2010.03.17_TC_Minutes_Special (2) Original Transcript
THE TOWN OF COMMISSION
OF THE TOWN OF HIGHLAND BEACH, FLORIDA
TOWN COMMISSION MEETING
March 17, 2010
10:30 a.m.
3614 South Ocean Boulevard
Highland Beach, Florida 33487
Reported By:
Beth Sklar, Professional Reporter
Notary Public, State of Florida
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THE TOWN OF COMMISSION
OF THE TOWN OF HIGHLAND BEACH, FLORIDA
TOWN COMMISSION MEETING
Wednesday, March 17, 2010
10:30 a.m. - 12:12 p.m.
3614 South Ocean Boulevard
Highland Beach, Florida 33487
Reported By:
Beth Sklar, Professional Reporter
Notary Public, State of Florida
Esquire Deposition Services
West Palm Beach Office Job #152101
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HEARING March 17, 2010
2
1 PRESENT:
2 MR. JIM NEWELL, Mayor
3 MS. MIRIAM S. ZWICK, Vice Mayor
4 MS. DORIS M. TRINLEY, Commissioner
5 MR. JOHN J. SORRELLI, Commissioner
6 MR. JOHN J. PAGLIARO, Commissioner
7 MR. DALE S. SUGERMAN, Town Manager
8 THOMAS E. SLINEY, ESQ., Town Attorney
9 THOMAS J. BAIRD, ESQ., Special Counsel
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HEARING March 17, 2010
3
�. 1 P R O C E E D I N G S
2 - - -
3 MR. BAIRD: This is a private session and the
4 purpose of the private session is for the Town
5 Commission and legal counsel to discuss the
6 settlement negotiations and strategy related to the
7 litigation in the case of Palm Beach County versus
8 Town of Highland Beach, Case Number 502009CA02XMB
9 filed July 20, 2009, in the case of Palm Beach
10 County versus Town of Highland Beach, Case Number
11 502009CP018459XMB filed May 27, 1 09, 2009. The
12 entire session will be reported by a certified
13 court reporter. We expect -- I would expect the
14 session would last about an hour and a half.
15 The following persons will attend the
16 attorney- client private session: Town Commission
17 members Jim Newell, Mayor; Miriam S. Zwick, vice
18 mayor; Doris M. Trinley, Commissioner; John J.
19 Sorrelli, Commissioner; John J. Pagliaro,
20 Commissioner; Dale Sugerman, Town Manager; Thomas
21 E. Sliney; and Thomas J. Baird, attorney
22 representing the Town in these matters.
23 Once the attorney- client meeting is completed,
24 the Commission will return to open session, and I
25 think we're now ready to go into closed session.
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HEARING March 17, 2010
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1 MAYOR NEWELL: Thank you. I would now request
2 the public to vacate the chambers.
3 (The public exits the chamber.)
4 MR. SLINEY: I just want to remind everybody
5 that once the matter is terminated, the cases are
6 terminated, anything you say today would be a
7 public record, so I just wanted to mention that,
8 and ready for the Mayor to begin the meeting.
9 MAYOR NEWELL: Okay. One thing: I don't know
10 what the rest of you are going to do with this
11 letter, but I refuse to look at a last minute
12 letter, maybe sometime I'll take a look at it, but
13 that letter should have no bearing on what we're
14 discussing today that is presented to us at this
15 late date. Okay. Okay. I guess -- is Tom Baird
16 going to --
17 MR. SLINEY: Your Honor, I think that Dale
18 probably should orient us.
19 MR. SUGERMAN: We can do this a couple of
20 different ways. If you'd like, after I make some
21 brief opening remarks, we can either go through the
22 entire document that's been proposed by the County
23 sort of paragraph -by- paragraph, or I can just
24 answer any questions that you might have.
25 MAYOR NEWELL: Okay. Let's settle that first.
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u 1 MR. SUGERMAN: Sure. Let's figure out how
2 we're going to sequence it.
3 MAYOR NEWELL: As far as I'm concerned,
4 because of the seriousness of this decision and
5 this document, I prefer that we go through
6 paragraph -by- paragraph. Any other commissioner
7 wish to state otherwise?
8 MR. SLINEY: Could I just say one thing? You
9 will not be voting here. I just want to clarify
10 that for the record. Only a decision ultimately
11 would be made in a public session.
12 MAYOR NEWELL: That public session will be
13 when?
14 MR. SLINEY: Well, we're going to be
15 discussing that as we go along.
16 MR. SUGERMAN: Your staff, in the form of
17 Mr. Sliney, Mr. Baird and myself, we've had a
18 series of meetings with the staff members of Palm
19 Beach County, and I would say over the course of
20 the last six months, we have reached, from a staff
21 perspective, what we believe is a stipulated
22 settlement agreement which we are bringing to you
23 this morning for purposes of, one, discussing it
24 and answering any of your questions, and, two, I
25 think we're prepared to make a recommendation that
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HEARING March 17, 2010
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1 the Commission should accept, what has been L
2 proposed by the County, and we are prepared to
3 defend why we're recommending that. And as the
4 town attorney alluded to, the process for doing
5 that is in a public meeting. We will have a
6 resolution by the Town Commission which will be
7 acted upon to either accept or reject the proposed
8 stipulated settlement agreement. Again, it's going
9 to come with our recommendation that the Commission
10 accept it.
11 What I can do today is I can walk through the
12 document, which is a part -- well, it's all a legal
13 document, but it's mostly an administrative outline
14 of what's going to happen in a relationship between
15 Palm Beach County and the Town of Highland Beach as
16 it relates to the development of Milani Park, and I
17 think that's why Tom Baird is looking to me to walk
18 you through this document because, for the most
19 part, this is administrative stuff.
20 Our two attorneys can weigh in whenever they
21 want but will probably end up weighing in as it
22 relates to the legality of things. But from my
23 perspective, the document is mostly an
24 administrative document of how we're going to close
25 this deal for the development of Milani Park. And
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1 if there aren't any other questions or opening
2 comments by either attorney, I'll just go into the
3 document.
4 MR. SLINEY: That's fine.
5 MR. SUGERMAN: Okay. Any questions?
6 Okay. It begins on this page here. It says
7 "Stipulated Settlement Agreement." It begins with
8 a number of recitals that are captioned as whereas
9 clauses. The first whereas recognizes that the
10 County did submit a special application, special
11 use application, to the Town back in 2001.
12 The second whereas clause recognizes that they
13 abated their special use application during
14 litigation that was pending on the subject
u
15 property.
16 The third whereas clause recognizes that the
17 litigation ended, and that on February 27, 2007,
18 the County resumed their request for a special use
19 application on that parcel.
20 They submitted to the Town an updated special
21 assessment use application packet and then the
22 Town -- the fifth whereas clause recognizes that
23 the Town Commission did consider that application
24 at four different hearings: November 4th,
25 December 2nd of 2008; and January 6th and
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1 April 27th of 2009. And then the Town Commission L/
2 adopted a resolution approving the special use
3 exception -- I'm sorry, the special use application
4 with 43 conditions.
5 MAYOR NEWELL: Question: What were they, four
6 public meetings we had?
7 MR. SUGERMAN: There were four public -- well,
8 actually -- yes, there were four public meetings,
9 but, to be more accurate, it was a continued public
10 hearing.
