Item A1
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
TIME CERTAIN: 8:30 AM
Meeting Date:
August 20, 2003
Division:
County Attorney
AGENDA ITEM WORDING:
Attorney-client closed session with the County Commissioners, County Administrator Jim
Roberts, County Attorney Richard Collins, Assistant County Attorney Bob Shillinger, and a
certified court reporter.
The purpose of this meeting is to discuss the Hinote Construction v. Monroe County
litigation.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
STAFF RECOMMENDAnONS:
Conduct private meeting with counsel as provided under F.S. Sec. 286.011(8).
CONTRACT I AGREEMENT CHANGES
N/A
TOTAL COST:
COST TO COUNTY:
BUDGETED: Yes 0 No 0
SOURCE OF FUNDS
APPROVED BY:
County Attorney _ OMB/Purchasing 0 Risk Management 0
DIVISION DIRECTOR APPROVAL:~~h~;~- ~
~RD C~NS '
DOCUMENTAnON: Included 0 To Follow 0 Not Required 0
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AGENDA ITEM #
Office of the County Attorney
PO Box 1026
Key West, FL 33041-1026
305/292-3470 - Phone
305/292-3516 - Fax
BOARD OF COUNTY COMMISSIONERS
MAYOR Murray E. Nelson, District 5
Mayor Pro Tem, David P. Rice, District 4
Dixie M. Spehar, District 1
George Neugent, District 2
Charles 'Sonny" McCoy, District 3
O!!~T,Y ~o~~~E
(305) 294-4641
MEMORANDUM
TO: Danny Kolhage
Clerk of the Court
FROM: Robert B, Shillinger, Jr. (Y
Assistant County Attorney
DATE: October 19, 2004
SUBJECT: Hinote Construction, Inc, v. Monroe County
Attached please find a transcript from the executive session of the
BOCC which was held on August 20, 2003. That session was held to
discuss a settlement proposal in the above-referenced litigation.
Under the Government in the Sunshine Act, transcripts of an executive
session are to be sealed by the Clerk until such time as the litigation
has concluded. On October 12, 2004, the plaintiffs filed a notice of
voluntary dismissal of its case, Accordingly, the transcript can be
unsealed and placed in the public records for the meeting held on
August 20, 2003.
Please contact me . should you have any questions regarding this
matter.
BOARD OF COUNTY COMMISSIONERS
EXECUTIVE SESSION
HINOTE CONSTRUCTION
COMMISSION:
Mayor Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner David Rice
Commissioner Charles "Sonny" McCoy
James Roberts, County Administrator
John R. Collins, Esq., County Attorney
Robert B. Shillinger, Jr., Assistant
County Attorney
Key Largo Library
101485 Overseas Highway
Key Largo, FL
Wednesday, August 20, 2003
8:30 a.m. - 8:54 a.m.
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(The following occurred in closed session:)
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MAYOR SPEHAR: Ready to begin? Do you want to
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do the beginning of what is legal, what we must say to
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start the closed session?
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MR. SHILLINGER: Yes, your honor. We're here
6
in the closed session of the Board of County
7
Commissioners of Monroe County. We have noticed this
8
at a prior public meeting to consider litigation
9
settlement offers and/or settlement discussions and
strategy involving litigation expenditures in the case
of Hinote Construction, H-i-n-o-t-e, Construction
12
Company versus Monroe County.
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It's the morning of August 20th, 2003. It's
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8:30 in the morning. Present are the five county
15
commissioners, the county attorney, assistant county
16
attorney, Bob Shillinger, and county administrator,
17
Jim Roberts, and the court reporter.
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Pursuant to the Florida Statute, the only
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things that we can talk about under 286 are litigation
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settlement proposals and strategy in terms of
21
expenditures. We cannot take any votes in the closed
22
session.
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MAYOR SPEHAR: Thank you. Who will be here to
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speak on this? What do
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MR. SHILLINGER: I'm the one that asked for the
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session, Bob Shillinger, on behalf of the county
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attorney's office, your honor. We had been served
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with a civil rights complaint by Hinote Construction.
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This deals with the Key Largo Walgreens project is how
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it's most commonly referred to.
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A little bit of history: They've gone to the
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Planning Commission, gotten their conditional use
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approval. They've gotten several steps of approval
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along the way in terms of approvals to purchase
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additional properties so they can transfer the
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commercial square footage. The last step in the
12
process was approval of recipient receipt
the
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receiving end of that commercial square footage was
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denied by the Planning Commission.
