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HomeMy WebLinkAbout1993 02 15 City Commission Special Minutes 92-93-10 . SPECIAL MEETING CITY COMMISSION CITY OF WINTER SPRINGS MONDAY, FEBRUARY 15, 1993 The Special Meeting of the City Commission of the City of Winter Springs, Florida, was called to order by Mayor Philip A. Kulbes at 7:20 p.m. Roll Call: Mayor Philip A. Kulbes, present Deputy Mayor John V. Torcaso, present Acting City Manager John Govoruh~,present City Attorney Frank Kruppenbacher, present Also present: Attorney Keith Bricklemyer Commissioners: Don Jonas, present John Langellotti, present Terri Donnelly, present Cindy Kaehler, present Legal review of lawsuit from Sullivan Properties: Attorney Kruppenbacher said subsequent to receipt of the Lawsuit he requested the Clerk to send it to the Florida League of Cities insurance office. He spoke with John Morrison who handles their Risk Management who has advised that with regard to this lawsuit as framed, if filed, there would be the sum of $400,000 to cover a judgement against the City; they would provide legal defense through the standard firm they use Dean, Ringers, Morton and Lawton. As it relates to the individual Commissioners, Commissioner Torcaso, Commissioner Donnelly and Commissioner Kaehler they would assign Steve Lengauer of Eubanks, Hilyard, Rumbley to represent the Commissioners individually. . In the event a judgement was rendered against the City there would be $400,000 available. In the event the judgement was rendered against the individual commissioners they do not have coverage for that. The individual Commissioners named know whether or not these allegations are true; I think for the record I'll say no, they are not true, but suffice to say I am speaking to the three Commissioners. Attorney Kruppenbacher went on to explain the Commission has a couple decisions or options they could take right now; one, they could decide to say there is no action for us to take; we have spoken on the topic and if somebody wants to file a lawsuit that is their jurisdiction and prerogative, and we will see where the chips fall. The other option the Commission has centers around whether or not your interpretation of a mining prohibition in the Comprehensive Plan was somehow injurious to this particular project. We do have procedures in your particular Code that have been adopted for someone to raise issues of vested rights, if they believe that something has passed that hurt their rights. Attorney Kruppenbacher said he received a letter from the Department of Community Affairs, Stephanie Callahan, General Counsel, that basically stated she believes the Department's position would be they do not take issue with how we would interpret that provision, that that is within your jurisdiction. Attorney Kruppenbacher said he was also provided a letter from Lisa Miskinis advising that Mr. Yeager has some contractual rights to acquire this property, and so at this point, the City has the insurance coverage as mentioned above. It is the Commission's policy decision whether or not they want to change their interpretation on mining, whether or not they want to tell this developer to go through the vested rights application, or whether or not they want to do nothingL . . . . Special Meeting, City Commission, Feb. 15, 1993 Page 2 92-93-10 Attorney Mike Jones said we are here tonight because there is a twofold problem. One, there has been an interpretation to the Comprehensive Plan to include sand in mining and two because we have a problem with this project never having been pre- sented to this Commission. He said, if he is correct, this Commission has never received nor reviewed engineering plans, never received or reviewed statements from the hydrologists or engineers and from the people who have put in $100,000 worth of work on this project. Then Attorney Jones spoke about the interpretation of the mlnlng issue. He said that issue did not come up until January and this application has been before the Commission for a year. He suggested that when you read the Comprehensive Plan Chapter 187, that Chapter 187.15 also be read which outlines private property rights. Attorney Jones asked, those two issues, the Comprehensive Plan and the environmental issue, how did the Commission want to approach them? Commissioner Donnelly said she thinks Attorney Jones knows that she is a staunch proponent of property rights. She said she doesn't see it as an issue of property rights. She said, "if I don't have a property owners right to protect, then I have to look to the taxpayers of Winter Springs to protect", and she said she did not have a property owner so she had to vote for the taxpayer. Attorney Jones stated, "your legal counsel has advised you that these people have as much right as "property owners" as anybody else; they have a contract