11 MAYOR NEWELL: Okay.
12 MR. SUGERMAN: So it was one hearing that was
13 recessed.
14 MAYOR NEWELL: It was a continued public
15 hearing and I believe that we communicated with the
16 general public and Boca Highlands.
17 MR. SUGERMAN: I believe we did throughout as
18 well.
19 MAYOR NEWELL: Thank you.
20 MR. SUGERMAN: So the Town Commission adopted
21 a development order which granted the special use
22 and had 43 conditions of approval and that was
23 through resolution 009 -004.
24 Although it doesn't say it in the next whereas
25 clause, in essence after the Commission adopted or
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u 1 approved the application with the 43 conditions,
2 Palm Beach County took exception to five of those
3 conditions, and when they took exception, they
4 filed a Writ of Petition for Certiorari in the case
5 that's listed in the seventh whereas clause and
6 that case was heard and it was denied by the Court
7 without comment, and so the seventh whereas clause
8 recognizes that their petition for writ was denied
9 by the Court.
10 The eight whereas clause, though, recognizes
11 the ongoing action for declaratory and injunctive
12 relief which has not been acted upon by the Court,
13 so that is still outstanding. However, I think
14 you'll find later on in the document that with --
u
15 if there is an acceptance of the Stipulated
16 Settlement Agreement, it will also settle that
17 outstanding action.
18 The second to the last whereas clause says
19 that both parties wish to resolve the pending
20 appeal and action in order to avoid time and
21 expense of litigation.
22 And the last whereas clause is the one that is
23 sort of the defining statement about the intent of
24 the County, so I'll just read it out loud to you.
25 It says, "Whereas, Palm Beach County intends to
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HEARING March 17, 2010
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1 postpone its development of the subject property to
2 prioritize other means of providing beach access to
3 the citizens of Highland Beach and Palm Beach
4 County," so they're recognizing, before we even get
5 into the meat, that they want to postpone the
6 development of the subject property.
7 And therefore they have proposed the following
8 conditions which they would like the Town
9 Commission to consider. And the first item is
10 Condition Number Five from the 43 conditions.
11 Condition Number Five deals with a fence that we
12 require the County to install on the beach to
13 establish a point of demarcation between what is
14 public land -- that would be the County's beach --
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15 and private property, and the County is willing to
16 do that except if the County can't obtain permits
17 from the necessary agencies in order to install
18 that fence, and I believe the necessary agency
19 would be the Department of Environmental
20 Protection. If the DDP will not issue them a
21 permit to install a fence, then the County does not
22 want to be held to Condition Number Five and they
23 would not install a fence. And your staff is
24 recommending that we accept that condition that
25 they make the attempt to install the fence; if they
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1 can't get a permit, then they don't have an
2 obligation to install a fence. And I'll stop there
3 as far as the first item of merit in the settlement
4 agreement to see if there's any questions.
5 MAYOR NEWELL: Any questions or comments?
6 MS. ZWICK: I have a question to the
7 attorneys.
8 MR. SUGERMAN: And please make sure you speak
9 up, Vice Mayor.
10 MS. ZWICK: I have a question to either of our
11 attorneys present here on page number two, the:
12 "Whereas, Palm Beach County intends to postpone."
13 The legality of the semantics of the intent is what
14 I question, and it's showing an intent doesn't mean
15 a promise to do it. They can intend and change
16 their minds. It's only an intention. It's not a
17 definite agreement to do so.
18 MR. SLINEY: I think if you look -- when we
19 get further into the document, it basically says
20 there are different periods that they're going to
21 postpone for ten years, there's a possibility of
22 this being in the air, so to speak, up to 20 years,
23 but we can address that as we get to that
24 particular section, okay?
25 MS. ZWICK: I'm just questioning.
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1 MR. BAIRD: Yeah, I understand. That's a good u
2 point.
3 MAYOR NEWELL: Okay. Go ahead.
4 MR. SUGERMAN: On page three, I'm at the
5 bottom. This is now still item one, subsection
6 three. It pertains to Condition Number Six.
7 Condition Number Six dealt with the Town wanting to
8 be satisfied that the registered professional
9 architect that was proposed to be used by the
10 County on the project, and all along we were
11 uncomfortable from a historical perspective with
12 the archeologist. I think I might have said
13 architect earlier, I meant archeologist. We were
14 uncomfortable with the County's choice of an
e.i
15 archeologist and so we put in language that said,
16 in essence, there would be to archeologists hired,
17 one by the County and one to be satisfied by the
18 Town. The County responded to that by saying,
19 Well, instead of being forced to hire two
20 archeologists right from the get -go, would the Town
21 find it satisfactory that if we hire, the County
22 hire, an archeologist, if that archeologist is
23 acceptable to the Town, then we don't need to hire
24 a second archeologist; but if the archeologist that
25 the County hires is unacceptable to the Town, then
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u 1 the Town may go ahead and hire its own archeologist
2 and the County will pay for that archeologist.
3 And, so the new language is that if the Town is not
4 satisfied with whom the County uses as their
5 archeologist, then the Town may choose to hire its
6 own archeologist and the County will reimburse the
7 Town for its reasonable expenses. So this
8 paragraph is just in essence instead of hiring two
9 at the beginning, they hire one; if everyone's
10 satisfied with that, they stay with one. If we're
11 not satisfied, we'll hire our own archeologist and
12 they'll pay for it, and we recommended the language
13 that's in the proposed Condition Six should be
14 acceptable.
u
15 MAYOR NEWELL: Any questions?
16 Proceed, please.
17 MR. SUGERMAN: Page four, Sub C, this pertains
18 to Condition Number Ten. This deals with the
19 County's application to register the site for
20 designation on the National Register of Historic
21 Places. The Town wanted that registration by the
22 County to take place within one year of the
23 adoption of the settlement agreement. The County
24 has countered with a willingness to register the
25 site within one year, but that one year would be
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1 triggered after their notice of intent to actually
2 resume the development.
3 MAYOR NEWELL: So that means that could be 20
4 years from now.
5 MR. SUGERMAN: That's correct. And, so here's
6 the distinction. The distinction is, if we hold
7 out and ask them to register within one year of the
8 settlement agreement, then the property being on
9 the National Register would bring with it all of
10 the burdens of being registered as a National
11 Historic Place. Should the County decide during
12 the next ten years or even the next 20 years to
13 sell that property and not build a beach, if the
14 designation which goes with the property is wrapped
15 around the property, they would have a much more
16 difficult time selling the property if that's what
17 they choose to do, so they don't want to have a
18 National Register of Historic Places designation on
19 property that they may want to put on the open
20 market and that's why they've countered that, okay,
21 if we're going to go ahead and develop it as a
22 park, we're not opposed to registering it and we'll
23 do so within one year of our notice of intent to
24 actually resume the development. But they don't
25 want to register it within one year of the
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u 1 settlement agreement because they may never build a
2 park and they don't want that noose of the registry
3 around their neck.
4 MAYOR NEWELL: Is it within the confines of
5 this meeting to discuss the possibility of the sale
6 of that property?
7 MR. SUGERMAN: Sure.
8 MAYOR NEWELL: All right. If we come to the
9 point where the -- we're considering to sell the
10 property, we all know who the potential buyer would
11 be, is there anything -- does the Town have any say
12 or any wedge in that transaction?