15
The Planning Commission actually hasn't issued
16
their final written order yet, so we're a little ahead
17
of the game. Nevertheless, Hinote went out, they
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filed a 1983 action under the Civil Rights Act and
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they're seeking damages.
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Immediately upon filing suit, they also
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tendered us an offer. So before we went down a long
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road of litigation, we decided, let's see what there
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is out there to see if this is something that can be
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resolved.
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In the past in the county attorney's office, we
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had made a decision on whether to farm a case out or
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keep it in-house. One of the things was whether --
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one of the factors to consider was whether the case
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was going to be quickly resolved or not. This had the
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potential of doing that, but we're not sure whether it
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actually will be or not.
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So we elected to at least attempt to handle the
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initial stages in-house. We haven't sought outside
9
counsel on this. If it does go beyond -- much beyond
10
the initial stages, we believe it will probably have
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to involve outside counsel, which could either be
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Morgan & Hendrick as our land use counsel, or Johnson,
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Anselmo, who does most of our civil rights work.
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Since it's a civil -- it's kind of a mixed bag. We
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may have to draw both of them or just decide to go in
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one direction or the other.
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What they've offered us -- what Hinote has
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offered us -- Nick Mulick is their attorney -- has
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extended an offer, the terms of which are as follows:
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Within 30 days of the settlement agreement, the county
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was going -- should release and issue proof of
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building permits for construction of the Walgreens
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Pharmacy authorized as by the Planning Commission in
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prior resolution and approve their minor conditional
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use development application.
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There was -- upon expiration of the appeal
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period for the building permits, if no appeal is filed
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or if an appeal is filed, a successful defense by
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Hinote Construction, his client, of the appeal, the
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client would execute and file dismissal of the suit
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with prejudice.
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This has been complicated in recent days by an
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effort by the Smart Growth Coalition to intervene on
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behalf of -- in this lawsuit, they want to intervene
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on the side of the county. They actually asked
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whether I would consent to their intervention, and at
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that point, I had not had an opportunity to consult
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with the five of you in the collective manner as my
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client, so I could not consent to that and I expressed
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that.
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That hearing on their motion to intervene will
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be held Tuesday, the day after Labor Day, which I
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believe is September 2nd. So there's a little bit of
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background here.
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Again, the Planning Commission has not signed
21
off on their final order yet. I guess, in theory,
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they could come back and there could be a motion for
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reconsideration. There still could be some language
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changes in the order, so we're kind of at an early
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stage, but we wanted to get to you as soon as we could
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just to see if this is something we want to -- how far
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down the road we want to go.
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MAYOR SPEHAR: Thank you. Is there anyone else
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that is going to speak? Mr. Collins?
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MR. COLLINS: No, ma'am.
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MAYOR SPEHAR: Commissioners, what is your
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feeling? Do you -- what do you want to do or do you
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have recommendation?
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COMMISSIONER NELSON: I have a question because
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I've been following this case very closely, and I know
11
the Smart Growth Coalition has concerns about this,
12
but it seemed to me that if Smart Growth was doing
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what we wanted to do under NROGO, is to have infill
14
and infill area for redevelopment, and this particular
15
case meets all that criteria.
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And, also, I've asked several of the planning
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commissioners what was the basis of denial of that
18
permit, and I have yet to have one substantial reason.
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So if the county actually has denied a permit to a
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person who has a legitimate right to build that
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particular building on that particular property, then
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could you explain to me what basis the county is going
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to defend this under or how will we approach that if,
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in fact, we decided to not issue the permit?
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MR. SHILLINGER: The first basis to defense of
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this lawsuit is it's premature. The Planning
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Commission hasn't acted finally, but beyond that, yes,
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we would have a difficult position in defending this
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suit. This is an action where the Planning Commission
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acted against advice of its own counsel and against
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the recommendations of staff. So we would be in a
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difficult position arguing against this lawsuit.
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COMMISSIONER NELSON: Does staff have a
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recommendation?
MR. SHILLINGER: Staff's recommendation was to
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go ahead and issue the permit, settle the lawsuit in
12
terms of growth management staff. Are you asking
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legal staff's recommendation?
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COMMISSIONER NELSON: Yes.
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MR. COLLINS: We actually can't take a position
16
to bring to you. We have to get direction from you
17
according to the statute, and I think, Commissioner,
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you have touched on the key part of this lawsuit, is,
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is it defensible? And from the little information we
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have, and Bob's reviewed the tapes from the meeting,
21
waiting to see the final order, if they don't meet
22
certain criteria in establishing the facts upon which
23
they made their decision, it's almost ipso facto a
24
loss for us.
