Okay. Stand for the pledge. >> There's our flag over there to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice
for all. >> Okay. Next is roll call. >> Lisa Colorado >> here. >> Warren Ber here. Yep. >> John, he's absent so far.
Alexandria Bobo >> here. >> Margaret Schneider >> here. >> Mike Miller >> here. And Ly, she uh told me she wouldn't be coming, so she's excused. Nice
to see you. >> How are you? >> So, how you doing? >> Good. >> Next on the agenda, well, the approval of the agenda and I think there's a maybe a couple suggestions. Um, one is to
have the public comment possibly after the training in case there are any public comments so they don't have to sit through the training if they don't want to. And um another was the election of vice chair.
>> Yeah, I didn't put the election of the vice chair on there. So we can either do that tonight or move it to our next meeting. >> So those were just two suggestions if somebody wants to make a motion for
>> make a motion to approve the agenda. Is that what you're looking to do? >> Yeah. Either with the changes or as amended. as amended >> amended or yeah we have a so we have a motion and we have a second >> second >> okay all all in favor
>> I >> okay >> all approved um so I guess we'll we can add the uh election of the vice chair now we have a motion to nominate
the vice chair crickets. >> Nobody wants to make a motion to throw somebody on the chair. >> Nominate yourself. >> I I I'll make a motion. I would move it to be Marge Schneider. I think she has the most experience of anybody on the
>> But I'm an alternate. Can I'm not a >> Doesn't matter. >> I wasn't expecting that. Nobody ever is. >> Um, I guess if we don't have any other volunteers. Okay, >> so we have a motion. Do we have a second?
>> I'll second. >> And a second. All in favor? >> I. >> So, it's approved. >> Okay. >> 5. >> Great. >> All right. Congratulations. >> Thanks, Margaret. Congratulations. >> Congratulations. >> I really was not expecting that. >> Yes.
>> Um, okay. and approval of minutes. I I will say I just had one small typo. If you could change defer to defer, please. >> I will. >> We can. Besides that, I think good. Um,
do we have a motion for approval of the minutes? >> I'll move that. >> Okay. And a second. >> Second. >> All in favor? >> I >> I. >> So, we have approval of the minutes by vote. >> Great. I don't think we have a disclosure of
conflict tonight, so we can skip that. Um, how about unfinished business? Do we have any unfinished business? There's nothing on there, but none. >> Okay. So, we can move to new business. Do you have charts on that? You have charts on that?
>> Yep. You want me to bring that up? >> Yeah, that' be great. >> Okay. >> I have a quick announcement though for the board. Uh I may not be here towards the end of the meeting so I wanted to mention this now. At one of the within the last month or so the city commission
has um amended the planning board's responsibilities. I'm not sure if all of you saw that but the the city the city historically has had a number of boards to include what's called the land management board. Um and those other
boards have been basically done away with and their responsibilities are now vested or now part of the planning board's responsibilities and that will become very apparent over the next month or two. um we are going
to be required to update and provide a um a report to the state for the North,000 Island Management Plan. And that has historically been the land management board's responsibility, but we're going to be you're you're going to
be wearing that hat. Well, you are wearing that hat now. And we'll be bringing some business before the planning board to you can exercise wearing that hat. Um, so just it's just more of an FYI. >> Yes, ma'am. >> That doesn't include the board of
adjustment that still stays by itself. >> Yeah, that's >> correct. Although if I had my way, I would I would have this board do everything. But but currently the BOA still is a standalone separate body.
>> Any other comments? But I had a question too. Just is just to for clarification, is that the same as the sustainability >> board that they called it or in the I saw it on the agenda and I missed the the actual meeting, but it was >> Yeah, it was the same that was the
second board that went away. >> So, there's those two boards went away and now you have all of those responsibilities. >> When the last time they met, >> I'm sorry, what time >> last time they met? >> It's been at least two years. >> Really? >> Yes. I think it was when Kelsey was here
>> through whatever the meaningful meeting minutes may have been so we know what they've issued they were dealing. >> Yeah, it's it's it's going to be interesting because the staff people that handled that supported those are gone >> and so we're we're we're trying to pick
up the pieces. Um but we'll do that. We'll certainly go back and look at the minutes and and meaningful minutes and get them >> could do that. >> Yeah. Yeah. Exactly. Good question. So anyway, so that announcement is uh matter of housekeeping is is is behind
us at this point. So what we have in front of us this evening is an ordinance, a recommended ordinance. Uh this is an administratively initiated ordinance, which means staff is suggesting it. Uh we've been approached several times by several different entities uh about uh about
allowing car rental facilities. Um and we all know what those are. Um I don't I don't think we need to describe those. Um so to expand or to include um areas that would uh allow for those uses. And
while we had the uh while we had this open, I was going through some of the language where the where the or where the facilities are currently allowed. And from a public land use polic policy perspective, some of them just didn't
make sense. Um and you can see let's go through the um um let's go through the you have up on the board um and it says currently car rental facilities are allowed in RM2 is a special exception
and in CT1 as a permitted accessory use that is the and excuse me and and the and also in the professional commercial oper opportunity overlay district. So those are the only places that they're allowed currently. Um, and as far as I
know, it's been many years since we've had a new new facility, a rental facility want uh want to come into this city, but currently that's where they would be allowed if if if one approached the city. Um, and so while we had while
we were going through this process, I kind of thought, well, let's see, does that make sense from a from a land use perspective where they're currently allowed? So you can see that that it's been tweaked rather than in addition to allowing it in a new location. We've kind of paired back on where they are
allowed. And I'm going to read the the final three bullets. Deleting um car rental facilities. We've amended it by deleting multifamily site in the list of eligible locations. So those basically apartment buildings.
Does it make sense for a car rental facility to be located at a apartment building? I don't think I've ever seen one in my many years of of in this business. Um, and I don't know if that's a great use to mix in with apartments.
Um, from a traffic perspective, if nothing else um, >> pardon, >> it's commercial use and it really doesn't belong in a residential building. >> Yeah, it it just it just doesn't make sense to me. So, so that's one of the proposals is to do away do away with
that. Excuse me. The second bullet, deleting multifamily and apartment sites from the list of eligible locations for um um for this. Um and then the third bullet, adding commercial condo to the list of eligible locations.
So um we don't have that in the CT1. Corey, could you go to the C the the land the zoning map for me real quick? Okay, this is the zoning map and this this hopefully this this kind of uh sets the sets the discussion. You can see I'm
going to use my handy dandy laser laser pointer here and it doesn't show up really well on the screen, but that golden rod color right there, right here, and then down here the third location right down here. There's three areas in
the city that are zone CT1. And that's where we're talking about adding a uh currently we have it worded as adding it as a commercial adding the commercial condominium use as a as a
permitted accessory use to transient lodging which are hotels and motel um or commercial condominium. And these both have to both the the hotel motel and the commercial condominium have to be at least 50 units
or more. And we really, as far as I know, only have one commercial condo project in CT1 over 50 units. And that is the um just the name Royal Cape Royal. Thank you. Cape Royal Bing. So
that is that would be the location currently as it stands today where where it could be allowed as an accessory use. And what I mean by accessory is it has to be um subordinate the primary use. In this case the commercial condo is the
primary use and a rental facility would be secondary. Um, so in a nutshell, we're we're we're removing some of the places where you could locate rental facility just because it doesn't make a whole lot of sense. Mixing it with multifamily and res more of a
residential um use and characterized as residential and then we're adding commercial condo um which as far as I know only there's only one location in the city that meets these parameters. So anyways, any questions?
>> Yeah. Do do you think it it makes sense for the RM2 district, even I guess in the CT district, um to also have a caveat about the number of on-site parking spaces? Because, for example, I could very
easily see a rental car operation working out of Hilton, but I can't see it at the Econ Lodge. >> No, that's a good question. And I I my original draft had some more conditions that would have to be met before a a
rental facility would be allowed. And that was one of them. And and it and it was worded something such as you cannot and I'm going to paraphrase here. You cannot um based on the number of vehicle rental um parking spaces, you cannot um
go below a number required to service the primary use, if you will. So if they had say if the the a hotel was required 250 spaces and they had 255 spaces on the parking lot but they
wanted to use 30 of them for rental facility. Well that that wouldn't allow they're going below the required minimum parking off offsite or off off streetet parking requirement. So yeah so but that's that that requirement is in the off- streetet parking section. So
there's another section of code that are addressed this issue talking about now duplicated. They they still are going to be required to meet that even though it's in another section of code. >> Thank you. >> Yeah. >> Um what's the rationale behind adding uh
the commercial condominium uh piece here? We we seem to be deleting pieces, but for some reason we're adding a piece here. I'm just wondering where that's coming from. Yeah, I had a I was approached specifically at this property um to add ility because of the
because of the excess of parking. There are about 50 spaces in excess of what they're required to have. That's a massive lot if you're familiar with it. It's a massive lot. Um and I they majorly look for ways to um generate some additional income. Um and from a land use perspective, it's it's not that
dissimilar. um the commercial condo um from what from a car facility um in mind. That's why we're having this meeting to talk. Um if if the board if if the board doesn't feel like that would be appropriate, then let's you know, let's
let's talk about that. That's fine. We can and this a this ordinance exhibit with the cut out or cut strike through and underline is staff's recommendation. If the board would like to make some changes to it, we're here to talk about that. I think, oh, sorry, I just follow up on that. Me, I think the concern
would be the increased traffic. We already kind of have a bit of a traffic hub there with Publix and and uh some of the other businesses there. The increase in traffic that might come across from having a rental car company with cars going in and out.
>> Yes. Um there was in my initial draft I also limited the number that could be asked for as far as number of cars that could be you know rather than having 50 cars real facility let's limit it to 10 15 or 20 minimize the impact of the of
the secondary use. So uh um because that is an issue. Um, another thing that I initially threw was, well, these things have to on A1A. They have to be at aized intersect to address some of those same concerns that you have. Um, I peeled all
of that back. Um, and uh, if if if the board would like to put some of that back and that's fine. We do. >> Doing count as as a rental facility? Is that what they're called? What are those little little >> slingshots? Slingshot. >> Zinger. Do they count as as a rental car
facility or is that a whole different animal? >> Yeah, that that gets to some deep water. Um, Florida statute has a definition for those three-wheelers. Um, and they can basically go as where you see today is
they're they they're going as a permitted accessory use to transient lodging in the CT1. I believe there's only a few locations in the city that that those currently operate. >> Well, there's really only a few that are room for them.