13 MR. SLINEY: You mean just from a buyer /seller
14 standpoint?
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15 MAYOR NEWELL: Well, I would assume right now
16 it's zoned --
17 MR. SUGERMAN: Government service district.
18 MAYOR NEWELL: -- government service district.
19 MR. BAIRD: Let's say just, in my opinion, the
20 prospective buyer who just appeared today wanted to
21 buy, I guess as I remember the original
22 1 87 agreement, that she has, theoretically, that
23 right of first refusal and I guess the County would
24 have to deal with her first, and then I would
25 assume that if they couldn't make a deal, the
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1 County would be free to put it on the open market
2 subject to the designation that the property is
3 currently zoned for, and then whoever bought it I
4 guess would have to come in if they were not happy
5 with the designation and I would think they would
6 not be happy with the designation because it's GSD,
7 they'd have to come in and convince the Town that
8 that's the wrong category.
9 MAYOR NEWELL: Now, when they -- the Milani
10 family has the right of first refusal on it. Does
11 that mean -- I don't have any idea of the numbers.
12 Let's put a number on it. Let's say they offer $10
13 million for it and there's somebody out there that
14 says, "We'll give you 12 million," is the County
15 stuck with that 10 million?
16 MR. BAIRD: Well, in my opinion they've got
17 to -- In other words, they have to use good faith
18 in that. In other words, they -- I would imagine
19 how it would be is the County would notify people
20 that this parcel is up for sale and then we
21 would -- we want "X" million dollars for it. You
22 know, again, that's really between -- the County is
23 not really a party to that, you know, so they have
24 to work out their legal issue.
25 If Mrs. Milani felt that they were not being
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u 1 fair and tried to get Mrs. Milani out of the
2 picture somehow, then she might have a lawsuit
3 against them, again on the right of first refusal.
4 It's a little hard to anticipate how those
5 negotiations would go.
6 MAYOR NEWELL: But the Town would still be in
7 control of the zoning?
8 MR. BAIRD: Yeah. Whoever buys it. We don't
9 care who owns it. Whoever owns it is subject to
10 whatever the zoning is.
11 MAYOR NEWELL: To this whole thing,
12 whatever this -- the final decision the
13 Commission -- the Commission makes a final decision
14 they have to accept that as well at that public
u
15 meeting, what is the likelihood if we make a
16 decision that is not favorable to the Milani family
17 that they would try to sue the Town?
18 MR. SLINEY: It's hard to speculate being
19 Mrs. Milani tends to be litigious, but I think the
20 Town needs to go ahead on the basis of -- that's
21 why the three of us are recommending this to make
22 the Town -- we're going to rec -- we have
23 recommended that this agreement is, we think, in
24 the Town's best interests. We can't be bound by or
25 worry about what the other party might do, in my
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1 opinion.
2 MAYOR NEWELL: Okay. But I think that
3 question needs to be asked.
4 MR. SLINEY: No, I don't disagree.
5 MAYOR NEWELL: Any other questions?
6 Continue.
7 MR. SUGERMAN: So now I'm on the bottom of
8 page four, sub D, which relates to Condition Number
9 14, and Condition Number 14 deals with the
10 Memorandum of Agreement that is a requirement of
11 moving forward with the project, and the Memorandum
12 of Agreement would have to be entered into by the
13 County, by the State Historic Preservation Officer,
14 by the Miccosukee and Seminole tribes of Florida,
15 by the Seminole Nation of Oklahoma and by the Town
16 of Highland Beach. That is a requirement that we
17 have put on the County and it is Condition Number
18 14. And the County has told us that they are
19 willing to enter into a Memorandum of Agreement.
20 However, if any of those parties that are listed in
21 Condition Number 14 are unresponsive or
22 nonresponsive to entering into a Memorandum of
23 Agreement with the County, the County does not want
24 their project held up and so they've asked, in the
25 settlement, that if they do not receive a response
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u 1 from any one of the parties that are outlined in
2 the proposed Memorandum of Agreement within 90 days
3 of inviting their participation, that the County
4 will be excused from the requirement of waiting for
5 any nonresponsive party beyond the 90 days, and we
6 thought that was reasonable.
7 MAYOR NEWELL: Questions?
8 MR. PAGLIARO: I guess -- the attorneys, I
9 guess, can answer this. I just have a problem with
10 the word reasonable. I mean, that's kind of an
11 open- ended, it's in the lap of the County. What is
12 reasonable to the County and what is reasonable to
13 the Town of Highland Beach may be two different
14 things. How do we -- I need to have that
\1
15 clarified. I don't feel comfortable that the
16 County is saying that they will make a reasonable,
17 quote /end quote, effort to contact. Because I
18 remember the earlier hearings, that seemed to be a
19 contentious on the part of the County that that was
20 very important to them because I think they had
21 some difficulties with one of the tribes, if I
22 recall.
23 MR. SLINEY: I'll let Tom Baird answer that.
24 MR. BAIRD: Thank you. If you look at page
j 25 five, the underlined portion at the top of page
i
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1 five, it explains what a reasonable effort is. It
2 explains that if, as the County is going to seek
3 the participation of the tribes and SHPO by sending
4 a regular and a certified mail letter, that letter
5 is something that myself and Mr. Sliney will agree
6 with the County is an appropriate letter to those
7 entities, and if then after 90 days there's no
8 response, the County is relieved of the obligation
9 of entering into an agreement with those parties.
10 We believe that that is reasonable because, to take
11 another position on it, if it were open- ended, if
12 there wasn't a 90 -day timeframe, then, potentially,
13 not only the County but the Town, who is going to
14 be a party to that agreement, could wait for
15 whatever length of time, six months, eight months,
16 and not know who was going to be a party to the
17 agreement, so we had to put a timeframe on it and
18 we wanted to make sure that we defined reasonable
19 by crafting the letter ourselves and giving that
20 letter to the County and saying, "Okay, this is
21 what you've got to send to the tribes and SHPO."
22 MS. ZWICK: Sir, I understand what you
23 explained here, but taking a hypothetical point of
24 view, if one of these organizations, say the
25 Seminole Nation of Oklahoma or Miccosukee of
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1 Florida, refused to agree to a negotiation or step
2 in in any way and object to the park, quote, would
3 that bring any problems for the Town or it just
4 would be a legal matter between the County and the
5 entity that they're trying to enter into the
6 negotiation with them?
7 MR. BAIRD: The time for the tribes, to use
8 them as an example, to have weighed in on their
9 perspective regarding the development of this park
10 were the four public hearings that you conducted,
11 and for them to comment on the impact of the
12 County's proposed development of the park, they
13 chose not to do so at that time. In essence, the
14 Commission gave them a second opportunity to do
15 that by requiring this Memorandum of Agreement, so
16 they do now have a second opportunity to comment.
17 However, if their past behavior is any indication
18 of their future behavior in that regard, it can be
19 expected that they're not going to participate.
20 You may recall from the hearings: There was
21 some correspondence from the Miccosukee and a
22 representative did appear at one of your hearings,
23 but ultimately they never offered a firm position
24 as to how they felt about the development of the
25 park. So, to answer the last part of your
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1 question, I don't think there's any exposure to the
2 Town in terms of any additional litigation or
3 administrative proceedings that one of the tribes
4 or one of the unhappy parties could cause to the
5 Town.
6 MS. ZWICK: Thank you.
7 MAYOR NEWELL: The individual who showed up,
8 was he an authorized representative? I don't
9 recall him being an authorized representative.
