HomeMy WebLinkAbout1977-22-11 Regular meeting RRNBN
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MINUTES
REGULAR MEETING
DANIA CITY COMMISSION
p NOVEMBER 22, 1977
Invocation by Richard Marant Assistant City Manager
Pledge of Allegiance
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Roll Call
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Present:
Mayor: John Bertino
Vice Mayor: James Adams
Commissioners: Jean Cook
Robert Donly
City Manager: John S. Lassiter, Sr.
ti City Attorney: Frank Adler
City Clerk: Wanda Mullikin
Police Chief: Rudy Rigo
Building Official: Paul Maxwell
Zoning Consultant: Luther Sparkman
Absent:
Commissioner: Howard Hirsch (out of town)
A motion was made by Commissioner Donly, seconded by Commissioner Cook
to grant Commissioner Hirsch an excused absence. The motion was carried
unanimously.
1. A motion was made by Commissioner Cook, seconded by Commissioner Adams
b approve the Minutes of the Workshop Meeting of November 7th and the
Regular Meeting of November 8, 1977. The motion was carried by all.
2. Commissioner Cook opened discussion on possible litigation with Norge
Realty by reading a letter that Miss Cook addressed to City Attorney
Adler requesting a formal opinion concerning generally costs and
chances of final judgment in favor of City in proposed litigation
being filed by Norge Realty Management of Florida, Inc.
Mr. Dixon Thomas representing Norge Realty Management of Florida, Inc. ,
read a letter that was sent to the City Commission and Administrators
stating the intention of Norge Realty to file suit in the Circuit Court,
Broward County, Florida, in an effort to reverse the action of the
City Commission. A petition of Certiorari will be filed, copy of letter
attached.
City Attorney Adler read a letter stating his legal opinion of questions
asked by Commissioner Cook concerning litigation of Norge Realty.
City Attorney Adler informed the Commissioners that in order to have
a motion reconsidered it must be made by the prevailing side who voted
against the approval of the motion. The motion must be reconsidered
either at the same meeting that the motion was made or at the next
regular meeting eventually following.
Mayor Bertino then asked the Commissioners three times if any of the
Commissioners on the prevailing side wanted to make a motion to reconsider
the motion that was made to deny the rezoning of the Norge Realty Property
at the meeting of November 11 , 1977. No motion was made to reconsider.
Mayor Bertino then suggested that discussion of legal strategy in this
case be placed on the agenda for the next regular meeting.
Regular Meeting -1- November 22, 1977
3. Mr. Mark Zenobia was present to appeal to the Commissioners for
relief on special assessments on his properties.
Commissioner Donly made a motion, seconded by Commissioner Cook
to waive the ordinance requirement and issue a permit to build on three
lots in question but Mr. Zenobia will not receive a C.O. on these lots
until an agreement has been worked out between City Attorney Adler,
Broome & Farina and himself regarding the total assessments in arrears.
The motion was carried unanimously.
The Commissioners instructed City Manager Lassiter to look intolhe
minutes to locate what was said to Mr. Zenobia regarding restitution
due to Mr. Zenobia from Hosey Construction Co.
PUBLIC HEARINGS
4. Mr. R. J. Reese was present to request to rezone from R-M to C-2
the property located on all of Blocks 1, 3 and 4 and Lots 4 through 9
both inclusive of Block 2 Liberty Heights with the stipulation that
the owner could not use Bock 3 for Commercial use until such time he
would demolish the existing apartments as recommended by the Planning
and Zoning Board.
City Attorney Adler read the Title of the Ordinance for consideration
for first reading and Mayor Bertino then declared the Public Hearing
opened and asked if there was anybody present to speak in favor of
this rezoning. After a comment had been made from the audience, by
Mr. Stewart, stating that all this property should be rezoned 6-2, Mayor
Bertino then asked for any comments opposing this rezoning. No comments
were made in opposition, the Mayor then declared the Public Hearing
closed.
