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HomeMy WebLinkAboutRegular Meeting (60) MINUTES REGULAR MEETING DANIA CITY COMMISSION NOVEMBER 22, 1977 Invocation by Richard Marant Assistant City Manager Pledge of Allegiance Roll Call Present: Mayor: John Bertino Vice Mayor: James Adams Commissioners: Jean Cook Robert Donly City Manager: John S. Lassiter, Sr. 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 is qudstion 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 into the minutes to locate what was said to Mr. Zenobia regarding restitution due to Mr. Zenobia from Nosey 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 rezonedcC-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 k541. 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 a,; on was read y City Attorney Adler inting Mr. Robert 5 Duncansonito the joint bPolice and Fire-Fighter's oRetirement System Pension Committee. 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. 7. A motion was made by Commissioner Donly, seconded by Commissioner Adams to 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 motion saying - to acknowledge the receipt of minutes from the Planning and Zoning Board and that the Commissioners study the minutes and City Attorney study the minutes and that the Commissioners meet in workship session as soon as possible to discuss these changes. The motion was seconded 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. y 9. There were no bids received on the beach parking package and Mayor Bertino suggested to Mr. Lassiter that he advertise these gates for sale in the Florida Municipal Magazine and that possibly during the upcoming convention there might be an interested party. x; 10. City Manager Lassiter recommended to the Commissioners that the contract for the truck be awarded to Hollywood Ford and that the contract tor. the r 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 by Commissioner Donly to grant the request by Les Byron Associates to wa a 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 00 16. City Attorney Adler presented an Ordinance that he had prepared for study 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 None. Addendum 18. Assist ant City Manager Marant informed the Commissioners of the $60,000.00 received by Grant to build a Community Center in Dania. A motion was made by Commissioner Donly, seconded by Commissioner Cook to move the target site for that building from the Modello Park district to the Mosquito Control district building area that is fenced in. The motion was carried by all . Commission Comments 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 by the County at a considerable savings to the City of Dania. Commissioner Donly commented on the situation of burgular alarms in the downtown area. City Manager Lassiter suggested that an ordinance be drawn 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 this matter and then made recommendations to the City Attorney. ,z ez Mayor- Commissioner City Clerk - Auditor r ' Regular Meeting -4- November 22, 1977 r- 00 WALDEN AND WALDEN ATTORNEYS AT LAW TIIC DANIA HANK 11111MINO 00B BAST DANIA III:ACII HOULI'VARD DANIA, PIDRIDA 33004 CI.A1n1: WAI.OEN TI:LI:rKONE W051 ml."10 ,,A%IEe 11.WALnEN November 22, 1977 HIAMI P$5.001I IIICON T110SIAN ,I IOMI•ANO 11EACII 000-0000 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. s; f 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. i 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, liLv Lt� Clarke Walden CW:bks • ° ° ® LAW OFFICES ADLER, TOLAR & ADLER SUITE 301 BAWIEW SUILOINO 1040 BAYVIEW DRIVE AT SUNRISE BOULEVARD JOHN N.TOLAR FRANK C.ADLER FORT L.AUDRRDALR,FLOniDA 033OS KARL W.ADLER (305)566-3237 November 22, 1977 Honorable Jean Cook City Commissioner City of Dania Dania, Florida 33004 Re: Norge Realty Management of Florida, Inc. Dear Commissioner Cook: In reply to your letter of November 14, 1977, I will attempt to answer you questions in the order of which they were asked as follows : 1. uestion - Is the estimate of Clarke Walden that t e 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 vi eotape the appearances of witnesses in discovery proceedings prior to the trial? Answer - Yes. 3. Question - Would the deposition of the executor n Mary and 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 ob—taln-ed by written interrogatories . 4. Question - Would it ordinarily be necessary that both you and Mr. Walden go to Maryland to take the deposition? • • • • Honorable Jean Cook Page 2 November 22, 1977 Answer - If Mr. Walden insists , which he has a"St to do, to take an oral deposition in Maryland, both Mr. Walden and myself have to attend same. 5. uestion - Would the court accept testimony t at the owners of 70% of the lots favor the rezoning? Answer - Yes . 6 . uestion - Is it your opinion that such a major ty 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 . uestion - Can the testimony of five members of t e planning 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 ffe- minutes of the Planning and Zoning Board. 8. uestion - What is your general opinion as to the effect—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 Zo nnig Board and the Zoning Consultant could be adverse to the city' s defense in the litigation. 9. uestion - Do you think it is possible .that the city can hire professional appraisers or zoning experts who will testify that the highest and r\ 4=`i M M ® • • Honorable Jean Cook Page 3 November 22, 1977 best use of the property in question is "residential" even though all of the city' s experts at the administrative level (the members of the planning and zoning board and the zoning consultant) will testify to the contrary? Answer - I cannot predict what a professional appraiser' s or a zoning expert's opinion would be as to the highest. and best use of the property in question. Their opinions will be based upon their own judgments made after their individual investigation of the subject area. 10. Question - If the plaintiffs are successful, wi a of such costs be "taxed" or "assessed" against the city so that the city has the obligation of paying same? Answer - All legitimate costs will be assessed nr taxed against the losing party. 11. Question - Is it possible that the city will also incur similar costs which it will have to absorb if it is not successful in the suit? Answer - Yes. The city could incur substantial costs which will depend upon the magnitude of the litigation. It would be my duty as City Attorney to present evidence within reason to uphold the action taken by the City Commission in this matter. 12. question - Do you believe that the court will admit into evidence photographs and descriptions of the general character of the neighborhood? Answer - Yes . 13. Question - Do you believe that the general description o t e neighborhood (as above described) will in- fluence the court to rule that the lots in question should be zoned into a commercial classification? Honorable Jean Cook Page 4 November 22, 1977 Answer - The court can properly take into co�deration 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 f.. -officials? Answer - The court can admit into evidence any test mony that is material and relevant to this case whether it be the former building officials ` . or someone else. 15. uestion - Is it your opinion that the testimony o aformer building officials (testifying in 4'- 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 on—inion that the odds are against the city's position :Ct ri'. 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, Frank C. Adler City Attorney City of Dania FCA:pc a. 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Invocation. • Pledge of Allegiance. Roll Cali . 1 . Approval of minutes from the regular meetinc of November 8 and workshop • meeting of November 7th. 2. Request of 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 b, 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. APPEARAiCE: 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. • 5. First reading of an ordinance amending pension plan for general employees. 6. Resolution appointing member to Police $ Fire Fighter's retirement system. 7. Zoning Board's recommendations on revisions of the C-I $ C-2 districts $ • industrial districts. 8. Request from Fire Department to advertise for bids on miscellaneous pro- tective clothing as budgeted. 9. Opening of bids on beach parking package. 10. Tabulation $ recommendation from City Manager for truck $ body hoist. EXHIBIT: Memo forthcoming. Il . 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. ,1 r 12. Request from Les Byron Associates to waive fee for paving of N.E. 7th Avenue Port Everglades Authority, Foreign Trade Zone No. 25 (temporary location). 13. Possible discussion and action of County required fluoridation of the City's public water supply. 14. Selection of members to the employee's Pension Board; 2 City employees 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. ;d ADDENDUM x` 18. Reconsideration of neighborhood facility sites in regards to 1977-78 +' Community Block Gran Funding. n City Commission Agenda -2- November 22, 1977 Si 14„ ' ti n•.