10 MR. BAIRD: He was not a member of the tribe.
11 He was sort of an administrative officer or
12 executive director type of person that works for
13 the tribe and he was also the individual who had
14 written a letter that was part of your record.
15 MAYOR NEWELL: Anything else?
16 Continue, please.
17 MR. SUGERMAN: Still at the bottom of page
18 five, we're in subsection lower case "e" now which
19 deals with Condition Number 43. Condition 43 --
20 and, by the way, this is the fifth of the five
21 conditions, so this is the last one they objected
22 to. Condition 43 deals with the perimeter
23 landscaping and the wall, and that perimeter
24 landscaping and the wall were to be -- will -- I'm
25 sorry, will be installed within one year of the
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1 approval of the settlement agreement and a new
2 landscaping plan will be submitted as an exhibit to
3 the settlement agreement, and we have now also
4 added language to the agreement that the eastern
5 boundary of Parcel B, the vacant lot, must have a
6 means of physically restricting vehicular access to
7 that parcel.
8 The Commission might remember that it was
9 Condition 43 that was added on the floor of the
10 Commission chambers during the last hearing at a
11 request of the folks of Boca Highlands, but there
12 was a little bit of confusion or maybe even
13 disagreement as to what that wall should be, if it
14 should be concrete block, if it should be chain
u
15 link with some kind of opaque screening or
16 non - opaque screening, and because we did it on the
17 floor of the Commission Chambers, we didn't have a
18 real good sense of what the wall and the perimeter
19 landscaping should look like. We have now gotten
20 down to the fact that it will be a concrete block
21 wall, it will be no higher than six feet, we even
22 have a landscaping plan, and all of that will be
23 attached to the settlement agreement.
24 The one thing that was added between the
25 second and the third to the last negotiating
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1 session was we also asked specifically for some
2 sort of perimeter fencing on the east side of the
3 western parcel, so that would be the vacant lot up
4 against AlA.
5 MR. SORRELLI: Hold on a second. You lost me.
6 MR. SUGERMAN: All right. We asked at our
7 last negotiation session with the County that they
8 also provide some kind of perimeter protection for
9 the vacant parcel, which is the west parcel, and
10 provide it on the east side which is up against
11 AlA, and we were holding out for a fence and we
12 wanted to have a real nice decorative fence. The
13 County's response to our wanting to have a real
14 nice decorative fence was, "You're asking us to
15 sink lots and lots of money into a project," as
16 we'll find out in a few minutes, "probably won't
17 get built," so they resisted spending a lot of
18 money putting up a nice decorative fence against
19 AlA and instead they came back with language which
20 says they will install a means of physically
21 restricting vehicular access to that parcel.
22 That's the best we could get out of them. So I'm
23 not sure we can expect -- I think we proposed one
24 of those split rail fences. I'm not sure we can
25 expect that out of them. I think the best we can
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u 1 get is we're going to leave it in their hands to
2 install a means of physically restricting vehicular
3 access. The good news is we'll get to see it
4 because they have got to tell us what they're going
5 to do and that will be attached to the agreement in
6 what's called Exhibit C.
7 MR. SLINEY: We felt that was important
8 because of the complaints at the hearings that UPS
9 trucks or whatever just go over this, so we wanted
10 to have a method of blocking that happen. And as
11 Phil sales, we'll see what is on the exhibit and
12 the plan. And I understand the County's point of
13 view of not wanting to sink a lot of money into
14 that and so we agreed to that.
15 MAYOR NEWELL: The police cars parking there
16 and talking, the Commissioners all hear that from
17 everyone.
18 MR. SUGERMAN: All the more reason why we
19 would like them to restrict vehicular access to the
20 western parcel.
21 MAYOR NEWELL: Any questions on this?
22 MR. SUGERMAN: There are a couple more
23 paragraphs on the top of page six that deal with
24 the wall, the perimeter landscaping, and
25 restricting access. I don't think I need to go
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1 into anymore detail.
2 And then, sub F on page six is kind of the
3 defining moment for allowing the settlement to take
4 place. It says, "The Development Order will be
5 amended to allow for completion of all conditions
6 of approval within two years following the date of
7 the County's notice of intent to resume development
8 consistent with the intent of Article II, Section
9 30- 21(g)(2)(b)" of the Town's code, "except that
10 Conditions 20, 22 and 43," which are all the
11 landscape, the cleanup, the early stuff, that
12 "shall be completed within one year of the
13 execution of the Settlement Agreement."
14 Now, there's been a new wrinkle that came up
15 only during our last negotiating session with them
16 and it begins at the bottom of page six and it is
17 sub two, and why don't I just read it into the
18 record to see if you have any questions. What this
19 section does is, the parties are acknowledging the
20 existence of a property line dispute between Palm
21 Beach County and Boca Highlands Condominium
22 Association regarding the perimeter of the subject
23 property. It goes on to say, "The Town of Highland
24 Beach agrees to extend the deadlines for
25 performance of the requirements of Conditions 20,
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u 1 22 and 43 - -" again, walls and landscaping -- "if
2 litigation is initiated regarding the property line
3 dispute between Palm Beach County and Boca
4 Highlands Condominium Association that prevents the
5 County from meeting the timing requirements of
6 Conditions 20, 22 and 43." Remember, if we hadn't
7 written this agreement, they've got one year to do
8 perimeter landscaping, walls and all the cleanup.
9 It goes on to say, "The time extension may be
10 granted administratively by the building official
11 upon written request by the County." That is, if
12 this litigation becomes protracted and it takes
13 more than a year, they don't want to be bound to
14 have to do the perimeter landscaping and the wall
15 until that litigation is finished, and the reason
16 why they've been -- they put in here that they want
17 this time extension to be granted administratively:
18 because they do not want to have to come back --
19 the County does not want to have to come back and
20 stand before the Commission asking for a further
21 amendment to the conditions of approval, where you
22 would have to go through a very long, arduous
23 public hearing process with notice and all of that,
24 and so they put the language in that if the County
25 and Boca Highlands can get beyond their litigation
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1 and resolve the property dispute, but it takes more
2 than a year, they just want to be able to ask the
3 building official to grant them an extension while
4 that litigation is going on instead of coming back
5 to the Town Commission.
6 MAYOR NEWELL: Why can't they use that as a
7 way to prolong that?
8 In other words, why can't they drag their feet
9 in settling with Boca Highlands and take this thing
10 out for four or five years?
11 MR. SUGERMAN: They could. I believe they
12 could.
13 MR. PAGLIARO: That concerns me, too. I don't
14 understand this. If -- And maybe this is too
U
15 simplistic, but they have the survey. One party
16 says the boundary is not -- we see it as something
17 wrong.
18 I mean, why is this thing being prolonged over
19 something that can be done, I believe, in a
20 reasonable way by surveyors getting out there, see
21 what the issues are. We have the documents in Town
22 Hall with regard to lines. Why is this -- it seems
23 to me that, I agree with the mayor, it's another
24 thing to be dragged on. They've known that there's
25 been a dispute over the property line, both the
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1 County. Why haven't both parties or one of the
2 parties pursued it and say, "Let's get it this out
3 of the way now ?" Maybe you can help me with that.