right to buy the property; I know that you have been advised of that legal right." Commissioner Jonas spoke about application for a borrow pit; in order to apply for a borrow pit permit you had to apply to the City Manager and the City Manager would then bring it to Council for approval. He said that was the procedure to be followed for the application of a borrow pit at that time. Then halfway through this project all the rules changed. Why was the Comprehensive Plan ever brought into this project knowing that they had applied at that time and that was the only method and procedure to be followed for the application of a borrow pit, and they fall under that right because they had applied long before the Comprehensive Plan was yet into progress. He said the Comprehensive Plan was not even approved at that time. The Comprehensive Plan came much later and the adoption of the Comprehensive Plan came much later. So the Comprehensive Plan should have never been an issue in this project. Commissioner Jonas said he would like to know why it was brought to be an issue when it should never have been brought in because the reason that that is important is because the entire project hinged on the definition of mining, it killed the project. Commissioner Kaehler said if the developer feels that he has a vested rights, she said there is no application for a vested rights hearing in front of her. Commissioner Jonas stated that Sullivan Properties came to this City with an application for a borrow pit that was never processed. The Land Development Coordinator stated that it was processed and was denied by the Commission in March 1992, four to one vote. Mr. LeBlanc said it was denied twice. Special Meeting, City Commission, Feb. 15, 1993 Page 3 92-93-10 . The City Planner, Greg Kern, stated on November 18, 1992 he learned that the borrow pit issue may be coming to the forefront again and he wanted to find out if there was any provision in our existing codes and our Comprehensive Plan that might have a bearing on this proposed land use. He said his job as City Planner that is one of his primary tasks to insure consistency of any development with the Comprehensive Plan, with the Codes, etc. Mr. Kern said on Nov. 18, 1992 he phoned Attorney Brick1emyer and asked him if he could give him some interpretation in terms of consistency with our Comprehensive Plan, etc. and he provided an answer that we did have a prohibition against mining in the City and this was the first time mining came up. It was brought up at that point on November 18, 1992, by Attorney Brick1emyer that he noted that we do have a prohibition against mining. However, a definition of mining was not provided in the Comprehensive Plan. Mr. Kern explained that Staff has not had a chance to review any conceptual plan, nothing has been presented to the Land Development Coordinator, our standard review process so that is where this began. Commissioner Jonas said He has no problem regarding the fact that it has to go through the procedure that is necessary to get their project adopted. He said he never questioned that. His point is as long as that continued to come before this Commission, that permit that was originally applied for should have still been in existence and still been adhered to. . Mr. Kern said it was denied March 1992. Commissioner Jonas said denial has no bearing on the point he is making. He said this Commission at a Workshop, as a favor to him, brought back the issue so the original permit continued to be in existence. Mr. Kern pointed out it was denied on environmental grounds. Commissioner Jonas said the only one who can determine whether that permit was still in action is an interpretation by an attorney. The City Planner explained the original application was for the borrow pits. What the Commission saw on December 1 was an entire development, single family, commercial, parks, etc., the whole development, not the same thing that was originally applied for and denied. So at that point it involved the Comprehensive Plan because we have stated land uses, we have stated acreages for single family, commercial, park1ands, etc. Some land uses were different from our Comprehensive Plan that was adopted in April. So definitely when it was presented to the Commission it was definitely something that involved the Comprehensive Plan. He noted again it did not get presented to the City employees for review, so they can not provide input when they are not afforded the chance to do their standard review process of any development. Commissioner Lange110tti spoke about an engineering problem. Attorney Kruppenbacher explained that he has had multiple conversations with Mr. Rosen's office regarding the fact that once engineering was hurdled, there were Settlement Agreement and Comprehensive Plan issues to be dealt with. Attorney Kruppenbacher