>> Yes, that's another issue. So, um yeah, in CT1, they're currently allowed as an accessory use to a hotel. I'm just wondering, aren't we sort of
enabling the vacation rental market by allowing this sort of exception into oceanfront residential areas? because I know a number of people that live or they own second homes
along the ocean and I'm not sure they would at all like the idea of having uh you know a vehicle rental business in in an parking lot that they consider to be home. it would take away from the
um you know it from the residential nature of their you know homes. I 100% agree with you and that is why I've that's why I've eliminated the ability in this in these changes that's why I've eliminated
the ability for these type facilities go into apartments multifamily so I think that that would be consistent with what you're talking about the only only new place that they would be allowed to go in would be the a
commercial condo um and as far as I know there's only one location in the city So >> unless I'm misreading this, you said this was the CT1 areas that we're talking about. >> That's that's they would be allowed as accessory use to hotel
or a commercial condominium. That this new language does and actually the lang the the proposal is eliminating apartments and multif family. So we're we're we're trying we're pulling back the ability for these things to go into more of a residential setting.
Does that make sense? >> I guess. But everything I'm looking at I don't they're they're residential condos. I'm not but they're in areas that are coded CT1. >> Yeah. If
>> I mean, you know, at least like the ones near North Fourth Street, you know, I I I know for sure that those are >> homes for people. They're condos. Well, I >> So maybe I'm confused about something. >> Yeah, I my intent was to p pull the
ability to locate these things away from residential areas like in R the section 20 RM2. >> You can see that number six is being deleted. That language is being eliminated and that eliminates the opportunity for these facilities to go into a multifamily complex. So currently
it's allowed but saying is let's delete that. We don't even want them going into multifamily. And then section 2.10, the CT1, there again, we're deleting the ability to put one of these facilities
in apartment cuts or in a multif family facility. So just saying no longer can you put these things in a residential area. Um, >> hey Dave. >> Yes, >> excuse me. Might also about the number of parking spaces again. That eliminates
a lot of them as well because most condos are set up that you got two parking spaces per unit and that's it. >> So they wouldn't be able to fit them in there. >> Y >> this is probably an impossible thing to
to police. But um who who is going to make sure for example I'm just thinking about Royal Tower which you're 100% right. They have tremendous amount of parking in front, tremendous amount of parking in the back, but a lot of the parking in the back is like
like that. I mean, it's >> Oh, is it pretty rough shape back there? >> It's bad bad shape. >> I've not been back there. We can deal with that with this one. Matter of fact, tomorrow some folks there take a look at the condition of the parking lot because we have minimum maintenance and design standards that they need to meet. And
I'm sure it's done >> for drainage, >> but it doesn't negate the fact that it's like that in the back, especially on the um the south side. >> We we do that in other shopping center parking lots. Um we'll go out if it's if it gets pretty bad, we'll send them out and they'll require them to bring it up
to minimum um standards. So, we'll we'll into that tomorrow for thing. I think um I'm I'm coming back to our meeting that we had last fall where we were talking about this the first time and and I think there seemed to be a
consensus that Cape Canaveral had adequate number of rental car facilities to uh cover our area in general and I'm just I keep coming back to being sort of hesitant to us adding more of that in when I thought the discussion was that
we were sort of coming from a place saying hey we don't really see having car rental facilities beyond what we already have in the area. And I'm just I'm I'm failing to see right now how the idea of introducing that into the Cape
Roll building is going to benefit the city. That's kind of where I'm I keep coming back to. >> Isn't this this is more restrictive? So, it's not adding they already have the capability. Well, it's it's it's it's less rest it's more restrictive for the residential and it's less restrictive
for the commercial condo which is that Cape Royal building. >> Well, no, it's the same. Go ahead. >> Well, right now they don't have the ability to do that. >> Um, right now they do not. >> So, it would be the addition of the ability to be able
>> We would add that one property in and and I mean it's a it's a net it's a net reduction if you will. um we're really adding one property and and eliminating and I >> net reduction. I can tell you that. >> But yeah, I mean that that's a policy
that's a policy question that the board needs to discuss and work work through. Um, the only thing I can immediately think of is it's a con. I mean, if we have lot, as you know, we have a lot of tourists down here and if if if we're okay with having the tourists run to
Merit Island or go up to Cape Canaveral to meet to satisfy this particular need or service, that's fine. >> Mike, >> I'm not a big fan of surface parking in
general. When I was on the commission and the planning board before, we kind of went out of our way to make it attractive for people to park cars in different ways. And we built a parking lot downtown, so we didn't have a lot of little surface lots where we could have new businesses
which had a higher value and use. Um the surf, you don't drive by there and see parking cuz it's all in a structure. And as big as the uh hotel, the Weston is, they have a parking deck. Don't see it. It's
not like you just driving down our main street and just seeing surface parking drives me crazy. And as a matter of fact, the Cocoa Beach Company and Ron both front buildings on
the road rather than the parking. And I think there's value in that. The other thing from a strictly environmental standpoint, I like the parking structures cuz you control the wash off oil and grease and things that instead of going into the
end river lagoon went into interceptor and it really improved things environmentally. For all those reasons, I'm not a big fan of big parking lot. So, I think you're in the right direction. we represent citizens of Cocoa Beach and we need to be doing what
I think is in the best their best interest and um I I don't think we see a lot of this use it'd be of people and uh I I think what all just short of prohibiting them
and as I mentioned to you earlier I think the idea of actually adding it and making a special exception so that there were a hotel or business that wanted it let them come back for a lot of those other issues that you took out of here and convince us and the and the
commissioners that there's value in it and what I'm going to for me hopefully everybody is yeah right now it's it's either right now it's either handled as a permitted use so they can they don't have to come to the any boards they just
come in and get approved from the if they meet >> technical stands >> what he's talking about is let's have them do a special exception So they do have to come back to the board of adjustment. >> Compelling reason why this would an asset to the community.
>> Yes. And so that's that would be another way to to process and handle this. Um and it's it's done. It's done currently. >> That falls short of saying we're prohibiting them, >> right? >> But it puts the burden of proof on them to say this is a value to the community
and here's the reason why. >> I do want to add one more thing. When I was in Canaveral probably about six years ago, we we redid our entire permitted use table and one of the things that we did is we eliminated the use of um uh car rental facilities in
the city. All the existing ones became non-conforming um and they will be because that they'll over time they'll slowly they can't can't expand. There's a number of restrictions on non-conform uses. However, it's illegal to completely
prohibit them. So, what we did is we put them up on the industrial sections of town way on the north end of city by the port that didn't have great access. Um, so that was the way that so Canaveral has recognized a lot of the same things that Mike's talking about. These large
surface parking areas are dead zones frankly and they are uh they are do not generate adul revenue for the cities or and counties wherever they may be. So yeah, they're not ideal situations, but they do give property owners an interim
use as you prior to redeveloping a property or something. So anyways, I just wanted to throw that out. >> And I have I had a couple questions. Um, I noticed that you the recommendation is to change the language from 50 or more
dwelling or rent units to commercial condo. >> Mhm. >> And is commercial condo defined anywhere like in section 120? Like I think it's not 100% clear that was intentional I guess rename it. So >> just want to make sure what that means
to change the terms. >> Yeah, that's a term that the property appraisers office uses. Mhm. >> Um, so I don't have a definition for purposes of, you know, what the how the property appraiser defines that. Um,
>> yeah, I don't know if it's used anywhere else in our code. So, I I was thinking we would, if we're going to stick with that, maybe add it to the >> define it >> definition section 120. >> We can certainly do that >> and make sure that's clear. And again, I'm not sure what the difference is
intended between dwelling other than just being consistent with, you know, the appraisers use. >> Right. So, help me out if we want to go the direction I was suggesting. Can we just change the third point under the existing CT district instead of saying
it's a permitted except accessory use say it's a special exception X-ray use and saying down the third point down below. >> Yeah. cross out permitted and say special exception. >> Well, we can't we can't eliminate paragraph D. I think on paragraph E
under CT1, there's that's where the special exceptions are listed. So, what we would do is we would pull it out of paragraph D and stick it into paragraph E. >> Okay. >> Um and I sometimes I'm comfortable with kind of going on the fly and making changes to
ordinance, but I don't think there's any huge rush. >> Okay. So can if we could gather all of the input from the board, I think what we could if if the board decides this is something you want to move forward with, we could bring it back at to the next form a motion that would task you with
coming back with something that reflects having these special exceptions accessory uses >> a second. >> Yeah. >> Well, I I don't know if we're done with Yes. >> Oh, sorry. Discussion. No, that's good. Okay, we
have this we have a motion. I just had a couple more things. Um the the addition of the references to the sections. So in E's reference section 443 and let's see
7A or will be 6A. >> Mhm. >> Um the sections reference 120 and 265. Are those just cleanup or I didn't see anything like different or that changes by referencing. Is that just a clean up?
>> Those don't change. >> Okay. >> Those those are just hyperlinks to other sections of the code that would that would >> but they in there before >> they were those are existing that's existing language in the code. >> Okay. I was showing up on the text as a chain because it's underlined and different.
>> That shouldn't be then. I'm sorry. >> Okay. I just wanted to >> Yeah, I think that underline under the the section 4-43 and 120 hyperlink. >> It's a link. Okay. >> Yeah, got it. Thanks. >> Good question though. >> Um >> I didn't even think about that.
>> And I like I mean I really I do like the fact that you're taking it out of the residential. That really doesn't probably never made sense. Nobody would use it. And I do think it's good to allow it and it's almost somewhat self-limiting on in most places
depending on the parking and what's there and it is dead wasted space. So I I I can see why a business might want to have an opportunity or some flexibility >> to put something there if they could, you know, >> and and I will say let's not get caught
in the trap of thinking Avis and Herz budget. There's also I'll call it a boutique car rental facilities that will that will rent like exotic cars or things like that. I know we had one in Canaveral go up um almost before you get
to the on the lefth hand side. Um but um um >> and Cape Royal has a traffic light right there. >> They do have a traffic light that section has to >> that has to be I mean is that one of the things that was in there? It's not. >> Oh, okay. So, >> I thought you said it was in the other
parking section that >> not the tra not the reference to the traffic light. >> It just so happens this one particular request was >> Yeah. And and as you know, as as staff, I was trying to the impact of this these changes. So what I was doing is I was
coming up with criteria that really let's say you start out with 100 pieces of property that are eligible for this this new new language is you add conditions and criteria has to be five acres at least and it has to be on a A1A. It has to be has to be on a
signalized intersection. It has you know you start reducing the number of potent sites for these things to occur at. And um the the the 50 unit the 50unit condominium really there's only there's only one. That's why I peeled back all
of those other requirements. I thought that was going to really restrict it just to one. >> Technically the fact that all that parking is there at one point was probably approved to have that many cars coming and going out of there anyway. >> Oh yeah. >> So it's not really a change other than the fact that we're not used to having
it any traffic because it's an empty most empty or a lot of empty now. Yeah, theoretically at one point the traffic network was all of that that impact traffic impact was kind of um baked into the baked into the oval.
>> Yeah. >> The cable has two entrances though, doesn't it? Has one that it has to a light and then the other one goes straight out onto A1A >> further north. Yeah. >> Right. >> Is that right turn only? >> Pardon? >> Right turn only. >> I don't know if it's right right in right. >> Go both.