4 Maybe there's something I don't see in this.
5 MR. SUGERMAN: Do you want an administrative
6 answer or do you want a legal answer?
7 MR. PAGLIARO: All of the above.
8 MR. SLINEY: Let me discuss. This came up at
9 the most recent session we had with them.
10 Apparently, each side, the County and Boca
11 Highlands, have a survey or title insurance or
12 something like that both saying that they own
13 whatever this disputed parcel is. Now, it sounds
14 strange, doesn't it? But that's -- that's what's
15 been represented to us, and that basically is an
16 issue between the two of them. I don't know who
17 has the incentive to settle, if either one. It
18 seems like, you know, Boca Highland is always in
19 the middle of stuff down there. I don't really
20 think the County wants to drag this out. I don't
21 think that that's their intent, but if they
22 can't -- You know, as you say, it sounds sensible:
23 You get surveyors, have them agree on what it is,
24 but apparently that hasn't happened. So, I don't
25 know what else to say.
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1 I just don't get the feeling that they're
2 trying to drag this out, but it was a new wrinkle.
3 It was just brought up at our last session. This
4 was not even in the prior drafts because we didn't
5 know there was a problem between Boca High and the
6 County over this issue.
7 MAYOR NEWELL: Well, the problem I have with
8 what you're saying is, you're saying, well, the
9 people you're talking to right now, today, you
10 don't think are going to drag it out. Those people
11 may be gone tomorrow or next week or next month and
12 we may be dealing with new people who say, "Well,
13 geez, this is a great way for us to drag this out,"
14 ends up making us look bad.
u
15 MR. SLINEY: I can't dispute that. I guess
16 it's like any settlement agreement whether it's a
17 divorce agreement or whatever it is: You look at
18 the whole agreement overall and see whether it has
19 more benefits or problems with it, and I guess,
I
20 sure, I don't dispute that that could be a problem.
21 My opinion in looking over the whole agreement as a
22 whole is what it achieves for the Town and I think
23 one of the reasons the three of us are recommending
24 it, so --
25 MS. ZWICK: Just as a point of information:
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u 1 This question of the boundary line of the property
2 came up very recently as far as Boca Highlands,
3 although it was in the back of their minds earlier.
4 Sometime ago the question came up that people in
5 trucks were using the property, gaining access over
6 the lot because there was nothing to stop them from
7 that open property. If they drove a truck, they
8 could come right through to the driveway in front
9 of Evanton Baye, which is a series of townhouses,
10 and enter any street leading to condos on -- that
11 comprise Boca Highlands. The people at Boca
12 Highlands, I understand, were very upset with this,
13 and since the County was not willing to do anything
14 because there's still a matter of litigation, they
u
15 proposed extending a hedge fence that they had
16 starting at the main entry and running to cover the
17 area behind the townhouse that sits at the corner
18 where you enter, the southern entrance to Boca
19 Highlands, and they wanted to extend -- put the
20 hedge all the way down the entire length of the
21 property to protect entrants. I mean, an
22 individual could still get through at any time but
23 restricting the vehicle entry onto property of Boca
24 Highlands.
25 And I remember somebody talking to me, and I
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1 truly I don't remember who, but it was somebody u
2 from the board or active on the board of directors
3 or governors at Boca Highlands saying, "Well, if we
4 put in the landscaping, what's going to happen when
5 they want to put the fence in ?" And I said, "I
6 don't know. You have to decide that with yourself,
7 but if you think it's going to be protracted, put
8 in the hedges that you want, and, if necessary, you
9 can move them some of them, most of them can
10 survive the move, and, if not, it's only a matter
11 of a few -- you have to move it closer to the
12 street if you are on county property." And,
13 therefore -- and then, shortly thereafter I saw
14 that they did hedge that whole length of property
u
15 and the hedge has grown, it's been the protection
16 that's been used.
17 Now, from what I understanding and what I've
18 heard, only, I've never seen it, the County
19 approached or sent a letter to Boca Highlands
20 instructing them to please remove their hedge in
21 preparation for their putting the concrete block
22 fence up or protection there, and that's when Boca
23 Highlands came up and said, "Well, this is our
24 property. You can put your fence right next to
25 it." And that's the dispute, as Mr. Young
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u 1 indicated in his comments in the open meeting.
2 They believe that they're almost ready for
3 settlement of that dispute, and if that's so, and I
4 don't know what the discussion has been, the County
5 is showing that they are ready to settle something
6 because they do want to go ahead with this. So, I
7 think I can follow the intent that they are
8 following through. They were getting ready to put
9 the fence up. They were not trying to drag their
10 feet. And I don't think that the Boca Highlands
11 wants them to drag their feet either. So --
12 MR. SLINEY: It's in Boca Highlands' interest
13 to settle that so they can get what they really
14 want.
15 MS. ZWICK: Yeah. They want that fence up and
16 that's an important feature. And if you recall, I
17 made the motion in support of their plea. And I
18 assume and I hope that the settlement over this
19 boundary dispute will come to an end very shortly
20 and be out of the way, because I don't think
21 it's -- I don't think it's a major stumbling block.
22 It's a minor irritation.
23 MAYOR NEWELL: All these things up to here
24 have these in a year, within two years, within 90
25 days and everything else. Why can't this also have
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1 an end in a specific amount of time? u
2 MR. SLINEY: I don't -- you know, from my
3 perspective, if it's a true boundary dispute, and I
4 don't know whether it's a really a true boundary
5 dispute or somebody just stuck the hedges there,
6 maybe it's an encroachment, there's no way to -
7 you know, if you had a true boundary dispute, that
8 could go to court and --
9 MAYOR NEWELL: It could go on for years.
10 MR. SLINEY: You know how fast courts operate.
11 You know, they don't operate very fast. So I don't
12 know that I have a definitive solution on that,
13 although --
14 MAYOR NEWELL: Why isn't the solution that
15 they have very limited time?
16 MR. SLINEY: Well, I guess we can
17 counter - propose on that. That's --
18 MAYOR NEWELL: I mean, everything else up
19 until now has been, you know, they throw in a year,
20 but they want, you know 90 days to do this, they
21 want a year to do this, they want two years to do
22 that.
23 MR. SLINEY: My only feeling on that is, it's
24 actually -- I -- I think it's in both of their
25 parties' interest to -- to get the thing resolved.
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u 1 I mean, I don't know that it benefits -- I can
2 understand what you're saying that maybe it's the
3 County's benefit to drag it out so they don't have
4 to do anything. But I don't --
5 MAYOR NEWELL: Absolutely. You're talking to
6 people today you who may not be here.
7 MR. SLINEY: I don't dispute that.
8 MR. SUGERMAN: If I may add to that a couple
9 of things: One, I've talked to both parties about
10 this separately and there is no desire to drag
11 anything out. In fact, both parties want to get
12 the wall up and get the landscaping taken care of
13 quickly. So, my sense, in talking to both parties,
14 is neither of them want to drag the thing out, they
15 want to get it resolved. However, it may take
16 awhile because, as Tom said, they each hold either
17 a surveyor's report, and we may even have heard a
18 deed, that shows they each own a line in different
19 places, a recorded deed. They each have a recorded
20 deed that shows their line is in two different
21 places, so this may take awhile to straighten out.