said he called the meeting to have all the issues discussed and worked through. So there were issues talked about with the Comprehensive Plan all . along. They were always being talked about. . . . Special Meeting, City Commission, Feb. 15, 1993 Page 4 92-93-10 Attorney Kruppenbacher said he can not tell you how many times Bob Rosen came to his office to talk about this project. Reality was he knew that this Settlement Agreement would have to be dealt with. David Brown when he applied talked about the Settlement Agreement. Attorney Kruppenbacher said in retrospect what should have happened, on Day One the lawyers should have walked in and said what do we have to do to do this project, confirmed it up in writing and moved forward. That was not done. We do have a process for this. He can file a vested rights application. Attorney Kruppenbacher said he was just clarifying on the record that there was not some effort, at least he is prepared to say that his law firm participated in, not to discuss the issues. He said he is the one who asked for the meeting to make sure we could literally identify all the issues and make sure we all understood what we were dealing with because there was so much confusion. Attorney Jones said in November there was quite an extensive preparation of documents that was handed to Staff and Commission along with developer commitments. He said he finds it difficult to believe that someone would spend that much time and money and not address issues that had been brought up at other meetings. He said he is not saying they weren't brought up, he is just saying there may not have been the priorities placed on those issues that we are placing on them today. In particular we are talking about Mr. Jonas has asked whether or not the Comprehensive Plan applied or not. We are talking about whether or not mining applied or not. Attorney Jones said he has a hard time with this City and Staff not relating to the citizens what a borrow pit is. He said he took the time to interview this past week with citizens that have moved into Winter Springs and in Seminole County, and they think a borrow pit is something like you see on television, like a strip mine. They don't understand what a borrow pit is. He said he can't believe that people in Florida do not understand that every overpass that we have on 1-4, 75, 95, there is a borrow pit right next to it that created that overpass. The dirt is dug right next to the overpass, and its a borrow pit, and its a lake and you can go up and down 95 75, and 1-4 and those lakes are full of fish and people use them, they are waterfront lots. Attorney Jones spoke about Wander Lake that he dug for this City. He said he defies anyone in this office to stand up and say they found a borrow pit that is a muck hole. Commissioner Kaehler spoke about a failed borrow pit on Snow Hill Road. She said that is not what she wants to see for the people that live in Winter Springs. Attorney Jones explained that borrow pit was dug by someone that did not know what they were doing. Mayor Kulbes called a recess at 8:00 p. m. and called the meeting back to order at 8:10 p.m. Attorney Jones said if this Commission is willing to entertain, we are willing to address the environmental concerns and the mining issue. He said we have the engineers, hydrologists, the experts available here for the Commission to listen to; they have a slide presentation and we could address some of the things that were referenced that did not happen including the reference to the change in the plan. Mayor Kulbes closed the public input to allow the Commission to speak on this project. Commissioner Kaehler said basically we're being asked to rescind our policy of the decision that has already been made on the mining issue. She said she refuses to do that. She said she thinks that the decision that was made was a good one. . Special Meeting, City Commission, Feb. 15, 1993 PageS 92-93-10 Commissioner Kaehler said if the developer still contends that this project was something that had some kind of vested rights, then she suggested to proceed with his request for a vested rights hearing. He does have that option within the Code. But so far as the mining issue is concerned, and she said she believes that can only be brought to the floor again by those who voted for it, she said she would not bring that issue back to the floor. She said her decision stands. Commissioner Jonas said there was one point he would like to make regarding the mining issue. He said according to our procedure and according to the mining definition that this Commission approved, basically there can be no development whatsoever in the City because in order to build a retention pond, the majority of the time you must take the dirt off site; you can not build a swimming pool because in order to build a swimming pool you