>> I don't know. I think it I think it would be very helpful at least I know it would be to me if the next time we review this the parking full scope of things. >> Okay, we can do that. >> Yeah. What would be the formula for the
size of such a facility? you know, >> well, right now there is no the formula kind of backing into a formula is it would be the excess parking on a particular piece of property. And
so it's going to really be case by case and that may lend itself towards what Microsoft at the special exception process because that would be one of the things that would the board could or the board of adjustment could look at when they're when they're uh considering the special exception request.
But I so I so I can help me come up with some new language. Is it the consensus of the board that you would like the any requests for these facilities to go through the special exception process? >> I know I've got we've got a motion in a
second on that issue. >> Yeah, I I would be okay with that. >> Okay. >> I'm concerned about the traffic in that area. We're seeing heightened traffic definitely during the the the winter season and now introducing,
you know, however many cars that would end up being into that situation, especially for that other entrance that comes that doesn't have a light. I'm just concerned about the the amount of traffic that you're going to see coming in and out of there. >> Doesn't that also serve as like the
condo back there? >> The side road does. >> Yeah, I hope so. on the south side of the property >> on the actually it' be on the north side right when you come out when you come out the north entrance to um the building which is the non-traffic light
entrance >> right right >> that doesn't that meet the road coming back from the con coming out from the condo also in other words that is not just I'm almost positive it also that >> you think it serves a dish another property at least another property
>> yeah I think it serves a a condo back there >> that northern that northern driveway way. >> Yeah, I think so. >> I know the Southern Road services the condo in the back. >> There's another one. There's another one. >> I know what you're talking about. >> Does it require a change like this?
Would it require notifying the residents that are nearby? I can't remember what that >> you would >> if if it went to a special exception. That's the process you follow. would probably be a good thing that >> that would require mail out notice to 500 ft 300 ft 300 feet. So yeah, all the
condo owners would get notified. And can people could could they I don't know what the restrictions or allowances are for converting part of a parking lot that's maybe not used fully used to make it beach parking like you know like
during I don't know like um some places have taken the parking lots and hours that they're not in use for the >> business quite a few quite a few can that I mean they could is that allowable at places so theoretic ically they could
fill the lot with cars if they wanted to go that route. >> Yeah, they could. That's it's it's that's really the marketing. I'm just saying I'm not sure we're making it any I don't know that this makes it worse as far as the the way the traffic and cars
could be. >> It's the same thing with the Hilton. >> Exactly. >> Same situation. >> Yes. It's it's already potential for having other cars in there. Theoretically, they could have they could fill up that parking lot today. Yes. With with with the with all the
condo units in there. So, you know, yeah. >> So, I do think it's a good idea to go through the special exception. I mean, me personally, okay, >> to kind of get that extra step.
>> You raised a point a minute ago which I think we ought to consider as well. This is an industry in transition. There's now a company where you can go online and it's kind of like an Airbnb. You can rent somebody's car who maybe lives in
Satellite Beach and the ticket to a site. You can pick the car you want, what the price will be and everything. It just has to be a pickup point for it. And that would have less impact than having a lot of car stored there if it was just a pick a point for
essentially what's this uh online uh >> I've used that facility traveling >> I have as well >> have Turo is one of them >> I couldn't think of the name that's >> there's a few of them >> is there any restriction I mean if if if
something like that were allowed because I' I've seen you know car rental places that are well they're covered and you know if you go through Cape Canaveral um you know you'll pass by a fence and
there's a bunch of cars behind it and all that and just kind of looks commercial. >> Yeah. >> Um but it's kind of like once you make an exception are they are they limited by how they can set it up what it looks
like that kind of >> Yeah. Yeah, I mean that that would be you could add some aesthetic criteria to the ordinance. Right now there's nothing in there, but you could add aesthetic criteria that that they would have to meet and that as part of the special
exception process that would be something that could be discussed and agreed upon between the applicant and the and in this case board of adjustment. Um, yeah. >> Are there any other comments? I guess we have a motion on the floor.
>> Could Could you restate the motion one more time, please? >> Uh, the weird request that staff modify the proposal I have now to add a special exception. >> Yeah. In the appropriate way. That's I
guess we'd leave it up to you guys. however it can be awarded >> and about allowing it into the CT1 in the commercial condo space. Is that >> is that a concern of the >> I have I don't know if everybody else
feels the same about that. >> I Yeah, that's an important point. >> Yeah. Right. >> So, if if I'd like to get some feedback from the board on that. >> There's only one commercial condo. Is that the one on on um Ocean Boulevard? >> It's the one they've been talking about. Cape um
>> Cape Royal. Cape Royal. >> Oh, Cape Royal. The And the one the one down there is not a commercial contract. Yeah. >> Okay. >> Because it has to be over 50 units as well, right? >> That's currently worded. >> We had a motion in a second. We wanted
to vote on it for bring it back for >> and it would come back with >> to be as a special exception. >> Yeah, I'd make that one motion then make his concern a second motion. I'll have another question. Uh I mean is
is there any sort of c allowable cap total for the city? >> The if if the board would like to add that as as a criteria then yes you can we can do that right now. I don't have it because it's really going to be a function of available parking. it'll
kind of self earn itself. But um um if that's something the board would like to add, that's that's within your purview. >> I do think it would be good to phrase it so it's not just rental, but maybe these drop off, whatever that's called. I'm not definition or the terminology thing.
Just rentals >> and um >> that might get tricky just because they're it's private renters I think on those apps. So, it's it might be some liability things going on there. I I don't know. But >> it's we can >> we can draft a broad definition to get
those new um services. >> Internet provider. Yes, exactly. >> Whatever they call that >> and then again to maybe add the or look into the commercial condo definition. Yes. Make sure that people know what what we're referring to. >> That's a good point. Thank you. We'll
we'll include that. We'll amend the ordinance to include a definition for commercial condo. Okay. >> Got a motion on the floor. >> Motion. We have a second. >> Uh, a second. >> Yeah. >> Okay. All in favor? >> I >> I
>> opposed. No. Or to bring it back. >> Special exception. >> And to bring it back. >> Yeah, that's it has to come back. >> That's assumed. >> Yeah. >> Okay. >> All right. >> Okay. Very good. >> Yeah. Thank you. I I appreciate everybody's thoughts and and
suggestions. You thought this one were easy, huh? >> When is it ever easy? When's what's easy? >> Yeah, exactly. So, I am riding an old Harley-Davidson >> this this evening and I need to get home before it gets dark cuz those things are
notoriously horrible. Not like these fancy bikes this guy rides. >> Be safe. >> Thank you. Thank you everybody. I really appreciate your comments. >> Drive safe. >> See you, David. Thanks. Um, we did move public comment forward, but there's no public comment, so we'll
just go right into the training. >> Yeah, Cory handed me the Can we get it pulled up maybe? >> Yeah, I anticipated you all would breeze through the uh proposed ordinance. I'm like, oh, this might be a nice meeting to have some training, but you guys went a little longer than I thought. So, I
will try to make it um brief here. I know most of you have received this training before. Um but obviously you all are not required to go through the full 4hour ethics training that our uh city commissioners are. Um however the
uh rules for the board that the board um passed back in 2021 which we'll have to update now that the board has new duties does mandate that uh the board does have to go through periodic training. Um I break up my trainings into two separate powerpoints. I think they're really uh quick and fun, informative. Um it's
they're not designed to give you all every bit of knowledge that you need uh you know to um go through all these issues but it will give you enough of a reminder to help you issue spot so that if something happens in real life you can go oh yeah I remember when the attorney something about this I'm not
going to talk to this person or oh I remember about conflicts of interest I'm going to give the attorney a call 5 days before the meeting instead of 5 minutes before the meeting so we can make sure we have a quorum to hear you know what's coming before the board. So, uh, with that in mind, if there's any questions during the meeting, just shout at me.
Uh, no need to wait. Um, there are some hypos in here that I like, uh, for people to, uh, you know, uh, join in with me on. Uh, so just if you see an issue, when you spot it, just go ahead and shout it out and we'll get through this pretty quickly. And Corey, I don't
know why. Oh, there we go. Very good. So, this first um, PowerPoint cover three brief uh, you know, points. Uh we go over the sunshine law first. Uh next we'll go over uh public records law and Florida statutes. And then we'll talk very briefly about voting conflicts
which I think for you all since you guys are uh superstars with the first two points we'll focus mainly on voting conflicts because that does tend to come up time to time. So what is the Florida sunshine law? Right? We we talk about the sunshine law all the time. What are the actual legal
provisions? Well, what is it intending to do? to provide access to the public to governmental meetings, right? We don't want meetings like this where decisions are being made by public bodies to be behind closed doors. Folks, uh, according to the Florida legislature have the right to know what their public
uh, uh, elected and appointed officials are doing, right, when they are conducting business for the city. It appi applies to elected and appointed boards. So, it applies to you all as well. And uh sort of the black letter law that I like to uh tell people to try to remember whether or not board
meetings open to the sunshine or not. All meetings which official acts are taken or public business is transacted or discussed shall be open and notice to the public. Again, this is where folks get into some trouble because a lot of times we hear about folks who get um uh you know an
article on the front page of the paper because oh they violated the sunshine law. Well, why did they violate the sunshine law? Well, they had a meeting between two or more members of the same board at a location that wasn't open or noticed to the public, right? They're having some backroom deal down at a at a
club somewhere or oh, there's an email chain between uh two or more board members discussing how they're going to vote on an item before it comes before the border commission, right? The law says those email conversations, those text conversations, those conversations at Publix, those are meetings under the
law. So you have to have them here at a location uh where we have uh the meeting noticed to the public. The only other um go back. The only other uh small thing
I'll point out to you all is that we take it's a legal requirement to take minutes of all the meetings. That's why it's so important that you all review the minutes and approve them. Uh we want to make sure that we're keeping accurate minutes of all of the meetings and those um have to be open for public inspection. Uh again, advisory boards such as the
planning board um is uh covered by the sunshine law. Uh even if you're making non-binding recommendations to uh the elected board, the city commission. All right, our first hypo. Uh Mary and Jim are members of a planning and zoning board in a small Florida town. One
morning, Mary tells her neighbor Sue, who happens to be the town planner, that she is not going to vote to approve a petition to reszone a coastal property at the upcoming meeting. Mary then asks Sue to let other board members know of her disapproval and her intent to vote
no. Later that day, Jim calls Sue, the planner, to ask about the process for resonings in the town's coastal areas. Sue tells Jim, "It's not looking good for that one reason. Mary said she would never vote for it. What are the issues?