22 But to more specifically answer the mayor's
23 question as to why everything else has got the 90
24 days or one year, that's because all those
25 timeframes are between the two parties in the
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1 settlement agreement, which is the County and the u
2 Town. Those two parties can control the timeframes
3 between themselves, but in this section we have a
4 third party that neither of us have any control
5 over, so it would be very difficult for us to put a
6 stipulated timeframe on the County when we don't
7 control the behavior of Boca Highlands, and so
8 that's why we thought it was fair and reasonable to
9 let the dispute between those two parties run its
10 course, and that if they can't get the wall and the
11 landscaping installed within one year because the
12 litigation is going on, that instead of having to
13 come back to the Town Commission and reopen the
14 entire development order that the building official
u
15 could just sign off on an extension. Again, we
16 thought that was reasonable and we have no reason
17 to believe that the two parties, that being the
18 County and Boca Highlands, can't resolve this
19 dispute because I believe they both want to.
20 MAYOR NEWELL: Well, I got to tell you: The
21 rest of the Town of Highland Beach about that park,
22 the biggest thing: The citizens of this town don't
23 like the looks of that property on the west side,
24 and all we're doing here is giving them a plaintive
25 to go on forever to do nothing. And this is what I
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u 1 hear from the residents.
2 MR. SUGERMAN: We do run that risk with the
3 language that is presently in the --
4 MAYOR NEWELL: I don't think I can be in favor
5 of this as it is in place. I'm only one person.
6 MR. SORRELLI: Tom, we can't get a date from
7 them? They wouldn't give us a date?
8 MR. SLINEY: Well, in this type of dispute, I
9 don't -- If you have conflicting claims to real
10 estate, there is no way that -- other than we can
11 go back and say that the Commission won't sign it
12 unless you pick a date that -- you know, you've got
13 this amount of time to do it, and we can take it
14 back to them and ask them if they'll agree to that.
u
15 That's an answer to your question. Then they --
16 MR. SORRELLI: I see something out there that
17 I don't like it. What are they thinking?
18 MR. SLINEY: Well, I guess probably the
19 County, who we dealt with, we haven't dealt with
20 Boca High, is saying, "We don't know how long it
21 will take us to resolve this with Boca High."
22 MR. PAGLIARO: May I ask another question,
23 too? With regard to the documents that each
24 claimed that they have surveys that show where the
25 property line is, don't we have -- aren't they on
i
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1 file here in Town Hall? They're not on file.
2 MR. SUGERMAN: No.
3 MR. PAGLIARO: Well, how long do they go back
4 to?
5 MR. SUGERMAN: They have no obligation to file
6 those here. If they're filed anywhere, they're
7 filed with the county clerk. We don't file deeds
8 here.
9 MAYOR NEWELL: And even if they did or we had
10 copies of them, our interpretation of it is
11 meaningless, correct?
12 MR. SUGERMAN: Correct.
13 MR. SLINEY: It's certainly possible that
14 there can be a real boundary error. I mean,
15 surveyors are human. You know, that property was
16 subdivided a number of times down there. You know,
17 they may have to do quitclaim deeds back and forth,
18 I don't know. That's how normally you solve it is
19 when you get a resolution from a survey standpoint
20 and then you resolve by transfer of deed one way or
21 the other, so I -- that's my best answer.
22 MR. PAGLIARO: If this is going to be a sticky
23 issue, isn't there some way that we can say, "Boca
24 Highlands, County, resolve this issue. Get
25 whomever it is we can get, surveyor or whatever,
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1 take a look at both those surveys, do the due
2 diligence with regard to checking, back checking,
3 and then get somebody in there to do what has to be
4 done to resolve it." It's either Boca Highlands or
5 it's not Boca Highlands, it's the County's.
6 MAYOR NEWELL: The only one who is going to
7 get in there and resolve it is a judge.
8 MR. SUGERMAN: Well, let me add this since
9 we're in closed door session and this won't come
10 out until after this is settled. Again in talking
11 to both parties, this really isn't a dispute over
12 four feet of a line here or there. What this
13 really is a dispute about is who's going to pay for
14 the moving of a water meter that's in this location
u
15 and there's a sewer line that goes here, there's
16 also a couple of other irrigation devices, I think
17 the irrigation heads need to be moved, too, is what
18 it comes down to.
19 MR. PAGLIARO: Pettiness.
20 MR. SUGERMAN: Well, it depends on who -- you
21 know, which side of fence you're on as to the
22 pettiness.
23 Again, in talking to both parties, I think
24 they're going to work it out. There's probably
25 30 -- this is a wild guess because nobody's told
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1 me -- 30 or 40 thousand dollars of moving stuff u
2 here to get this resolved. And until one or the
3 other party blinks as to who is going to pay for
4 moving that stuff, we're out in left field, you
5 know. So -- and I'm not a party to those
6 negotiations. You know, I just -- I keep on
7 talking to folks. That's what I understand the
8 problem is. I don't know if the County's going to
9 step up and say, "Okay, we'll move everything,
10 we'll pay for it," or Boca Highlands says, "Split
11 it with us," I don't know. I'm not really the --
12 I'm not in the negotiation, but that's what's going
13 on here. And, so I have a sense they're going to
14 work it out. There's no reason for them to drag
u
15 their feet. They will work it out, I think.
16 MR. SLINEY: I have a --
17 MAYOR NEWELL: -- (inaudible) what somebody
18 thinks.
19 MR. SLINEY: Well, I have a comment as what
20 you could do. I mean, we'll go through the whole
21 agreement and we'll find areas that you have
22 problems with. I mean, you can always put this
23 agreement off until they resolve their issue,
24 that's one way of handling it, and you can go back
25 to the County and say, "We're not comfortable with
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1 that clause. Once you guys -- assuming there's no
2 other issues here, once you guys solve that
3 problem, we'll pick it up and move it forward
4 again." That's one way you can do it. So, I think
5 we kind of go through the agreement and find out
6 which areas aren't -- the Town's not happy with,
7 and then we'll go back to the County and say, "the
8 Commission's not happy with the following items."
9 Yeah. Because I don't know how else we can do
10 this. I mean, in that sense, if you're concerned
11 about it, we just --
12 MAYOR NEWELL: Well, you hear three of us.
13 MR. SLINEY: Yeah, that's why I'm saying it.
14 I don't know what language you can put in that the
15 County because -- or -- because they don't know how
16 long it's going to take. So, assuming, like Dale
17 says, they both want to solve, so solve it already
18 and then we'll go back.
19 MAYOR NEWELL: Maybe they need some intensive.
20 MR. PAGLIARO: Just to help me if I may:
21 Dale, when did this issue -- this was a relatively
22 recent issue?
23 MR. SUGERMAN: Well, no. The dispute about
24 the boundary has been there for 20 years.
25 MAYOR NEWELL: Okay. It's been there for 20
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1 years --
2 MR. SUGERMAN: Maybe even longer.
3 MAYOR NEWELL: -- then why should we accept
4 the fact -- and I'm not criticizing your judgment,
5 but why should we accept your judgment that it's
6 going to be settled very shortly?