Building Official Maxwell commented that the area should be zoned
for C-2 as long as it is agreed by Mr. Reese that the residential
apartments eventually be destroyed.
Commissioner Cook then made a motion, seconded by Commissioner Adams
to adopt on first reading the Ordinance rezoning from R-M to C-2
the property located on all of Blocks 1 , 3 and 4 and Lots 4 through 9
both inclusive of Block 2, Liberty Heights, generally located north of
Sheridan Street, south of Liberty Terrace, east of S W 12th Avenue
and west of S W 7th Avenue, with the understanding that a covenant will
be prepared by Mr. Bill Spencer to be read on second reading with the
Ordinance stating Mr. Reese's agreement that the existing structure
on Block 3 would not be used for commercial purposes.
The motion passed on the following roll call vote:
Commissioner Adams - Yes Commissioner Donly - Yes
Commissioner Cook - Yes Mayor Bertino - Yes
5. City Attorney Adler read the Title of the Ordinance amending the
Pension Plan of the General Employees, amending Article I and Article VI
of Ordinance #541 . City Attorney Adler explained the changes that were
being made.
A motion was then made by Commissioner Cook, seconded by Commissioner Donly
to adopt on first reading the ordinance amending the General Employees Pension
Plan.
The motion passed on the following roll call vote:
Commissioner Adams - Yes Commissioner Donly - Yes
Commissioner Cook - Yes Mayor Bertino - Yes
Mayor Bertino was assured by Commissioner Donly that these changes would mean
no additional costs to the City.
Regular Meeting -2- November 22, 1977
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{ 6. A Resolution was read by City Attorney Adler appointing Mr. Robert n ,
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'. Duncanson to the joint Police and Fire-Fighter's Retirement System
Pension Committee. ;�>w
A motion was made by Commissioner Donly, seconded by Commissioner Adams
to adopt the Resolution appointing Mr. Duncanson to the Police and Fire-
Fighter' s Retirement System. The motion was carried by all . "f
CVTI 7. A motion was made by Commissioner Donly, seconded by Commissioner Adams
t 'vto acknowledge receipt of the minutes submitted by the Planning and
Zoning Board regarding revision of C-1 and C-2 Districts and Industrial
Districts.
Commissioner Donly then withdrew his original motion and restated the uj
motion saying - to acknowledge the receipt of minutes from the Planning
and Zoning Board and that the Commissioners study the minutes and City WY,
Attorney study the minutes and that the Commissioners meet in workship session J;
as soon as possible to discuss these changes. ' The motion was seconded ->_r
by Commissioner Cook and carried by all .
8. A motion was made by Commissioner Donly, seconded by Commissioner Cook ".
to approve the request of the fire department to advertise for bids for <-
miscellaneous protective clothing as budgeted. The motion was carried
by all .
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9. There were no bids received on the beach parking package and Mayor Bertino 'e
suggested to Mr. Lassiter that he advertise these gates for sale in they;
Florida Municipal Magazine and that possibly during the upcoming convention tin
there might be an interested party.
10. City Manager Lassiter recommended to the Commissioners that the contract
for the truck be awarded to Hollywood Ford and that the contract for the
body be awarded to Callahan Motors.
Commissioner Donly then made a motion, seconded by Commissioner Cook to
award the contract for the truck to Hollywood Ford at the cost of $5,099.00.
The motion was carried by all.
Commissioner Cook then made a motion, seconded by Commissioner Donly to
award the contract for the body to Callahan Motors at the cost of $1 ,545.00.
The motion was carried by all.
11 . A motion was made by Commissioner Cook, seconded by Commissioner Donly
to purchase a steam cleaning machine under state bid from Ceco Chemical
Manufacturing in the amount of $1 ,795.00. This is a budgeted item. The
motion was carried with Mayor Bertino voting no.