>> Thank god it was Mary in that court. >> What are the issues? >> Mary should never have asked Sue to tell other board members what she was thinking and and she should have never even told Sue what she was thinking. >> That's that's exactly right. But but what if someone says, "Well, Sue is not
a member of the board. The Sunshine Law only applies to two or more members of the same board." What's your retort? I think I don't I don't I think it's pretty clear that Sue is an employee of the of the municipality
and should be treated like another and especially in she's a planning department employee especially a planning department employee she should be treated just like it was a member of the planning board. >> That's exactly right. and and we get that from actually uh case law and from
floor statutes that prohibits board members from using non board members as liaons to communicate between each other. Uh and that's because that would frustrate the whole purpose behind the sunshine law in the first place. Why have a law and why enforce a law that requires these decisions to be made at
at meetings if uh we're just going to allow folks to uh you know um launder their discussions through a third party. That's exactly right. So, um the same thing, uh happens and sometimes, you know, folks will try to get around this, but um we really got to um make sure we
don't uh try to do it, but oh, how's the board feeling on this one, Matt? I don't know. Do you think we got the votes for the, you know, for the reason on on Monday? Those sorts of comments u can be taken in in the wrong way. And certainly um you know as the the Florida Attorney
General has made clear this week um these are the sorts of things that his office is going to be looking at uh more closely moving forward uh with public entities. >> Isn't it true that you can express your opinion publicly? You just can't have conversation with another board member.
>> Yeah. >> The one by the apple is what uh Becca used to call it. >> Yeah, that's precisely right. So um we get this question all the time. Hey, I want to post on my campaign, my Facebook page, or I want to um you know, I'm talking to my neighbor and I want to let them know how I feel about this issue.
You know, if they happen to talk to someone else about this who might be on the board, am I going to get in trouble? And the answer is no. Right? And that's really grounded in the fact that elected and appointed officials have to be responsive to the people they represent. So, you're allowed to have conversations
with folks about what you feel about a particular issue. we just want to make sure that it's not with the intent of communicating that to another board member. So, great point. Um, meetings, uh, this is an often
overlooked uh, part of this, but and hopefully we don't have any, uh, hot issues, uh, this year where this becomes an issue, but, uh, we have to make sure that our meetings are in locations that are accessible to the public. Well, we're in one now, right? Has to be of adequate size. It certainly is tonight.
and we can't discriminate or restrict access to the public on any other basis. Um, uh, this comes up a lot. Uh, I saw actually a YouTube video from a first amendment auditor recently where he was denied access to a public meeting in another jurisdiction, another state, but they said, you know, you have to sign
into the meeting to get into the meeting, right? You got to put your name and address down to attend at the public meeting. Well, that's prohibited, right? we can't require people to do that as a condition of them participating in in a public meeting. So, that's sort of the
thing um that we're talking about. Or we can't say, "Oh, you know, you're not a resident of the city of Cocoa Beach. You can't come into our meetings. Oh, you're a member of the news media. You're not allowed in here." Those are the sorts of um conditions that the city cannot um
put up to prohibit folks from participating in public meetings. Um you all have um adopted or prior boards before you have adopted reasonable rules for the orderly conduct of meetings. We have an agenda. We have a process. We um adhere to parliamentary
procedure. Um public comments limited to 3 minutes. Things like that. Um Florida losses, all of that is okay. Um and uh another note um and hopefully we don't again hopefully we don't have any uh thing that uh brings in the news cameras
but um the board cannot or the city cannot ban non-disruptive videotaping, tape recording or photography at public meetings. So sometimes meetings I'm at there's someone with a nice camera walking around taking very nice pictures of everyone. We can't prohibit that as long as it's not disruptive to the
meeting. Uh right to public comment. um uh might need to update this because it's not a newer section of uh Florida statutes, but um it's just now there's a statutory right to um be given a reasonable opportunity to be heard on a proposition
before a board or commission, which just means that now every board has a public comment period during their meetings. And for the purposes of this board, we don't really have to say whether it's before or after an item. Um but it is okay that our public comment um our
general public comment comes after the item because um usually all of everything that comes before this board is a public hearing. So public comments allowed as a part of the process anyways for reasonzonings, things like that. >> Who sets the 3minut limit?
>> Uh that's a rule that has been adopted by the city. Um this board could amend it. You can make it five minutes. You can make it 10 minutes. Of course, you might have an issue um that does in fact fill up the room and if everyone has 10 minutes to speak and they're filibustering, you know, we're not going
to get out of here till 1 in the morning. Um which I've been in a couple planning board meetings in other cities that have gone to 1 in the morning. Um not because of that, but you know, people like to uh get their get uh out of their head what they're what they're thinking. Um, one of the ways to just
get in front of that is a lot of times if there's a group that comes and they all have the same issue in mind that they want to talk about, they can designate a leader and you know maybe the the board will say we'll give you 15 minutes to flesh out you know your group's arguments right against this or
for this proposal and that's completely fine too. Um, and just to clarify, again, it doesn't really happen for this board because um, most of what you do, there's a public hearing attached to it. Um, but the opportunity to be heard doesn't really need to happen at the same border
commission meeting. It can happen after or can happen after decisions been made. Um, uh, the county, for instance, um, their meetings are very long. They have a lot of agenda items. They have multiple public comment periods throughout the meeting and it's on a first come, first- serve basis. So, they
might have gone by your item by the time you get an opportunity to address the board, but that's okay. That's completely fine. Uh, we just talked about this uh penalties. Don't commit a a Sunshine Law violation. Don't talk to another member of the board about business that's
reasonably likely to come before your board. Um, I would say to you all, don't talk about any planning, zoning related items. uh it's probably easier for you all not to talk about specific items because you don't know that they're coming until an agenda anyways and then
it's pretty clear you're not supposed to talk about it. But uh just keep that in mind. Um and it is a um there's a if you do it unintentionally it can be a noncriminal infraction. If you do it intentionally it is a crime and people do go to jail for sunshine law
violations. So keep that in mind. But you all are a great group, so I I don't have to go through this too much. One of the um one of the legal effects of there being a Sunshine Law violation is that whatever the um action was um that was the result
of a Sunshine Law violation is void abonisio as opposed to voidable. You don't have to go to court to undo the reasoning that was procured through a sunshine sunshine law violation. It is automatically void. have an issue and the legislature did that so that no one
gets the bright idea to do it because in the end it's not going to matter anyways, right? We're just going to void whatever decision was made. That was a very quick run through. I'm sure for a lot of you that was um just a a brief reminder of the sunshine law.
Just remember um all meetings have to be open and notice the public. Email communications, text communications, those are meetings, right? If you're talking about board business. So, we want to make sure we don't do that. It only applies to you and another board member, two or more board members. You
can talk to staff. You can talk to me anytime you like. Don't use us as a as a to launder your ideas to other uh folks uh cuz we won't let you. Um we'll remind you of this uh of this um recording. And
um it is something that I think the uh the current attorney general, state attorney general has uh made very publicly clear that um they were looking into a lot of sort of public corruption and things like that in local governments and this is something I think they're going to key on. Um and I
actually heard on NPR this morning that they're going to start enforcing these sorts of statutes. Uh or that's their plan rather. So um just keep that in your mind. Public records law. This is important because everything um because Florida has probably uh the
strictest public records laws in the whole country. Uh provides right of access to records and state local government officials as well as private entities acting on their behalf. That means all the emails I get from Corey or from you all or from citizens about Cocoa Beach business, city attorney business, those emails are all public
records. All the text messages I get, those are all public records. Um, and it's embedded actually in the Florida Constitution, which is um, unique. Um, so the only the thing you need to know about that is that the only exceptions to um, the public records
laws in chapter 119 are those established by law or those established in the constitution. So what does that mean? Or before we do that, let's define what a public record is. You can see here um, it's just about anything. Um,
and the important part here is this last clause. Made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Um, that's a mouthful. So, we sort of break it down a little bit. Uh, in the Supreme Court did as well, the
Florida Supreme Court, it's really just any material made or received by an agency in connection with official business which are used to perpetuate, communicate, or formalize knowledge. Doesn't matter if it's in its final form, if it's a draft one, draft two,
draft three. Uh they're all public records unless of course there is an exemption that applies. Notably, and this question comes up a lot, there is no exemption for Garrett. This would be really embarrassing if I had to produce this.
Sorry, bud. No exception there. Okay. Um this is the main question I get from my planning boards uh that I cover. Um, emails uh do count as public records if they're received by public officers or employees in connection with official
business. Um, and so the question I get all the time is, you know, hey Garrett, my neighbor knows that I'm on the planning board and uh she texted me um about this item that's coming before the board at the next meeting. Is that text
a public record? And I tell folks, you know, to be on the safe side, yeah, it probably is a public record. So, what does that mean? Well, you're in possession of it. It's on your phone, right? And you have the responsibility as an office holder in the city of Cocoa
Beach to be the custodian of that record until you shift that burden to someone else. And I love burden shifting. I hate holding records. I don't want to do it, right? Because then when people need them, I don't want to have to dig through my phone to find them. And then I can't find it. and then we got problems, which hasn't happened because
what I do is I take a screenshot of those things, right? Or if someone, god forbid, sent something to my personal email, if they ever found it, um, well, it would be forwarded to my work email. And then I'd forward it on uh to the city. I'd say, "Hey, Corey, I got this
text about our upcoming meeting. Can you make sure uh the clerk gets it?" Now, you are no longer the custodian of that record. You've pushed that burden off onto the city where it belongs. All right. Um, >> if any email came from Mike, Corey, or
you to the board and there were replies or questions or something, would that be your record to keep >> there? Yeah, >> it was all >> I sent it to you. If you send anything back to me, you would >> Yeah. And the city retains all that anyways. the
>> the issue would be is if um you know you had another string that was from um you know some group that tried to reach out to you or something like that. It it mainly comes up with text messages. Um, and that's where it gets most folks. Uh,
particularly, and I don't know if I've had this conversation with all of you, but it is my strong preference and, um, my recommendation that nobody use their cell phone during meetings, uh, particularly to text during meetings. Um, because you might be in the middle of a resone and your phone goes buzz
buzz and everyone hears it in the audience and you look down and you're typing away, well, who are you communicating with? What are you communicating? What got sent to you? Does this have to do with the meeting? Right. And uh we'll learn here in a minute that in providing public records
um what the law says and I'll read it. Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so at any reasonable time under reasonable conditions and under supervision of the custodian of public records or the custodian's designate. Um
so in that hypothetical, someone texts you. It's probably your spouse or maybe your neighbor asking you when you're going to get down to Fourth Street for the game or whatever. And and so you're you're texting them back, oh, this meeting will be over in 10 minutes. Well, if the attorney for an applicant comes up after the meeting, maybe it's
an adverse decision, and they bang on the dice. I want to see that text. I want to see what you said. Well, do you have to allow them to inspect a public record or a potential public record? What if you were texting about
the meeting? Oh, this meeting uh really stinks. I hate it. This applicant is a real jerk, right? And then, well, that's certainly a communication made or received in connection with official business because you're communicating knowledge, right? That you gain through the meeting. And well, certainly you
should allow them to inspect it because that's required under Florida law, right? They're a person desiring to do so. You're right there. Your phone's right there. They're right in front of you. It's reasonable time for them to uh request to see it. And you know, if the attorney's in the room, certainly the
attorney can review it to see if it's a public record. Um the time to allow inspection is then um and that's happened before, not to me, but to a um our managing partner Wadevos um at a meeting where someone sent something that was inappropriate and it was um
embarrassing, but there's no exception for that, right? So I like to tell people, you know, um not to mess around with creating public records. That's what we want to avoid. Phone calls are not public records. So, you know, if you have something to say or a question to ask and you don't really want a paper trail or you don't want to have to
explain your question or whatever, um, you know, call Corey, call the team, call our office, right? So, >> just a quick question. So, any notes we take during a meeting, if if you're jotting down a thought on something that's being talked about or or you're trying to get clarification, that's a
that's a public record. >> So, it depends. Um, and I don't usually I should include the notes slide here because this question does come up um quite a bit. Um, what we're looking for is any document or for your purposes
here. Any document that and it's up on the slide here that perpetuates, communicates, or formalizes knowledge. So, brief notes to yourself that you take down during a meeting to remind you to ask a question or something like that, those are not going to be public records. um or that portion of it won't
be a public record. Um what I recommend folks do is like bring a blank notepad with you and jot your notes down there because if you come to s, you know, city hall and you pick up a paper agenda and you start jotting notes down on the agenda, someone may say, "Oh, well, I'm I'm entitled to see the whole record."
