, I GUESS IF THE CITY INSPECTOR APPEARED BEFORE THE BOARD THEY COULD BACK THAT UP.
GOODNESS, I WAS JUST THINKING OF--SORRY.
NO. OKAY, SO I MIGHT THINK OF IT.
MAKE SOUND DECISIONS AND DEFENSIBLE MOTION.
ASK THE APPLICANT IF HE OR SHE AGREES.
IF NOT, WHY NOT? VERIFY, UNDERSTANDING AND ASSUMPTIONS BEFORE VOTING.
IN OTHER WORDS, ESPECIALLY WHEN APPLICANTS ARE NOT REPRESENTED BY THEIR ARCHITECTS, THEIR ATTORNEYS, OR SOME EXPERT, A LOT OF TIMES THEY HAVE NO IDEA WHAT'S GOING ON, AND I MEAN, THEY'RE ALL EXPERTS IN HERE.
EVEN [INAUDIBLE] PROBABLY CAN BE CONSIDERED AN EXPERT OF SORTS.
SO YOU CAN HELP THEM TO MAKE THEIR CASE IF YOU THINK THAT CRITERIA IS MET.
MEANING YOU CAN SAY ASK THEM QUESTIONS AND THEIR ANSWERS TO THE QUESTIONS BECOME EVIDENCE.
RESTATE AND DISCUSS THE CRITERIA TO SUPPORT THE MOTION.
IT'S JUST IMPORTANT, I THINK, THAT WHEN WE GET LAY APPLICANTS, LET'S SAY LAY PEOPLE, NOT EXPERTS THAT ARE HERE BY THEMSELVES AND SAY, I JUST DON'T KNOW WHAT TO DO BECAUSE THE CONTRACTOR PUT THE POOL TOO CLOSE TO THE FENCE, AND, YOU KNOW, THAT'S ONE OF THOSE THINGS WHERE WE SHOULD BE AS HELPFUL AS WE CAN.
FOLLOW COMPETENT, SUBSTANTIAL EVIDENCE.
IT DOESN'T MATTER HOW MANY PEOPLE ARE HERE.
IF WE HAVE PEOPLE HERE AND WE HAVE TO MAINTAIN DECORUM, ANYBODY WHO'S SITTING IN MR. GRANT'S SEAT THERE AS CHAIR AND WHAT I HAVE RECOMMENDED TO MAYOR THE CURRENT MAYOR PRIOR MAYORS IS WE AS STAFF WILL SEE THERE, AN UPRISING, SO TO SPEAK, AND ASK POLICE OFFICERS TO BE HERE IF WE THINK IT'S GOING TO BE A FULL CROWD, AND I AM NEVER IN FAVOR OF UNLESS SOMEBODY GETS VIOLENT IN THE POLICE OFFICER DRAGGING SOMEBODY OUT OF THE CHAMBERS BECAUSE THEY WOULDN'T STOP SPEAKING OR THAT'S A TERRIBLE IDEA, FIRST AMENDMENT PROBLEM.
SO WHAT I RECOMMEND IS THAT THE CHAIR JUST RECESSES THE MEETING, ALLOW THE CROWD TO CALM DOWN AND EXPLAIN THAT WE'RE NOT GOING TO CONVENE AND CONDUCT BUSINESS AGAIN UNTIL YOU CAN BEHAVE, AND THAT'S REALLY IMPORTANT.
REPEAT THE GIFT WRAP MOTION PROVIDED BY STAFF IF YOU AGREE.
[CHUCKLING] WE DO THAT ALL THE TIME.
THAT CAME FROM THE LAST JURISDICTION I SERVED.
THAT'S WHAT WE DID, AND I THOUGHT IT WAS BRILLIANT.
IT WAS VERY HELPFUL FOR YOU CAN MAKE ANY MOTION THAT YOU THINK FITS.
DOESN'T HAVE TO BE THAT, BUT THAT GIVES YOU A GUIDE.
MOTION DIFFERENT THAN STAFF RECOMMENDED MOTIONS.
WELL, WE PROVIDE BOTH THE APPROVALS AND THE DENIALS.
QUESTIONS? THE GIFT WRAP. SO LIKE TONIGHT WE HAVE A HEARING ABOUT A CASE THAT THE CITY HAS AGREED THE VARIANCE SHOULD BE GRANTED.
[00:55:06]
SO CAN WE SAY WE AGREE I'D LIKE TO MAKE A MOTION TO APPROVE IT.I AGREE, AND WHAT THE STAFF HAS SAID AND JUST HAVE A VOTE? I MEAN, YOU DON'T HAVE TO GO THROUGH--NOPE.
CERTAINLY THEY'VE DONE ALL THE WORK.
IN SOME CASES, THE APPLICANT--LOOK CLOSELY AT THOSE APPLICATIONS--SOME OF THESE APPLICANTS DO A GREAT JOB AND THEY GO INTO DIFFERENT THINGS THAN STAFF HAS, AND I'VE SEEN THAT TOO. SO DON'T FORGET TO LOOK AT THE APPLICATIONS AND THAT'S WHY THEY'RE PROVIDED TO YOU BEFOREHAND.
SO YOU CAN AT LEAST GET SOME OF THAT READING DONE ANYWAY.
ANY OTHER QUESTIONS? OKAY. TAMMI, THANK YOU SO MUCH.
YOU'RE WELCOME. WE REALLY APPRECIATE IT.
I'LL BE BACK FOR YOUR NEXT MEETING.
I'LL CLOSE THE WORKSHOP, THEN.
WE HAVE A COUPLE OF
* This transcript was compiled from uncorrected Closed Captioning.