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And what we're seeking from you is some
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direction then as things proceed, that we can bring
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you back a settlement agreement generally within the
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terms of what has been offered to us, and we would try
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and do it at such a point that the attorney's fees on
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their side doesn't build up as a potential claim
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against us.
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MAYOR SPEHAR: Mr. Neugent.
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COMMISSIONER NEUGENT: Bob, it seems I've got
9
very little -- almost no information other than the
10
Planning Commission rejected, for some reason, this
11
request for a permit, and out of respect for the
12
Planning Commission, we've got some pretty smart folks
13
on there, even though we do have two lawyers.
14
I mean, there are two lawyers on there, One of
15
them supported and one of them voted against it, but
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Miss Putney and others I have a great deal of respect
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for, and I would like to -- would it be appropriate
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for us to hear from one of the commissioners to
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explain why they voted the way they did?
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I don't know. All I know is they voted to deny
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the permit, but they based it upon, I would hope, some
22
sound reasoning. It was a three/two vote, but I would
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like to ask that one of the planning commissioners
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come and make presentations to the County Commission,
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who voted in the affirmative or in the majority, to
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explain why they took this position and then, based
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upon that, I think that we can make a much more
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informed decision as a commission on what we're going
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to do.
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MAYOR SPEHAR: Bob, could you give us -- I'm
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sure that you have a synopsis of why they voted the
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way they did. Can you give us a short --
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MR. SHILLINGER: Actually, I don't have that
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synopsis. From my -- what I've been able to delve
into so far is, there were some concerns about growth,
but the record really isn't clear to support their --
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the way they voted, and we are at an early stage in
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the process.
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So, you know, perhaps that suggestion is of
15
merit and certainly, to answer the question that was
16
posed, yes, it's possible. Obviously couldn't be done
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In a closed session. It would have to be done in an
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open session.
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I would also remind you that you're looking --
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you'll be hearing from, you know, one person's report
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as opposed to the
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MAYOR SPEHAR: The entire --
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MR. SHILLINGER: -- the entire panel or at
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least the majority of the panel.
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MAYOR SPEHAR: I would have a problem listening
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to just one's opinion.
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COMMISSIONER NEUGENT: They have to give you
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substantiation of why --
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MR. SHILLINGER: And they're still working on
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their order.
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COMMISSIONER NEUGENT: Right. That's all I'm
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asking for. We don't have to, you know -- but can we
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determine based upon just interpreting that being the
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reason that they voted in opposition or in denial?
MR. COLLINS: That commission will speak to us
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officially through its final order that it enters, and
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according to the statutes and the case law, they have
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to list specifically the facts and reasoning upon
14
which they based their decision.
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After that order is rendered, then any of the
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commissioners who basically voted in the affirmative
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can explain his or her position as to that order, but
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cannot speak for the commissioners as to their
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position because the order is the speaking element.
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I mean, the only reason we're here today --
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well, not the only reason -- but the maJor reason
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we're here today is, we are ethically bound to bring
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you settlement offers, and I believe Nick knows that
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he filed this case prematurely, knows that he made a
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settlement offer to move us down the road fairly quick
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and all we're looking for is some direction that we
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continue to dance with him toward the settlement
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agreement, and as we get more information, we will
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feed it to you through the public record route, and it
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may be that we'll come back here again in a month or
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two with a more positive position based on the
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Planning Commission.
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MAYOR SPEHAR: Mr. Nelson.
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COMMISSIONER NELSON: Yes, Mayor.
If, in fact,
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we decided today to rule in favor of issuing a permit,
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then that basically goes back to the planning
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commissioners for final approval or for them to review
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it again?
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MR. COLLINS: Technically not, and we can't get
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the direction from you in this session to go ahead and
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settle it -- settle the case. We can get an
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indication from you of where you want us to go. We
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would then have to enter into a written agreement with
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this company and then bring it back to you for
20
approval as an agenda item.
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COMMISSIONER NELSON: Mayor, this case has been
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going on, on and on and on and on, on technicalities
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and based on staff's recommendation at the Planning
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Commission and the legal representation at that
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staff -- at that Planning Commission, I would move
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that we issue this permit to this applicant. He
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suffered long enough.
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MAYOR SPEHAR: Wait, wait. I'm sorry. We
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cannot vote on this. It's my understanding we cannot
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do that. Just direction.
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MR. SHILLINGER: Just an indication.
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COMMISSIONER NELSON: You just want an
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indication.
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COMMISSIONER RICE: Could I ask a question of
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Mr. Collins? You indicated that we would be getting a
11
report from the Planning Board.