12. A motion was made by Commissioner Cook, seconded b Commissioner Donly
to grant the request by Les Byron Associates to wale fee for paving
of N E 7th Avenue Port Everglades Authority, Foreign Trade Zone, No. 25
(temporary location). The motion was carried unanimously.
13. A motion was made by Commissioner Donly, seconded by Commissioner Adams
to table discussion and possible action of County requiring fluoridation
of the City's public water supply until the next meeting and between
now and then to ask the City Administration to contact Mr. Pefley of
the engineering section of H.R.S. and find out exactly what they are
telling us and how serious they are and whether or not this is going to cost
us some money if we don't move. The motion was carried unanimously.
14. A motion was made by Commissioner Donly, seconded by Commissioner Cook
to table discussion on an Ordinance selecting members to the General
Employees Pension Board until the Ordinance has been drawn up.
The motion was carried by all.
15. A motion was made by Commissioner Donly, seconded by Commissioner Cook
to authorize a Resolution be drawn up for public agencies federal surplus
property utilization program. The motion was carried by all .
Regular Meeting -3- November 22, 1977
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16. City Attorney Adler presented an Ordinance that he had prepared for study
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by the Commissioners for compliance with flood plain management criteria.
The Commissioners agreed to review this Ordinance before sending it to ??
Atlanta and adopting it.
17. Citizen's Comments
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=" None.
r` Addendum
18. Assist ant City Manager Marant informed the Commissioners of the $60,000.00 `z
eke;. received by Grant to build a Community Center in Dania. ;k-
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•eW, A motion was made by Commissioner Donly, seconded by Commissioner Cook j
4. to move the target site for that building from the Modello Park
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district to the Mosquito Control district building area that is fenced in.
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The motion was carried by all.
Commission Comments
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ru- Commissioner Cook commented on the conditions of the streets and was
informed that this is being worked on and soon a presentation will be ,
made to the Commissioners regarding the repairing that could be done
fs` by the County at a considerable savings to the City of Dania.
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Commissioner Donly commented on the situation of burgular alarms in the
downtown area. City Manager Lassiter suggested .that an ordinance be drawn
w. stipulating the amount of time the alarm goes off and Mayor Bertino
instructed Police Chief Rigo to get some ideas together on the handling
of ibis matter and then made recommendations to the City Attorney.
Mayor- Commissioner
City Clerk - Auditor
Regular Meeting -4- November 22, 1977
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WALDEN AND NVALDEN
A1"1'OIINEV.1 A'r LAW
1111- DANIA IIANH III:/I3)1NO
Qnn EAST I)ANIA 111:ACIi 110L'LEVAIII)
DANIA, FLOW DA :M00I
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November 22, 1977 DIIAMI o-u1•on.I1
1\I A\i\ l'11u fI A5 I MMI'ANO "EACH nUM-Opn"
HAND DELIVERY
Mayor-Commissioner John Bertino
Commissioner James G. Adams
Commissioner Jean Cook
Commissioner Robert J. Donly
Commissioner Howard Hirsch
Mr. John S. Lassiter, City Manager
Mr. Frank C. Adler, City Attorney
All in care of City Hall
Dania, Florida 33004
Re: Our file number M-4-448
Norge Realty Management of Florida,
Inc. and Caesar. Favarato - application
for rezoning
Gentlemen and Miss Cook:
We represent the above described applicants in connection
with a proposed ordinance to rezone certain property on Sheridan
Street to C-2 (commercial) zoning classification.
The application was denied by a three to two vote on
November 8, 1977.
We have generally advised the city that our clients shall
file a suit in the Circuit Court, Broward County, Florida, in an
effort to reverse the action of the city commission.