Because it is a public record. You picked it up from the city. That's the definition of a public record, right? Um well, no, not the notes part, you know, and then we argue about it. But but yeah, just bring like a little blank notepad and and jot your notes down. Um the caveat to that is if you write some
notes down to yourself and then you tap Mike's shoulder during the meeting and you point to your notepad, what are you doing at that point? You're communicating knowledge. So at that point, that record goes from being uh just some notes to a public record. And
again, you now possess a public record that's nowhere else because you just wrote it down. Now, you got to rip it out. You got to scan it and you got to send it to the city. That's what the law says. Um, usually with my little notes that I jot down, I don't show them to anyone. When the meeting's over, I close
up my notepad. I never have anything on the top sheet of my notepad. And then no one sees what I wrote down. It's not a public record. I go home. I throw it away. Um, so that's something to keep in mind. Um, you know, keep your notes to yourself kind of thing.
Voting conflicts. Um this is the number one question I get from my um from my lower boards, my planning boards, board of adjustments. Uh we get voting conflicts in section 112.3143. It applies to public officers in a
collegial body. That is you. Um what is a voting conflict? I'll go through this very quickly uh because I know many of you know it already. Uh local elected or appointed officers may not vote on any measure which would enure to your private ga special private
gain or loss or any measure which you know would endure to the special private gain or loss of those four categories. A principal, a parent organization or a subsidiary of a corporate principal by which you're retained, a relative or a
business associate. Uh this is pretty self-explanatory. Who's a principal? an employer, uh, a client of a legal accounting, insurance, or other professional practice, a corporation for which, uh, an officer serves as a compensated director. So, if you were an attorney and you had a
client who had, uh, a matter of business before the board that you know would endure to their special private gain or loss, man, they're going to make a lot of money if they can resone this property and sell it. Well, you'd have a conflict, right? Um same thing if it's your employer
uh if it's your relative. The definition of relative for the voting conflict is much smaller than the def uh the definition for other um ethics laws like the anti-epotism law. Interestingly um here it only applies to those uh folks business associate again and you guys
will get these slides um after the meeting. So if you want to review them and ask questions or uh keep them on for uh issue spotting, of course you can. Um key question if you want to know if you have a a conflict with the business associate, are they engaging in a common commercial or entrepreneurial pursuit?
And is the uh the relationship current ongoing business relationship? Uh this is what I like to focus on and this is usually where most of the analysis comes from. uh when you call me and ask if you have a a conflict, it's you've already identified that, hey, I
know this person really well or they're a relative or I do business with them or they're a client of mine. Do I have to recuse myself? Uh and the answer is, well, what is your client going to gain if they get this um approved or
disapproved? Right? Because if they don't get their reason, well, they might lose out on an investment opportunity, right? Um does the voting conflict does not apply to all situations that might result in a gain or loss. It has to be special. What do we mean? Requires an
economic benefit or harm that will enure the officer, his or her relative, business associate, or principal. So what do we look at when we try to determine whether or not the gain or loss is special? Well, how many people are affected? Right? You can't have a special gain or loss if everyone's
winning or everyone's losing, right? Um, what is the relative benefit or harm when compared to other members of the affected class? Um, is the gain or loss remote or speculative? Uh, that's less likely here when we're dealing with lanes issues. Is this merely a
preliminary or procedural measure? uh in there I'll just say um you know if you recuse yourself or you have a voting conflict and you can't vote on an item uh at the next meeting when um the chair calls for an approval of the minutes you can absolutely vote to approve the minutes uh because that is you're not
having anything to do with the measure it's just a procedural matter of approving minutes from the prior meeting right so the main thing we look at is what is the size of the affected class and for the planning board this is real easy
because you all consider two types of of uh things uh really that come before you. Legislative matters and we'll talk about this in a minute more. Legislative matters which is where you are creating new law and quasi judicial matters where you're applying a set of facts to
existing law. Right? What you all did tonight was legislative. Right? David came and said, "Hey, I need your input on uh this language here for this ordinance. Uh well, let's talk about what the law should be, right? We're not talking about how it's going to affect anyone in particular really. It's just
more, you know, how are we going to legislate um with this particular issue. Compare that to an application for a reasonzoning. Well, the we know what the law for a reason is, right? We know the criteria that has to be considered. We're applying whatever the applicant
brings us to the law, right? That's quasi judicial. We're really only affecting the applicant. and maybe a small group of folks around the applicant. So, um on most legislative items, you will never have a conflict. Um unless it's, you know, the
legislation's very narrowly targeted to one or two um properties in the city. Um again, the larger the class, the smaller the chance of the special gain. The smaller class, the larger the chance of special gain.
So, if you do have a voting conflict, um, hey Garrett, I have a client that's coming before us. Uh, they have a piece of, um, agricultural land that they want to do, you know, uh, get a reason to heavy industrial. They're going to make, uh, a great deal of money developing this property. Um, you know, what should
I do? Do I need to abstain from voting? Yes, you do. So, what do you do? The first thing you do is you abstain from voting. You don't vote. You disclose the conflict orally prior to the vote and you file what's called a form 8b within 15 days. It's a onepage form from the
Florida Department of Ethics. We'll provide it to you. Um what happens at the next meeting, it gets uh included into the minutes and uh accepted by the city and it'll be on the record essentially just so folks know about it
and so that uh we comply with state law. So what happens if there's a conflict of interest and you can't have a quorum? Say you've taken a vote, then then what happens? How how's that handled? >> Yeah, the the item would have to be continued until we do have a quorum. So
that's why I was saying before uh it's really important that when you do get a copy of your agenda uh you know you review it just to see who it you know concerns and then if you think even if you think there might be a conflict you know you're pretty sure there's not but hey let me call the attorney just to
make sure and we can go through the analysis and usually about a minute or two uh and then I can get on the horn with Corey and say hey Corey I think we got someone who's conflicted out please make sure we have a quorum before we bring everyone down to city hall uh and I live down the road so it's not a big
deal but uh sometimes I drive many hours to get to places and >> special gain is the real important issue there because in 10 years of service here we always ask disclose things as the
attorney should I recuse myself in 10 years nobody ever recused themselves it >> and it would have to be a really special gain >> yeah and it would have to be someone that falls falls into one of those four categories, right? Usually, it's uh you know, a family member.
>> If your house is in an area that you made a decision in terms of zoning that might benefit benefit so many people, it's not special to you, then it's that's not a conflict. >> Certainly. Yeah. And um usually the best example I give is if someone if someone
on the border commission owns a pre a piece of property that's neighboring to the property um where there's uh going to be a large increase in the use of the property or something like that or or maybe um you know there's going to be uh you know not a speculative but you know
the you know more or less how it's going to affect your property values. I think all of you are pretty savvy enough to understand that that's a situation where you'd have to recuse yourself. Um, doesn't happen too often a lot of properties around town. So, uh, it doesn't happen too often, but you know, a quick call to the attorney, uh,
certainly does help. And I like talking to folks, so, you know, we'll get to chat for a little bit. >> So, I know you have to abstain from voting and disclose prior to the discussion, but can you participate in the discussion or you should not do either? >> That's a good question. So, so we
recommend um that that appointed officers first they have to publicly disclose their conflict before participating in discussion on the matter. You can participate in discussion. Um you know that's up to you. Uh recommend perhaps maybe you
don't uh because that might invite some argument uh from u the applicant. uh that is opposed to like a county commission. You know, they can uh they can have their brother with a big uh come before the commission with a big waste management contract where their
family member is going to make millions of dollars and they can spend the whole meeting talking about how great this contract is and then right before the vote, oh, and by the way, this is, you know, the applicant or the the contracts with my brother's company and then they vote. You won't have to disclose it before you even say a word on the item.
So that's why we disclose conflicts at the top of the meeting, right? >> Do do you uh in the disclosure of the conflict, are you just disclosing the fact that you have a conflict or do you disclose the nature of the conflict? >> Uh yeah, you can disclose um the nature
of the conflict if you like. Uh I'm conflicted out on this because you know it's my employer who's coming before the board. Okay. Right. And I've discussed with the attorney uh that it's appropriate for me to recuse myself. you know, for this I'm going to choose to step away from the dis just so I don't, you know, I want to be impartial, right?
That's what most people would do. Now, of course, you could stay up there if you'd like. Um, but uh that's up to each board member. Yeah, I was um on the board of adjustments one time and someone had to um recuse themselves
but were allowed to throw in the opinion and the way I looked at it was since they had influence you know they were still allowed to put that opinion out there thinking which I
think swayed you know swayed the board. Yeah, it's it's it's permitted, but you know, everyone knows of course about the conflict before they say anything on the matter. Um, which is which is why the statute requires it. Um, it's a little
less uh prohibitive with um elected officials, but um it's just what we have to deal with you guys. Uh let's see here. So, um what if you just don't want to vote on something because it's a sticky political issue? Well, not so
fast. Um, section 286.012 requires members of a collegial body, that's you, to vote when present at a meeting and prohibits abstaining except when, quote, there is or appears to be a possible conflict of interest. Um, so what we want to make sure is that you
all were appointed for a reason. You know, you represent uh the people of the city. You know, your viewpoint is important. So, you ought to vote on matters that come before the commission. Unless you have a conflict, you have the option of abstaining um in the event
there is or appears to be a possible conflict of interest. So, uh maybe you're not conflicted out by law, but it's so so so very close that even participating in uh the decision, nevertheless voting on it would perhaps
reflect poorly on the decision or on you or you know, whatever. Um, we can always talk about that before the meeting, but we generally tell folks that they should they should vote. >> But you can have discussions where you're getting information was not uncommon. If
you had a major project that came before either the planning board or the commission, you might be contacted by the applicant's attorney and even him and gain information about the project as long as you didn't discuss it with somebody else. And that was
>> I always disclosed that I had done that way. >> So So that so that's a a great a great point to bring up because we're going to talk about that in a second because it came up with uh the board of adjustment >> and that's what really spurred me to say, "Hey Cory, we need to have some some training." Um having a voting
conflict is different than having an exparte communication with an applicant. Um a voting conflict is um just a a matter of fact, right? you have a relative or employer or business associate who has a special private gain or loss that is attributable to the
matter before you. If so, you're out, right? You can't you can't you got to orally disclose it. You got to sign the form um before you leave. We put it on the the next uh agenda for the next meeting, right? That's all by operational law. Exparte disclosures,
you know, we really shouldn't have them. We'll talk about this right now. Um really shouldn't have them. And if you do have them, Yeah, actually can I I can do it from here maybe. >> Yeah, look at that. Boom.