7 MR. SUGERMAN: Here's why. I'm give you the
8 answer to that question. I believe the County has
9 put on the table a wonderful solution for this
10 commission. And if this commission wants to set
11 this what I believe is a wonderful solution for you
12 aside to wait for them to work out their
13 differences from Boca Highlands, who knows what
14 might get removed from this wonderful solution six
15 months or a year from now because the boundary
16 dispute between two parties does not get resolved.
17 This is a wonderful solution for this commission.
18 MAYOR NEWELL: I have a real problem when a
19 salesman starts telling me that he's got a good
20 product for me today; if I don't buy it today, it
21 may not here tomorrow.
22 MR. SUGERMAN: And if you don't want to hear
23 that from your town manager --
24 MAYOR NEWELL: I don't.
25 MR. SUGERMAN: -- then tell your town manager
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1 to pack up and go away, which he's willing to do.
2 MAYOR NEWELL: We don't take threats either.
3 MR. SUGERMAN: It's not a threat. It's a
4 suggestion. I'm suggesting to you that we've
5 worked this for a year. We've spent lots and lots
6 of time. It has not been easy getting to this
7 point.
8 MAYOR NEWELL: Just a minute. That's your job
9 and we pay both of these individuals.
10 MR. SUGERMAN: I understand that, Mayor. All
11 I'm suggesting is --
12 MAYOR NEWELL: No, you're not. You're trying
13 to hold a gun to our head.
14 MR. SUGERMAN: All right. I'll sit and be
15 quiet and answer your questions rather than giving
16 my opinion. If my opinion is not invited, I won't
17 give it.
18 MAYOR NEWELL: Your opinion is always invited,
19 but don't except us to just accept because it's
20 your opinion. We have opinions, too.
21 MR. SUGERMAN: I was not asking you to accept
22 it. I was putting it out on the table.
23 MAYOR NEWELL: No, you were telling us you
24 spent all this time and all this negotiations and
25 it was all going to waste and we should cave
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1 because of that.
2 MR. SUGERMAN: I didn't say it was going to
3 waste, nor did I suggest you should cave in.
4 MR. SORRELLI: I'd like to hear the man. I
5 would like to hear him.
6 MAYOR NEWELL: He should (inaudible) --
7 MR. SUGERMAN: I think I'm done because I've
8 lost my train of thought. They were not prepared
9 remarks. I was speaking from my heart and my mind
10 and I've lost my concentration.
11 MR. PAGLIARO: I'd like you to go back, if you
12 can gather your thoughts, because I liked what I
13 was hearing in terms of that this may be a way in
14 which to move the County and Boca Highlands to make
15 a decision that would be helpful to all parties
16 concerned. Primarily the party that I'm concerned
17 about is the Town of Highland Beach. So if you
18 could kind of run that by us again, if you will.
19 MR. SUGERMAN: Well, okay. Mr. Sliney
20 suggested here is a way you can deal with the issue
21 of discomfort by the Commission about leaving this
22 open -ended until those two parties settle their
23 dispute. He suggested that you set all of this
24 aside, put it on hold until they settle their
25 dispute, and then we'll pick it back up again. And
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45
1 I've heard a couple "I like that ideas," I saw a
2 couple of heads shaking "yes." Well, I just want
3 the Commission to think broader than just one
4 option and I was throwing another option out there,
5 and my option was, be careful what you ask for or
6 what you wish, because I believe this is a great
7 package. I won't comment about how much time or
8 effort was spent in getting it to you. I believe
9 it's a great package.
10 If you set it aside until they work out their
11 dispute, which may be six months, it might be six
12 weeks, six months or six years, and this package
13 sits on the sidelines, things change. The County
14 commissioners change. Offers of settlement might
15 get withdrawn. I'm just suggesting to the
16 Commission: Keep your eyes and ears open that if
17 we set this aside for whatever period of time, you
18 may not enjoy it as an offer in the future. That
19 was my comment.
20 MR. SLINEY: Let me pick up on that.
21 MAYOR NEWELL: The only one I heard made that
22 suggestion was the town attorney. I didn't hear
23 anybody else agreeing to that.
24 MR. SUGERMAN: I heard two agreements and I
25 saw one head nodding yes.
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46
1 MR. SLINEY: Well, let me pick it up. As I
2 said maybe 15 or 20 minutes ago, it's like a
3 divorce settlement: There may be things in here
4 you don't like. And I said we had -- three of us
5 think, and I agree with what Dale said, this is
6 a -- we think overall a favorable agreement, okay?
7 We can't guarantee everything. I think that
8 the political situation in the County has changed.
9 I think they have come to some realities that, one,
10 they really don't have the money to do this. Who
11 represents this district and his or her attitude
12 makes a lot of difference. The previous occupant
13 of District Four, I believe, has a different
14 attitude than the present occupant of the
u
15 Commission in District Four. So, just like
16 people's terms are up on this commission or any
17 other commission, I agree, things can change.
18 We can't -- This is the present situation that
19 basically allows this matter to be postponed, as
20 we'll see, for at least ten years, and a park may
21 never be built. And -- so I think that if that's
22 the goal, then the ultimate goal is to basically
23 postpone this for at least ten years. And there's
24 a provision in here that we got out, and we'll
25 discuss later, basically saying if they don't
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1 comply with the timeframes in this agreement, the
2 development order will be null and void, okay?
3 They want to have a provision in there, which
4 we got out, that basically says if they can't build
5 it, then we have to agree to buy it. We thought
6 that would be a terrible provision. We wouldn't
7 agree to that and that's not in there.
8 Because the County has an investment in this
9 property, whether we like it or not, they have an
10 investment and they have to protect their citizens
11 as far as they can to get something out of the
12 property if they don't ultimately do it. They kind
13 of gave away, in my opinion, a good card to the
14 Town.
15 So, you all may find things in here that you
16 don't like. The issue is, do you like the overall
17 settlement or not? That's how I look at it. So,
18 those are my comments.
19 MS. TRINLEY: I would just like to remind
20 everyone that we have no sway over the actions of
21 Boca Highlands. There's no way we can get involved
22 in their business, so that's a very important key
23 to this.
24 MAYOR NEWELL: Any other questions, comments?
25 Let's move on.
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1 MR. SUGERMAN: We're still on page seven, but
2 we're in subsection three now called Project
3 Postponement. And this is another one of the key
4 items to the settlement agreement. I won't read
5 it, you probably already read it, but basically
6 what subparagraph three says is that the County
7 agrees not to proceed with developing the park
8 except for the compliance for Conditions 20, 22, 24
9 and 43, which is again landscaping, signage,
10 perimeter walls, those sort of things, and they
11 will not proceed for a period of ten years from the
12 date of the adoption of the amended development
13 order. At the end of five years of that ten -year
14 period, they will give us a status report as to
15 what they're planning and what they think they're
16 going to do, and the status report is for
17 information purposes only, but shall, at a minimum,
18 include what actions the County has taken to
19 increase beach access at other beach parks in the
20 District, which is the whole premise of why they're
21 moving forward with entering into the settlement
22 agreement.
23 MAYOR NEWELL: Questions?
24 You three are in agreement that ten years is
25 the best we can do?
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u 1 MR. BAIRD: Yes.