It is our understanding that Mr. Adler, your city attorney,
will read an opinion to the city commission tonight concerning the
various issues involved in the suit. It is our further under-
standing that the general subject has again been placed on the
agenda of the commission for December 13, 1977 , to act upon a
possible motion to reconsider. Based on my general knowledge
of all standard texts on rules of order, the motion to reconsider
must be presented by one of the commissioners who earlier voted
against the ordinance. Obviously, in view of such rule, we have
no way of knowing whether there will be a movant on December 31,
1977, to present a motion to reconsider. � 3
We have earlier discussed the proposed suit with Mr. Adler
from a costs standpoint and we have estimated that taxable costs
could easily be in the neighborhood of $10,000 .00 . This estimate
includes such items as "blown up" and mounted aerial photographs,
transcripts of the proceeding at the meeting before the city
commission, various depositions, expenses of surveys of the block
in question, individual photographs of each building on each lot,
a deposition of a witness in Silver Spring, Maryland, fees of
expert witnesses, and the cost of the court reporter at the
final hearing.
A very effective tool which has been recently used
extensively is that of taking video tapes of the witnesses at
depositions so as to allow the court to judge the credibility
of the witness by observing his appearance, demeanor and
expressions during the course of the taking of a video tape
deposition. Unfortunately, substantial video tape depositions
can be expensive.
MWIN
Page two
We finally advise that there are several methods of seeking
a review or appeal of a municipal zoning application. These are
certiorari, declaratory judgment, mandamus, injunction, etc.
We are inclined to favor seeking a review by certiorari.
The Rules of Civil Procedure require that a petition for certiorari
be filed within thirty (30) days after the conclusion of the
proceeding sought to be reviewed.
At this moment, we are inclined to use certiorari as the
remedy of our clients. Ordinarily, certiorari amounts to nothing
more than a court review of the proceedings had before the city
commission and would not involve the taking of testimony. However,
in a number of Florida cases, testimony has also been permitted
in a zoning certiorari proceeding.
The primary purpose of this letter is to advise that--
because of the thirty (30) day rule--we shall probably file the
petition for certiorari before December 13, 1977. Still, on
behalf of our clients, we would be hopeful that the commission
might still reverse itself on December 13, 1977.
In a conversation with Mr. Adler concerning the costs, he
made the suggestion that we could minimize the cost if we could
enter into a written stipulation (or agreement) summarizing the
basic testimony and matters which were presented to the city
commission.
I am certainly willing to consider submitting the case
to the court for a final determination on a stipulated set of
facts assuming, of course, that both sides can agree upon what
should appear in the stipulation.
The advantage of the stipulation is that it might well
save much of the expense of some of the depositions and trans-
cripts. Obviously, it will be equally beneficial to both sides
to present demonstrative types of evidence to the court such as
phtographs, surveys, zoning maps, zoning certificates and like
physical evidence.
Again, assuming the ability to agree upon stipulated facts
and to agree further upon the use of demonstrative evidence such
as the photographs, surveys, etc. , I believe I would be willing
to agree with the city attorney to allow the judge to rule upon
the case--based upon the stipulated facts and demonstrative
evidence--without taking any testimony and without calling expert
witnesses . Naturally, I am certain that each side would like to
make some type of argument to the court.
I mention the possibility of the stipulation only to indicate
a sincere desire on the part of the plaintiffs to minimize the
costs, regardless of who pays the same.
I request that you read this letter into your record
tonight and that you give some general authority to the city
attorney to consider the stipulation method. If you object to the
stipulation method, please advise the city attorney that you do
object so that we can abandon the thought of a trial by stipulation
in the matter.
Thank you.
Very truly yours,
Clarke Walden
CW:bks
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November 22 , 1977
?: Honorable Jean Cook
City Commissioner
City of Dania
Dania , Florida 33004
S s: Re : Norge Realty Management of Florida, Inc .
Dear Commissioner Cook :
e� In reply to your letter of November 14, 1977, I will to
answer attempt
L . fol you questions in the order of which they were asked as
t�
1 . uestion - Is the estimate of Clarke Walden that
the costs of the plaintiffs in prosecuting the
suit , estimated at approximately $10,000.00 , a
reasonable estimate?