>> Government effic government government efficiency. So, um we really shouldn't have exparte communications and we'll talk about why in a moment, but those are distinct. You know, you can't have a voting conflict as a result of an exparte
communication. That makes sense. You have to have a special private gain or loss to have a voting conflict. A >> lot of times we vote and things and there were five people and they all said same thing. I've visited the site. I've met with the attorney and the applicant and I've not shared that information
with anybody else >> and all five would >> yeah make that claim >> and and and we'll we'll we'll talk about why you know that happens sometimes but um yeah at least for this board you know it's good not to have exparte communications especially with quasi
judicial matters um but before I go on was there if there's anyone who has any questions about sunshine law public records voting conflicts Um, like I said, we're going to distribute these to you all. These are very abridged versions of my normal
4hour PowerPoint. Um, I'll also include a link to um this uh it's the AG's office puts it out every year. It's called the Sunshine Manual. It's a great resource. It's hundreds of pages long. Goes through every conceivable question
you could have. Has case law citations, AG citations, uh everything that you need. Uh it's updated yearly. It's a great resource. I go to it probably once a week just to double check my understanding of what's going on. So, um I'll include a link to that in my email to Corey. He can shoot that out to you
all. Uh just, you know, for a Sunday afternoon reading if uh if you're bored. I know the weather's been so beautiful lately, it's uh hard to stay inside. >> Yes. >> It's not really directly here, but I' i've just I've been thinking about this since you started. When you do a foil
request for you, you want information or when you receive it, do is there a timetable that you have to respond to that? >> Yeah, reasonable time. >> What's Oh, so there isn't. >> Yeah. Yeah. Well, um, you know, uh, if it's a request for one document and it
takes the agency, you know, two months, that's not reasonable. Um if uh you know there's a request made and we have to go the city has to go through thousands of documents and has to go through emails of past employees from decades ago or
you know or if there's a significant amount of redactions that have to take place. Um you know it might take a couple of weeks, it might take a month. Um and often times in those situations you know you communicate with the applicant. You make sure you understand what they're requesting. uh you you write them back, acknowledge receipt of
their request, make sure you you you know what they want. Let them know it might take a little bit because of what's involved. And then oftentimes you got to charge those people upfront you or you know get a deposit because of the staff time associated with the request. You can charge for it at in certain
instances. So um yeah, for public records requests it's a reasonable amount of time. I usually start getting on people after a couple days if it's a small request. Larger ones maybe a week, two weeks. But um yeah, the loss is a reasonable amount of time. Now to inspect a record, you know, that's even
more fact dependent. The hypo with the text and you know, you're right there, your phone's right here, the attorney's right here to see if it's a public record or not. The reasonable time to allow for inspection of that record is right then really, you know, you can't
delay that for two weeks. Um, so that that's kind of a distinction there between those two things, but yeah, it just depends on the the nature of the request. All right, parliamentary procedures. Uh, so this second PowerPoint mainly focuses
on operation and uh what you all experience uh every meeting. Um, I will probably if you guys don't want it, I'll probably skip through the parliamentary procedures. I mean, you all know how to go through an agenda, right? We know how to make motions. as we know to second
motions um particularly when there's an applicant in front of the board and that staff has a recommended um motion. A lot of times it's appropriate just to read the motion or if it's an alternative motion, you know, you can make one up on
the fly, but it's it's important to be clear when you're making motions. Um you know, say what you actually mean, right? Don't just assume folks know what you mean when you make a motion. Um that way folks aren't confused and we have to take really good minutes. We have to
understand what uh the motion is. Um so that's more important with uh really formal quasi judicial requests. Legislative items like we had today. You know, everyone in the room who's going to work on the provisions you all authorize know precisely what it is that
you all are looking for. So you know it's okay that we had some back and forth. We had a motion in a second, then we had more discussion. Um, usually in a quasi judicial setting, I might rein that in. I might say, you know, it's not appropriate time to make a motion yet. Or, you know, I might say, chair, we have a motion in a second. You know,
let's have final discussion on the matter unless there's other questions. I might prompt you all to be a little more formal about how we go through all that. But, um, for something like this, it's really more beneficial to have a free flow of comments and suggestions because, you know, communicate ideas
better that way. Um, so yeah. So we'll go through this uh pretty briefly. We all know why we have procedure during meetings. Um we have an agenda. Uh it's required by law that before any meeting of the board you have to have an agenda.
Um generally like 99% of the time uh you cannot go off book, right? You have to only consider what's on the agenda. You can't consider something that hasn't been publicly noticed. Um, in very very rare instances is it appropriate to add things onto the agenda at the meeting.
Um, but it does happen from time to time. Those are usually um administrative items um or emergency items, but uh this board will never have anything like that. Uh let's see. Yeah, like I said, our
agenda provides that you all could amend the agenda at the beginning of the meeting. You can approve the agenda at the beginning of the meeting. Uh we can change the order of events to um help folks out so they don't have to sit through uh presentations like this for public comment. Um but we we want to
make sure we only uh address one item at a time which you all have no problem doing. Um yeah this and again this is sort of driven for for new folks. So I'm going to go through it pretty quickly. Um,
not all items require you all to make a motion, right? During your uh commission comments at the end of the meeting, you might have something that you want staff to pull up for uh the next meeting to address with the board or hey, we need more information on this project or that project. Can you bring us more
information at the next meeting? Uh you don't need a motion to make that direction to staff, right? There can just be a consensus of the board or it can be the individual will of a board member because you guys can ask for stuff like that, right? You need that information to make decisions
um for uh for approving um applications or making recommendations to uh the city. Uh you know, of course, a motion is going to be appropriate in those instances. Um, don't uh don't ever during a um and
you guys do a great job of this as well, you know, try not to talk over each other during meetings because it becomes very difficult for um you know, us and the audience to figure out who's saying what and when. Um, and if we ever do have a a hotter issue that comes before
the board where maybe the applicant is thinking they might need to appeal whatever the decision is, there will be a court reporter present. He or she will probably be sitting right over there and they're going to ask very politely that everyone, you know, speak one at a time so that they can take down what's being
said for the record. Um, so it's good to practice that now. And so we, you know, when it when we have a a bigger item, it's uh second nature to you guys. Uh votes, uh once the motion's complete and there's a second, um we call the
vote. It's either by roll call or just a voice vote, which is appropriate, uh most of the time. Um all in favor, all opposed, you know, that sort of thing. So you all you all are experts at this, so I will fly through this. Um amendments to Oh, yes.
>> Question. Um, you you commented previously, you don't go off agenda. You have an agenda and you stay on the topics of the agenda. Then you have public comment and someone stands up and they make a comment about something that's not on the agenda. What is a
tactful way to be able to diffuse that and stay on the agenda? >> Yeah. So, um, it's, you know, folks generally get that during public comment, folks could bring up any sort of issue before the board that pertains to planning and zoning. It might not be
something on the agenda, but uh, usually boards, it's not really the obligation of the board to respond to public comment. You're merely taking it. and if it brings up an interesting issue that the board wants to pursue, um, you know,
it would be appropriate to direct staff to look into it or bring something up at the next meeting. Um, the staff here is really great, so I'm sure they'd probably reach out to that person individually anyways, but it's sort of assumed that public comment might get a little interesting with what's brought up, and that's fine. it. The issue would
be if um the board wanted to recommend a particular ordinance to the city that wasn't on the agenda, wasn't noticed on the agenda. Well, then how would a member of the public know to come to the board to address the board on their thoughts on that particular item if it's
not on the agenda? Right? Oh, now we're making a formal recommendation to the city council and well, I didn't get to talk about that. I missed my opportunity to talk to the planning board about it. Right? That's more of the the issue and your um your your council comments or board comments at the end. You guys can
bring up anything you want. You're not taking formal action, right? You might be directing staff to get something or asking about a project. That's all fine. It's just informational. And we record the meetings, too, so folks can access those discussions anytime. So, um we're
just worried about things that um result in official action being taken. That's what I meant by the agenda thing. So, that's a great question. Thank you for for bringing that up. Amendments to motions. You can always amend a a motion for more clarity or if there's further discussion and you
change your mind a little bit, you want to tweak your motion a little bit, that's completely fine. You move to amend the motion. A lot of times, um, I will feel the discussion closing. I'll feel that there might be an amendment in the works and I'll oftentimes I'll solicit it. Oh, would the would the
member like to make an amended motion to reflect what was just discussed? and then an amended motion's made. There's another second and then a vote can proceed. Um I try to help you guys sort of get to that point. Uh questions about confusing motions. If
you don't understand what is what vote is on the floor, raise your hand, call in the chair. Can we pause? I don't know what we're voting on. Make sure to do that before the vote takes place. Uh no one will ever get mad at you for doing
that. Um generally uh on particularly on quasi judicial matters I will pipe up and I will say I don't know what the motion is on so I need to understand it so can you clarify for my sake or for staff's sake. Um and uh a lot of times we'll help again we'll guide you guys in
the right direction. Uh motion for reconsideration. This happens um very very very very rarely. um actually had it come up the other day. The city of Rocklage at a CRA meeting um they voted a particular way
to continue an item because someone wasn't present and then the person showed up 5 minutes later because they thought the meeting was 30 minutes later than it really was. Oh, motion to reconsider, you know, the prior tableling so that they could have their item considered during that meeting. Um that's really only when it's
appropriate. Uh I advise against this almost always except for things matters like that because you don't want to have a um decision rendered by the board uh and then have the applicant leave and have all the interested parties leave. Ah you know what motion to reconsider
our prior vote and let's discuss things that the applicant's not privy to now or we can speak freely now right and then you change your vote. You know that's not only a due process issue but an abuse of what this uh really is. So,
so very sparingly uh anytime um this is important not in the context of parliamentary procedure but it is a due process concern. If you all ever feel um the need to table a matter or an application or a you know whatever comes before you. Um
legislative items it's a lot different because it's the city that's coming before you for legislative items. But for um uh for applicants uh anytime there's a tableabling it it really has to be to a date certain right the next
meeting which occurs on April 4th 2026 right uh that way when you all issue the order it'll spell out precisely what's going on that also helps staff because then they don't have to renotice that particular item publicly again right uh
as opposed to not hearing the item that particular ular date. Well, then it has to get renoticed and published again and that costs money. So, we don't like to spend money if we don't have to. So, just keep that in mind. Any questions? I know we went through that quickly, but you guys seem pretty good
on process. So, >> yeah, if we wanted to sit through the 4hour training, >> I know it's been a while. What do you mean we >> So, this actually is not this is not on the 4hour um >> possibilities, you know. So the the this
again is just for you guys to help work through the mechanics of getting through the meeting. It really matters a lot when there's tough items before the board because you got a packed house and people are chitchatting and it's really good to be sharp and on it and organized and that helps you guys organize your
thoughts too so you're not thinking of things you shouldn't be right before you make a motion and a and there's a vote held and now you know I'm worried about the response to the red assert I'm going to have to draft over the weekend, you know, in a couple weeks. So, um, you know, it matters a lot, but you guys do
a really good job. So, um, good on you for that. All right. So, we talked a minute ago and we had a a question from the chair beforehand on what the difference is between um, the question wasn't phrased this way, but what's, you know, the difference between a
legislative hearing and a quasi judicial hearing? We talked about this. A legislative hearing is uh, you create new law, right? We still have to do that at a notice public meeting, but we're legislators. You guys are thinking about policy determinations. Well, you know, I
don't want to have that kind of use next to that kind of use, and I don't think that really fits with, you know, what we should have here in the city of Cocoa Beach. Um those sorts of discussions are the hallmark of what a legislative um item really are, right? You're thinking about the future. you're thinking about
how should we um phrase or how should we define things or we need to make sure of this or that. Um that's a legislative matter. Uh compare that to a quasi judicial matter which is where you have a set of standards, you have laws, you have criteria, right, for things like
resonings. An applicant comes with an application. There's a certain set of facts that comes with that. What are you all doing? You all are judges. You're applying the set of facts that are brought to you and you are impartially applying that the to the existing
criteria. We're not doing anything new here. We're just applying a set of facts to existing law. All right, that's the distinction. And usually um I tell all my tell all of my boards if you ever wonder whether an item is quasi judicial
or legislative, you can come ask me before the meeting and I'll tell you or you can ask me during the meeting. Um thankfully here at the city um I read a script that will tell you precisely what an item is before we uh consider it.