must take the dirt off site; and he said that is the definition that stands before this Commission that was voted on. He said if this is what this Commission wants, he thinks we are in deep trouble. He said there cannot be any development in this City because of the definition of mining that this Commission brought forth. Commissioner Torcaso referred to a note from our City Engineer where he is talking with Mr. Britton and making inquiries about Tuscawilla Unit 15, and in addition it says Sullivan Materials Inc. does not have a contract or ownership of the property in question which raises another question whether the City Commission was in a position to consider a permit when Sullivan Materials has no interest or claim on Tuscawilla Unit 15. . Commissioner Torcaso said he resents Mr. Jones' comments in the proposed lawsuit that Commissioner Kaehler, Commissioner Donnelly and himself "wilfully, wantonly conspired" against this project. Attorney Bricklemyer recalled the discussion at the last meeting that he attended, the conclusion was that mining prohibitions encompassed borrow pits; and he said that term is generally understood, and that means an excavation for the sale of dirt off site; that is what it prohibits; If it is not being sold then it would not come under the prohibition. That is not in the Comprehensive Plan, it is not in the land development regulations and he said most jurisdictions that deal with the issue establish a cap beyond which it becomes a borrow pit. If you are doing a swimming pool for example and you have less than 10,000 cubic yards, maybe it is not a borrow pit. The difficulty this Commission has to contend with is the Comprehensive Plan established a prohibition and did not establish the definition to go along with that. And this Commission is stuck with having to interpret it. The land development code predated the Comprehensive Plan had provision for allowing these kinds of excavations. When the Comprehensive Plan came into being, this prohibition, which he didn't think this Commission was fully apprised of when it was approved, was included in it by the prior City Planner. So in terms of what is prohibited and what is not prohibited, Attorney Bricklemyer said he thinks this Commission has made a decision that a borrow pit, the excavation of dirt for sale off-site was encompassed by the mining prohibition. What constitutes a borrow pit remains an open issue. He said he did not have the definition, the land development regulations do not include a definition, the Comprehensive Plan does not include a definition; that ball is going to fall back in your court as well. . Attorney Bricklemyer explained his recollection of the telephone conversation with Mr. Kern was that Mr. Kern called him and asked him to look at the prohibition that was in . . . Special Meeting, City Commission, Feb. 15, 1993 Page 6 92-93-10 the conservation element, and asked what it meant. Attorney Bricklemyer said he looked at it and said it prohibits mining; where is the definition for mining, we do not have one. Then the issue was bounced to the Commission for a decision. Attorney Bricklemyer said we researched the issue, there is an argument on either side, it can go either way. He said he issued two memos to Attorney Kruppenbacher, which were then distributed to the Commission. He said there is a prov1s1on in another statute which would allow you to go another way and a provision in another statute that allows you to interpret it another way. He said it is in this Commission's discretion to determine what that prohibition means, what mining means and what borrow pits mean. Acting City Manager John Govoruhk said the application and the second application was made and it was denied. back in as an alternative with a subdivision and lake. filed and there is no application pending. for a borrow pit was denied During a Workshop it came No application has ever been Attorney Kruppenbacher explained he started out this meeting with Item One on the agenda reporting the lawsuit and advising the Commission they had to make a policy decision and they had a couple choices: they could do nothing and standby what they previously decided or they could decide to revisit their prior decision. He noted the City was served with this lawsuit ten minutes before the last meeting and it has not been filed, and it is the Commission's policy decision to make. Motion was made by Commissioner Kaehler to adjourn. Seconded by Commissioner Donnelly. Discussion. Vote on the motion: Commissioner Kaehler, aye; Commissioner Torcaso, aye; Commissioner Jonas, no; Commissioner Langellotti, no; Commissioner Donnelly, aye; motion carried. Meeting was adjourned 8:25 p. m. Respectfully submitted, ~t:~ Mary T. Norton, City Clerk Appyove~ / ), /0-. ! ..' " I // / 1, --------- / \ ~ L/~>t::A'-<'--'-MAYOR PHli~p A. ULBES i