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MR. COLLINS: Their order.
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COMMISSIONER RICE: What is the timeframe on
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that?
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MR. COLLINS: I believe they're supposed to
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according to a brief conversation with John Wolfe, my
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impression is that they're supposed to be issuing that
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order at their next meeting.
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MAYOR SPEHAR: And that is?
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MR. COLLINS: That is being drafted now.
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MAYOR SPEHAR: And that meeting is?
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MR. COLLINS: September.
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MAYOR SPEHAR: 7th?
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MR. COLLINS: September. I think early
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September.
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MR. SHILLINGER: We1re not meeting in August.
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COMMISSIONER RICE: Will that order give us any
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insight into the reasoning behind their decision or
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will it simply be their decision?
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MR. COLLINS: It's supposed to have some
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findings of fact in there to support their conclusion
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to deny. And from what I gather from the tapes and
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everything, there are some of us who don't see what
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facts they're going to be able to put in there to
support that, but until they actually render their
order, we don't know.
MAYOR SPEHAR: When you say that you need
indication from the board, then it's just support of
14
you moving forward and we lean towards providing the
15
permit? Is--
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MR. COLLINS: To settle this within the general
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parameters of the offer.
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MAYOR SPEHAR: Commissioner McCoy.
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COMMISSIONER McCOY: I indicate that we go in
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that direction and proceed.
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COMMISSIONER NELSON: I concur.
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MAYOR SPEHAR: And do you agree?
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COMMISSIONER RICE: I, frankly, would prefer to
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see their report prior to doing that, but I certainly
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am inclined in that direction because all the
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information that I've heard here today and some
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comments previously support the fact that -- and my
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own research, I can't find a way to do what they did
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legally.
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MAYOR SPEHAR: Do I understand correctly that
6
this quasi judicial -- we cannot speak with our
7
appointed commissioners on the Planning Commission?
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MR. COLLINS: If it's going to affect the
9
decision on how you will ultimately vote on any
settlement agreement we bring you, you may have a
qausi judicial restraint on discussions on that.
MAYOR SPEHAR: I don't see how a discussion
13
would be anything other than helping us to formulate
14
an opinion, so in other words, forewarn
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MR. COLLINS: I wanted to phrase it so I
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didn't tell you no.
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MAYOR SPEHAR: Commissioners, don't speak to
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your appointees. Then is it then a unanimous feeling
19
from the board that we
our indication is to move
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forward with this?
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COMMISSIONER NEUGENT: I need some
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clarification on moving forward, I agree.
I don't
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think anybody wants to see us wind up on the short end
24
of a lawsuit, but, again, I would just like to make
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sure we're going to be communicated with as we go
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through this dance to -- and this is not a decision,
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We're just --
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MAYOR SPEHAR: No.
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MR. COLLINS: Absolutely. And if we do get to
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a tentative agreement with their attorney, they will
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be well aware upfront that this is something that
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we're bringing back to you and it's going to be your
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decision to make.
It's not something that we're
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carving out in stone for you.
MR. SHILLINGER: That would obviously be done
in open session.
COMMISSIONER RICE: Let me also say that prior
13
to making the final decision, I would really
14
appreciate being able to review their report,
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MR. SHILLINGER: Absolutely.
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MR. COLLINS: I anticipate collecting documents
17
from the staff's recommendation of the Planning
18
Commission and the Planning Commission's order on that
19
and distributing that to you so you can see some of
20
the factual background.
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COMMISSIONER RICE: Great.
22
MAYOR SPEHAR: All right then. Just to sum
23
this up, we're moving forward with it. It will be
24
brought back to us for our vote in public session.
25
You will provide information prior to enable us to
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make a decision.
MR. SHILLINGER: Yes.
MAYOR SPEHAR: Does that close this session?
MR. COLLINS: Yes, it does.
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MAYOR SPEHAR: Thank you very much.
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(At this time the closed session in the
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above-captioned matter was adjourned at 8:54 a.m.)
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CERTIFICATE
I, CHRISTINA DiSANTO, Registered Professional
Reporter, do hereby certify that I was authorized to and did
stenographically report the foregoing proceedings and that
the transcript is a true record.
Dated this 22nd day of August, 2003.
,1
~ f)ja~~
Christina DiSanto,/RPR
Court Reporter
.....,~....", CHRISTINA DI """'0
~1:;r. ~. """ I
~":' ':4 MY COMMISSION II DO 148240
~'" . ';c EXPIRES: September 8,2006
'~p.f.~ltS-., Bonded Thtu Notary Plblic Underwriters
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