Um so we just talked about this. You know the questions you ask, did a party do something to violate the law, like a code enforcement matter, right? Or does law authorize a party to do what it requests? They want to reszone their property from A to B. Does the law allow that to? Did their application meet the
criteria? Right? Why do we care whether or not something is legislative verse quasi judicial? You can see some examples of quasi judicial matters here. And of legislative matters. comp plan amendments, feature land use map amendments often come paired with a
reasonzoning request. Interestingly, the uh comp plan amendment is legislative. You guys can discuss and um apply any sorts of reasonings behind what you want to do as long as it's not arbitrary.
And um you know then the following item which is the reasonzoning application, well that's quasi judicial. Different standards apply to that. Well, why do we care about the distinction? Um, we care because quasi judicial
proceedings require process. And by that I mean procedural due process, right? It's not the same level as a normal hearing like if you go down to Vieiraa and you have a hearing before a circuit court judge or a county court judge. But we do have to make sure we do two
things. We have to make sure that there's adequate notice provided to the applicant and to any interested parties. And we have to give the applicant an opportunity to be heard. What does that mean? They have to be able to present evidence, cross-examine witnesses, and they have to be informed upon all acts
which the facts upon which the board acts. And that's why exparte communications are generally a no no. We'll talk about that in a minute. Part of um making sure that applicants receive adequate due process in quasi judicial hearings is um you know it's
basically notice and did the board apply the competent substantial evidence that was discussed or offered at the at the presentation or the hearing to the existing set of facts? If so, it'll be upheld if it ever gets appealed. Right?
And that's what we care about. We don't want to violate the law. We want to make sure we make good decisions. Um there's definition of competent substantial evidence here. Um I I think it's kind of clunky. Um you know, it's relevant evidence that uh deals uh with um it's
facts uh really dealing with what's at issue. So facts that deal with any of the stated criteria that you're evaluating against, right? What are the conditions for a reasonzoning or what are the conditions for a site plan approval? Is their applicant sufficient?
Did they meet the stated criteria? Go look in the packet. Go look at the application. Question staff. Question the applicant. Right? All of that testimony and all that documentary evidence, that's competent substantial evidence. Right? Whether or not, you know, they've been here for 20 years or
not is not competent substantial evidence, right? It has nothing to do, it's not relevant to the decision before the board. Um, it's only factbased testimony that we're considering. um the opinion of uh an expert is competent
substantial evidence. Corey and his team and David, they're experts in their field. So courts say they're actually really good to rely on. So the staff packet, the staff recommendation, their evaluation of how things will work if something's approved, right, with
traffic or or what have you. Um, a lot of people like to bring their traffic expert in to talk about traffic because they're the only people who are qualified to talk about traffic. Um, compare that to someone off the street who may have lived in Cocoa Beach their whole life and know the traffic patterns
better than anyone else. Their opinion, unless they're an expert, unless they have qualifications, will not count as competent, substantial evidence um, in that regard. All right. So, the question I always ask myself when I hear
discussion back and forth is um you know, is where the board's going, is the board's decision supported by relevant fact-based testimony or documentary evidence concerning the request before the board? That's what I think about. Um, so we just talked about this, uh,
documentary evidence, uh, testimony from witnesses, experts, even the applicant. oftent times if there's an expert like an engineer or traffic analyst uh in the room who's going to testify I'll ask them to give their credentials to the board so that they can be certified as
an expert right they've been doing this for x number of years they hold these degrees what have you certifications um the written report of the local government's professional staff is like the gold standard that courts look to um so really evaluate that and really um
pick that apart and hearsay is fine Right. U this isn't like a formal proceeding. So hearsay evidence can be compet substantial evidence as long as it's not the only evidence supporting the decision. But that almost will never be the thing you guys rely on. So I wouldn't worry
too much about that. Yeah. So this is the question I get the most. Well, what about you know um I'll pick on my my mom's name. What about Carol who comes in and she said, "Well, I've lived here for for 35 years and I, you know, the traffic there is horrible
and it's just going to get worse and they're not going to have adequate traffic controls and their site plan doesn't address this and doesn't address that." Well, unless there's something else to support that, maybe a document that they bring in or they show or they hire their own expert to show that the
analysis is flawed in some way. um lay opinions generally don't count as competent substantial evidence. Um right and sort of the the classic example is that you know their conjecture that a project would increase crime or that the developer is not going
to comply with um you know some prescription that's in the approval. That's insufficient. That's not going to count. Um so that's something to keep in mind. Of course, you know, that doesn't stop them from being able to comment on matters.
And um it's very very rare when that sort of testimony can be considered to support a approval or denial. And here are the two exceptions. Um the public is presenting actual and specific facts relevant to the decision rather than
just their opinions. Um uh the public statement may constitute competence of potential evidence. Um, the second part, and I, this has actually come up in my practice once where I had to deal with this on an appeal, is where the testimony is regarding subjective
matters that don't require expertise, um, like a development's impact on an area's natural beauty. Uh, that might constitute competent substantial evidence if the subject matter is relevant to the legal inquiry. So you still have to plug it in to whatever the
criteria is that you're looking at, right? You can't really go beyond that. Um, and this is only for quasi judicial matters. For legislative matters, you can consider their opinions and conjecture all you want. That's the whole point of legislating. What is the
opinion of the people? What do I think's right? Right. Um, this is different. Again, you all are are judging a set of facts against established law here. So, we can't deviate from that. Um it's not a popularity contest. The whole room can be screaming at you.
Doesn't matter. Um the uh the circuit court judge sitting in an appellet capacity on an appeal won't care how many people are in the room. Um and it can't be based on the number of people who are at the meeting or sent emails uh who are for or against the proposal.
Uh yeah. So really what your job is is to take in the evidence from staff from the applicant hear public comment and now you're assigning you're you're judging what's more credible than not if there's a difference between staff and the
applicant and um you know is there compet substantial evidence to make a decision either way. Sometimes you could go either way and it would be legally justified. And um that is because that it does not matter uh if 51% of the
evidence supports approval and 49% you know would be on the side to disapprove of an item. As long as there's some compet substantial evidence to support a decision, it'll be legally upheld if it ever gets appealed.
Right? We just need something in the record to justify to go point to, right? Um now again, very rarely is that the case before this board. You guys typically don't have really crazy items um where there's a lot of contention
between staff and the applicant. Um but uh if you ever have questions during the meeting about a particular item or uh you know, hey Mr. attorney, can we consider this as competent, substantial evidence or, you know, can I assign this
weight to that testimony? Those are appropriate questions to ask me. Um, I will never tell you which way to go or what weight to assign. I'll, you know, just give you your options, right? Yes, that could be comp substantial evidence to support, you
know, meeting that specific criteria. or yes, you know, that fact would support a finding that they've met, you know, their applicant or their application's complete, right? Those are the things we're looking at. All right, so that was a lot. Any questions, any thoughts, any comments?
Just It's getting late, Garrett. Come on, let's get out of here. All right, exparte communications. What everyone's been looking forward to. Uh, what are they? their communications between a decision maker and another party without the presence or the permission of all other parties to the
proceeding. Um the reason why these are frowned upon is that they the law um sees them as being presumptively prejuditial. So it could have been a completely innocent conversation. Doesn't matter. The law presumes it's
prejuditial to the other party. Um, and sometimes we don't know who all the parties are to a quasi judicial proceeding because who has standing to contest a matter, it might be more than just the city and the applicant, right? It might be someone who gets a notice
who lives within 300 ft of a a proposed reasonzoning, right? It might be another member of the public who has standing. Um, and so that's why it's really hard even when the city says, "Oh, yeah, it's okay if you talk to their lawyers and whoever and whoever because well, we don't know who else might show up,
right?" Um, so that's why that's what they are. And um, the law again finds them to be presumptively prejudicial. So what do we do if we have them? Um, we have to disclose them, right? And so we do that um, right? not at the
beginning of the meeting because that's really where we're disclosing conflicts. Um right when a meet right when an item is uh being considered um you would you know I'll ask has anyone had any exparte communications regarding this matter. Um people like to say I drove by the site
that's fantastic not an exparte communication but you know helpful to know. Um we're really looking for communications between you and the applicant. Um, and what do we need to discuss when we disclose ex exparte
communications because that's how you overcome the presumption of prejudice. Um, really easy four points. Identify, summarize prior to or at the hearing and it has to be made a part of the record.