Answer - I cannot tell another attorney the
manner in which he tries a case . However, by
the City stipulating to many of the facts
involved, this amount can be substantially reduced.
2. Question - Is it now permitted by the court rules
to videotape the appearances of witnesses in
discovery proceedings prior to the trial?
Answer - Yes .
3. question - Would the deposition of the executor
in Maryland be admissible at the final trial of
the matter, assuming that it shows that the area
in question is not suitable for rental?
Answer - Yes . However, this testimony could be
owned by written interrogatories .
4 . Question - Would it ordinarily be necessary that
o� and Mr. Walden go to Maryland to take the
deposition?
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Honorable Jean Cook
Page 2
November 22 , 1977
Answer - If Mr. Walden insists , which he has
as right to do, to take an oral deposition in
Maryland, both Mr. Walden and myself have to
attend same .
5 . Question - Would the court accept testimony
t at t e owners of 70% of the lots favor the
rezoning?
Answer - Yes .
6 . uestion - Is it your opinion that such a
majority would be a factor which might influence
the court in ruling in favor of Mr. Walden' s
clients?
Answer - The opinion of the majority of property
owners involved would be a factor which might
influence the court and its ruling. However, I
do not believe that it would be the controlling
factor.
7 . Question - Can the testimony of five members of
t e p anning and zoning board and the testimony
of Mr. Sparkman, the zoning consultant, be
admitted into evidence even though they are
testifying against the opinions of the majority
of the city commission?
Answer - Yes . This evidence is a matter of record
in r[e minutes of the Planning and Zoning Board.
S . Question - What is your general opinion as to the
e ect of all of the city s experts (with such
testimony being against the city) in the final
outcome of the case?
Answer - The recommendations of the Planning and
Zoning Board and the Zoning Consultant could be
adverse to the city' s defense in the litigation.
9 . Question - Do you think it is possible that the
city can hire professional appraisers or zoning
experts who will testify that the highest and
Honorable Jean Cook
Page 4
November 22, 1977
Answer - The court can properly take into
consideration the general description of the
neighborhood involved, especially as to
changes that have occurred over the years .
14. Question - Will the court admit into evidence
t e testimony of all of the former building
officials?
Answer - The court can admit into evidence any
testimony that is material and relevant to this
case whether it be the former building officials
or someone else.
15 . Question - Is it your opinion that the testimony
of all former building officials (testifying in
favor of the C-2 zoning) will be a factor in-
fluencing the court that the best use of the
property is a C-2 (commercial) use?
Answer - I believe that such testimony will be
for influencing the court. However, such
testimony will not necessarily be controlling
factor.
16 . Question - Based on your long service on both the
county commission and the city commission, based on
your specialized experience as a zoning lawyer and
based on your general knowledge of the neighborhood,
please make your best estimate, analysis or guess
as to the chances , or odds , which exist in favor of
the city with respect to obtaining a favorable
decision in the suit to be filed by Mr. Walden. I
realize that you cannot be exact in your analysis
but I do request that on whatever scale you deem
appropriate, you make the best analysis possible as
to whether the chances of the city are "nill" , "slim",
"moderately favorable", "heavily favorable", etc.
Answer - Based upon my past experience, it is my
opin n that the odds are against the city' s position
® g ®
Honorable Jean Cook
Page 5
November 22 , 1977
However, I cannot predict how the court will
rule in this instance. However, as stated
hereinabove, I will make every effort to
defend the majority decision of the City
Commission.
As to the matter of a Motion to Reconsider,
my opinion remains the same as stated before
in another matter. The prevailing side in this
particular case can move for reconsideration
and leave the matter pending to be voted upon
at a later date. This is in keeping with what
is known as "Thomas Jefferson's Manual of
Parliamentary Practice" as well as Robert's
Rules of Order.
I trust that the foregoing will be helpful to you.