What are you identifying? The person, group or entity with whom the communication took place. A brief summary of the subject of the communication. um in sufficient detail. Usually it's just we talked about the project or we talked about the parking issue or we talked about you know this. Um the
reason why you have to give a short summary is to allow the agrieved party an opportunity to um cross-examine you. Well, when you say you talked about the parking issue, what did you talk about? Oh, well, I own a a paving company and
the applicant told me that to solve their parking issue, they're going to hire my firm to do the paving, right? Well, that's important to know, you know, um, you know, and we talked about due process earlier. Part of, um, someone's due process rights is knowing all of the facts upon which the
commission acts, right? Well, if they know that you're going to get a big contract if this gets approved and the applicant told you that outside of a meeting, well, that they have a right to know that, right? And that's why exparte communications are um, you know, disfavored. So, we want to identify who,
what do we talk about. we have to disclose it prior to or at the meet at at the quasi judicial hearing right when it starts. Let's talk about let's disclose it because we're talking about that subject already. It's hard to bring people up in in in the messy situations,
you know, an hour or two before their item goes before the commission. So, I like to do them right at the top of when the item is being um discussed and it'll be made a part of the record. it goes into the minutes and um and then that dispels the issue of uh the prejudice.
So I have dealt with um expporte communications before. Um when our firm was the city attorney for the city of Naples, someone alleged that there were um rampant expporte communications with the developer, which there were, but they were all disclosed and um you know,
we had to go through a lengthy appeal to to win that. uh which we did win but again you know it it would have helped if those um communications were minimal um or didn't occur at all. So it is sometimes okay to you know chitchat with folks or get an understanding from folks
but um often times it'll be better to ask staff to call the applicant and ask them to supplement their materials with information you think is lacking from their application. Um, that way it's not
you having the communication and it gets in front of the issue of, hey, we don't have enough information to make a decision tonight, right? And you only know that a couple days before the meeting, you know, cuz that's when you're usually taking a look at your agenda. But, um, that's always where my
head goes, right? Well, let's just supplement the record because we can consider the record during the meeting. Um, and that way everyone has the benefit of getting the information, not just the secondhand information from someone. All right,
last last thing before I let everyone go tonight. Donald, he's a member of the city's planning board. During a recent meeting, a board reviewed his board reviewed an application for a reasonzoning of a property from agriculture to heavy industrial. staff supported the resoning and the applicant
prov presented testimony from a certified planner to discuss the merits of the application. During the presentation, the neighboring property owner objected to the resoning on the basis that quote, "The city is simply not the place for this sort of activity. We need to save the trees." There was no
other evidence testimony presented at the hearing. Donald, who recently had a fantastic lunch with the applicant to discuss the application in advance of the hearing, shot back at the neighbor and defended the project. Nevertheless, the board denied the application based
on the neighbor's testimony. Call it out. What are the issues? >> Donald should never have had lunch. >> Yeah. So, that's an exparte communication. What would Donald have to do to remove the presumption of prejudice of that uh lunch conversation?
disclose it. >> What does he got to disclose? >> The fact that he met with the applicant, >> identify the individual. Yep. >> And discuss the application. >> Yeah. What they talked about? Very good. And then who would get to um the neighbor? Would the neighbor get to come
up at that point and say, "I want to probe you a little more on precisely what you all talked about at this lunch." Absolutely. Right. Um absolutely. as though the board threw out the expert testimony of the
uh the plan, you know, the the city >> in favor of and and they've ruled against the applicant even though the board the expert witnesses were telling them that they should have been. >> Yeah, precisely. Look, we got we've got really three categories, you know, kind of different areas of of evidence. We've
got staff's recommendation that goes a long way, right? We have all the facts supporting staff's recommendation. We have an expert, a certified planner who came to discuss the mayor of the application, right? Competent, substantial evidence, you know, there and there. Now, we have this opinion. We
have this conjecture, right? Oh, it's my opinion. The city shouldn't be the place for this activity. We need to save the trees. >> Not based in any fact. >> Well, you know, we may all agree with that, but at the same time, that's not based grounded in fact. It's just an opinion. And so, um, you know, we have
here that there's no other evidence or testimony presented at the hearing. So, is there competent substantial evidence to deny the application? No. Right. So, this is going to get overturned if it gets appealed. >> I was going to say, when did they go to court after this?
>> Yeah. Oh, yeah. Definitely going to get overturned. The um there was one other like little thing that I tried to write into this. I don't know if I did, but yeah, that's that's more or less the case. This is sort of um you know, these are this is all straight from appeals that I've worked on in the past, right?
people having lunch to discuss matters. Um boards relying on the conjecture of one or it's usually many many residents. Um sometimes I've sat through planning board meetings where a more than a hundred people get their three minutes
>> and it's it's a it's a wonderful time but it's hard sometimes to parse through what's going on, what's you know mere conjecture, what's factbased. So hopefully going through this this training and and the hypos um when we do have you know uh hot button issues you
all sort of have a toolkit to sort of u get through it all and then if there's ever any questions that you guys have during the meetings again I'm never going to tell you what to do but I can give you your options or I can help I can reaffirm hey Garrett is that you know we just heard from that expert is
that competent substantial evidence to support meeting that specific criteria? Yes. Right. and they're a certified expert, you know, unless there's another expert in the room that has a different opinion. Well, that's competent, substantial evidence, too. And then you
guys can weigh who you find more credible, what you agree with. Right? >> Here's the problem I observe. We always had what if there's a major project being proposed every citizen thought it was creating
too much traffic and every developer had hired a consultant to say no there's not a problem with the traffic. >> Yeah. >> Would we consider as a city hiring independent traffic consultants to look at it from the city's point of view?
So, normally city staff has enough, it would be legally sufficient for city staff to to see whether or not the traffic analysis that's offered by the applicant meets whatever the application
requirements of the city is, right? if it's a barebones traffic analysis that really doesn't address any of the issues the city has or you know because they're lifelong planners that's what their profession is well they'll let you all know that right and now you all can weigh that opinion which is competent
substantial evidence with the opinion of you know the applicant and um I I don't it might be possible but I don't I think cities are getting away from that a lot of cities are trying to move the cost burden of reviewing development applications onto the applicants.
>> Lots of fees shifting ordinances out there where >> but there's a built-in conflict of interest when the consultant's being paid by the applicant. >> Yeah. Yeah. Precisely. But >> actually in New York that's dearore where I come from. That's what happens. Our our our environmental impact
statements could be five volumes. I mean they're like this. But all of those, all of the studies, everything everything is people who are working for the municipality but being paid by the uh by
the applicant. And yes, does that make I think it makes things murky? Of course it does. It's you know, but they're just too expensive for the municipality to absorb. They can't do it. I mean, the municipality cannot absorb a $100,000 traffic study on a on a major devel.
They just can't do it. >> I'll tell you guys, uh, the project of the drift on 520 there, it was built into their DA that we could charge them for other things. >> Studying. Yeah. >> And one of the things we did is we hired
a traffic study, our own, and they paid the bill for it because, like you say, we were questioned about the traffic. >> So, we got our own approval. And a lot of these companies that that these professionals who do these studies, whether it be storm water,
traffic, um, uh, the anything, they understand that pretty much they work for municipalities even though they're not paid for it. So they they stay on the up and up so that they can continue working for those municipalities. >> There are other things to look into because it's not always just volume of
traffic. It's turning maneuvers and things that are really affect traffic in a way more than the volume of traffic. >> And to your point, >> yeah, >> our study came back and they suggested a different turn pattern.
>> So drift is going to have to change it to what we require. The uh the important thing to take from from all this is that even when there's an expert that comes up with an opinion, you know, scrutinize their work. I mean, you all have experience in these
matters. So, you know, use your experience to to sus out maybe things that they're overlooking or generalizing. And if they're not really answering your question, you know, correctly, you know, really dig into them. And um that's what the hearing process is about. It's about, you know, what are the relevant facts? Did they
meet the criteria? And if there's a question between, you know, maybe they did, maybe they didn't, who are you going to assign more credibility to, right? You're the judge. You have to be impartial. Um, you sort of have to remove how you feel about it. You know, you have to put it aside. Whereas in a
legislative matter like tonight, how you feel or your opinion on a particular matter matters a good deal because that's the expertise that the city's soliciting in that hearing, right? We want to know your thoughts on this because we're we're making a law. we're not applying it to someone, right? If
you have a law on the books already and it's a process to reszone, well, they're entitled to go through the application process, right? And if you deny them the due process of of that pro of of that, you know, application by not considering the evidence they bring, well, that's a problem, right? They're going to go to
court, they're going to win. And just to let you all know, if someone appealed um a decision, it wouldn't be from you all. You all make recommendations to the city. it would be you know city there are still uh many many cases that will
go back to the planning board commission in the statement of facts um of the it's called a petition for ridicers or ritert for short um they'll go back and they'll they'll point out all the deficiencies in the planning board pro the hearing
and they'll and then it's not entirely legally relevant but it sets the j the judge up to think oh man you know these people are just going to get railroaded from the Right here, here's the other thing that really stuck with me is we don't always get the
cooperation of FDOT. Yeah, that's too many cars to be making a lefthand turn uh into the without a traffic signal. Well, FDOT said, "Well, until that occurs, we don't know if that project's going to happen, and we can't
justify the expense of a traffic signal to do that." done what do you do? >> Yeah, you just got to whatever they're, you know, you got to look at what's before you. You can't consider anything outside of the scope, right? So, it's it's difficult, but you just you hope that the applicant is savvy enough um
you know, to come prepared with responses or, you know, supplementary information. A lot of them will offer to do things to address concerns. Hey, we'll do that extra study when it comes to site plan. I mean, because a lot of times these issues get brought up in the resoning, which they're really not
adequate for the >> cooperation from FDOT. >> Yeah, I I hear you. Um but the but just to fill in the picture, if an item ever does get appealed, it goes up to circuit court um after about five or six months.
If the applicant, if the the petitioner succeeds, uh the only thing that happens is it comes back down to the city to consider again. That's all. If it gets upheld, it's upheld. So, um so that's how it works. That's why it's important
sometimes, not for you all necessarily, but for the um the commissioners, you know, even if an item's been done and it's passed them, well, if it gets appealed, it might be coming back, right? So, don't talk about it with the other commissioners. But uh that's the presentation tonight. Um if you guys
have ever have any questions, just give me a call. Um if you don't already have my card, I have lots of cards, my number on it. Um and yeah, so thanks guys. >> Thank you. >> Yep. >> All right. >> Okay, moving on. >> Are there any other staff reports or
announcements? >> And then any board reports or announcements? Thank you. >> Thank you. >> Yeah, absolutely. >> Thank you. Nobody I I did have one or two things. I think we're supposed to
have a yearly or an annual report of some sort. So, I don't know that we've done that. I don't I haven't seen it. So, probably need to look at the annual report from last year or put put one together. And since we're now taking on the land
management and sustain sustainability, it probably needs to check to make sure that those duties are included in our LDC. Whatever the new ones are, if if they're not already, I don't know. It's kind of high level, but whatever their charter says, if we're responsible for
it now, it probably needs to be in the duties. Yeah, I think that's part of the commission to add that, but I'll get all the information I can to you folks. >> Yeah. All right. Meeting adjourned.