Respectfully submitted,
e°
Frank C. Adler
City Attorney
City of Dania
FCA:pc
AGENDA
REGULAR MEETING
DANIA CITY COMMISSION
NOVEMBER 22, 1977
8:00 P.M.
Invocation.
Pledge of Allegiance.
Roll Call .
I . Approval of minutes from the regular meetirpc of November 8 and workshop
® meeting of November 7th.
2. Request cd Commissioner Jean Cook that City Attorney Frank C. Adler, read
a formal opinion (requested by Miss Cook) concerning generally costs
and chances of final judgment in favor of City in proposed litigation
being filed by Norge Realty Management of Florida, Inc. , and Caeser Favarato,
® concerning rezoning Lots I to 5, inclusive, and Lot 7, Block 43, North
Hollywood, with the rezoning of such lots to C-2 (commercial ) classification
being denied by a three to two vote of the City Commission on November 8, 1977.
Commissioner Cook has requested that the opinion simply be read and that
any discussions which are appropriate take place. However, in placing the
item on the agenda, Commissioner Cook has specifically requested and
® instructed that the agenda item be limited to discussions only (after the
opinion is read) and that any later motions or affirmative actions be
deferred until the Commission meeting of Tuesday, December 13, 1977.
In connection with the matter, Commissioner Cook has stated that Commissioner
Hirsch will be absent from the meeting on November 22, 1977, and that,
therefore, in placing the subject on the agenda for November 22, 1977,
® she is requesting only that discussions on the opinion of Mr. Adler
take place and that she is limiting the placing of the item on the
agenda so that no motions or affirmative actions shall be taken until
Commissioner Hirsch returns to the country so that a five member
quorum can be present.
3. Appeal for relief on Public Improvement Assessments. Re: Ord. 136.
APPEARANCE: Mark Zenobia.
EXHIBIT: Special Assessments list.
4. Public Hearing and possible first reading of an ordinance to rezone
from R-M (medium-high density) to C-2 (commercial ) the property located
on all of Blocks I , 3 and 4 and Lots 4 through 9 both inclusive of Block 2,
Liberty Heights, generally located north of Sheridan Street, south of
Liberty Terrace, east of S.W. 12th Avenue and west of S.W. 7th Avenue.
The Zoning Board at their meeting recommended that the Commission approve
this request with the stipulation that owner couldn't use Block 3 for
commercial use until such time he would demolish the existing apts.
APPEARANCE: Mr. R. J . Reese.
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5. First reading of an ordinance amending pension plan for general employees.
6. Resolution appointing member to Police 8 Fire Fighter's retirement system.
7. Zoning Board's recommendations on revisions of the C-1 & C-2 districts 8
• industrial districts.
8. Fa ;;uest from Fire Department to advertise for bids on miscellaneous pro-
tective clothing as budgeted.
9. Opening of bids on beach parking package.
10. Tabulation 8 recommendation from City Manager for truck 8 body hoist.
EXHIBIT: Memo forthcoming.
II . Request to purchase Steam Cleaning Equipment from Ceco Chemical Mfg.
in the amount of $1 ,795.00.
�- EXHIBIT: Copy of letter from CECO Chemical Manufacturers.
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}` 12. Roquesi from Les Byron Associates to waive fee for paving of N.E. 7th Avenue
fort Everglades Authority, Foreign Trade Zone No. 25 (temporary location).
13. Possible discussion and action of County required fluoridation of the
r==� City's public water supply.
I4. Selection of members to the employee' s Pension Board; 2 City employees
it and 3 Dania residents.
15. Discussion 8 possible action on documentation of authorization for public
agencies federal surplus property utilization program.
EXHIBIT: Resolution forthcoming - Copy of application.
16. Discussion on ordinance for compliance with flood plain management criteria.
17. Citizens Comments.
ADDENDUM
18. Reconsideration of neighborhood facility sites In regards to 1977-78
Community Block Gran Funding.
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City Commission Agenda -2- November 22, 1977
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