2 MR. SLINEY: Yes.
3 MR. SUGERMAN: Yes. Which leads to sub four
4 on the bottom of page seven. The County has asked
5 for the right to extend the postponement at its
6 sole option for two additional periods of five
7 years each for a maximum postponement of up to 20
8 years. And, more specifically, kind of reiterate
9 the question that the Mayor had, we went in asking
10 for 20 years, that's what we attempted to get from
11 the County. The County staff told us in response
12 they could not sell that to their administration
13 and, in particular, to their elected officials.
14 Postponing 20 years was just too long of a horizon
u
15 for them, and so what they did was they countered
16 and said, "Okay, here's how we can get you to 20
17 years. Guarantee ten at a minimum, and, at our
18 option, depending on the economics ten years from
19 now, cash flow, how much beach access we've been
20 able to develop elsewhere, we, the County will make
21 the decision as to whether or not we want to
22 postpone this in two more increments of five
23 years," and they could, so in the end, we could get
24 20 years, but the first five additional and the
25 second five additional are at their sole
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1 discretion. Okay?
2 Over on page eight, sub eight, paragraph five,
3 it's just pretty simple, straightforward. If the
4 County fails to provide written of its intent to
5 either use the time extensions provided for in the
6 agreement or to resume development at the end of
7 the abatement period, the development order shall
8 be deemed null and void. This is the you know what
9 or get off the pot clause. They can't drag their
10 feet. They have to tell us what they're going to
11 do.
12 MR. SLINEY: This is the one I mentioned
13 before. The County, in my opinion, gave up a good
14 card because they -- Okay, let's say they don't
15 develop the property, they still own it. If they
16 want to make -- for every reason they don't want to
17 develop it for 20 years, they're going to make us
18 responsible for it and to either rezone it to
19 something they wanted or sell it or -- we're not
20 responsible for anything now. If they don't
21 develop it, not our fault, they still own it, it's
22 their problem. So that was the key thing that we
23 got out and they gave that up.
24 MR. SORRELLI: I like that.
25 MR. SUGERMAN: Okay. Continuing on page
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u 1 eight, paragraph six, what this one says is that
2 once it's agreed to, the development order,
3 including the stipulated settlement agreement, will
4 remain in full force and effect throughout the
5 postponement period up to that full 20 years.
6 However, what the County asked for and we agreed to
7 is that the code under which they would develop a
8 park, should they choose to do so, will be the
9 current code, today's code, meaning they enjoy the
10 development order and it's measured against the
11 current code. In their minds that's protection
12 against a future commission coming back and just
13 going crazy with the code and almost, you know,
14 making them jump through all kinds of hoops. We
u
15 are protecting them from what might happen in the
16 future by tying the current code provision to the
17 stipulated settlement agreement and the development
18 order. Okay?
19 MAYOR NEWELL: Any questions?
20 MR. SUGERMAN: The bottom of page eight,
21 paragraph seven, this just says that they are
22 allowed to place two signs on the property, one on
23 the west parcel and one on the east parcel, and
24 it's a -- those signs are depicted in an exhibit
25 which are attached to the agreement, and we've
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52
1 actually already seen the signs and they're fairly
2 nondescript signs.
3 The top of page nine, paragraph eight, this is
4 the paragraph that says the County shall be
5 responsible for maintaining the subject property
6 including specifically the wall and any landscaping
7 placed on the west parcel during the abatement
8 period. So if they abate for 20 years, they're
9 responsible for maintaining the parcel for 20
10 years.
11 There's also a provision that within one year
12 of the effective date of the amended development
13 order, they shall clear and grub the west parcel,
14 they're going to remove the existing paving and
15 they're going to grade the perimeter landscape
16 buffers and the balance of the site as provided for
17 in an exhibit, and that's Exhibit D. They're also
18 going to seed the site with grass. We are not
19 asking them to install any permanent irrigation
20 system.
21 MS. TRINLEY: Doesn't that west property
22 contain a mangrove?
23 MR. SUGERMAN: It does. The west property on
24 the north end.
25 MS. TRINLEY: Right.
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53
N%-101 1 MR. SUGERMAN: And it is part of the proposed
2 development. It's really a drainage basin and it's
3 supposed -- it will remain a natural area.
4 MS. TRINLEY: So they won't do anything do it?
5 MR. SUGERMAN: They will maintain it, which
6 means if there's native vegetation in there,
7 they'll maintain the native vegetation. If exotics
8 or weeds move into it, they will remove the exotics
9 and the weeds, but it will be maintained in its
10 natural state.
11 MS. TRINLEY: Shouldn't that be mentioned?
12 MR. SUGERMAN: Actually, it's on the site
13 plan, and I brought it with me in case anybody
14 wants to look at it, but, yes, that wetland area is
u
15 marked on the site plan and it even says something
16 to the effect that it's -- whatever. Let me get it
17 and I'll answer your question directly.
18 When I left the room during Mr. Yacht's
19 presentation, I went back and got this because I
20 had a feeling this question might come up.
21 So, it's designated as wetland area. It's
22 called the Undisturbed Wetland Habitat, and so
23 they're responsible for maintaining it as an
24 undisturbed wetland habitat and there are standards
25 for that.
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54
1 MS. TRINLEY: Thank you.
2 MR. BAIRD: This also dealt with your
3 conditions 24 and 25. In 24, they have to make a
4 request to the environmental agencies to remove the
5 exotics and to enhance the vegetat -- native
6 vegetation. And in your condition 25, they're
7 required to record a conservation easement which
8 will require that property to forever be maintained
9 as a conservation area.
10 MS. TRINLEY: Thank you.
11 MAYOR NEWELL: I don't know about the rest of
12 the Commission, but that --
13 MR. PAGLIARO: Speak up.
14 MAYOR NEWELL: The site of that -- The
15 residents have always complained to me about the
16 ugliness of that northern end and how it looks like
17 a jungle and -- but I discussed it with the town
18 manager yesterday and he told me the same thing
19 he's telling you today.
20 MR. SUGERMAN: The balance of the stipulated
21 settlement agreement is really legal. I've covered
22 the administrative stuff, so if either of our
23 attorneys want to pick up on paragraph nine and go
24 over any of those, that's legal mumbo - jumbo.
25 MR. SLINEY: Are you all interested in, as the
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u 1 town manager says, the legal mumbo - jumbo? I don't
2 know if that really effects you all substantively.
3 It's basically procedure. I don't know that --
4 MR. SUGERMAN: The biggest issue might be each
5 side covers its own costs.
6 MR. SLINEY: Yeah. I don't know, Tom, do you
7 have an comments on whether there is anything of
8 interest to the Commission?
9 One thing is -- and I'm just -- number four on
10 ten, and I guess this is kind of a substantive
11 entity, procedural issue, is that --
12 MR. SUGERMAN: That's 14 on ten.
13 MR. SLINEY: Yeah. Okay.
14 The parties agree that upon execution of the
u
15 agreement, the County will have commenced
16 development, so they're protecting themselves by
17 the Town claiming that they never started
18 development, and I think that's probably fair. And
19 I don't know, Tom, do you have anything else?
20 MR. BAIRD: The only thing that's important --
21 not the only thing but -- is paragraph nine on page
22 nine. The County's going to dismiss with prejudice
23 their remaining lawsuit, so --
24 MR. SLINEY: And there's only one other thing,
25 and I'll go to page 12, and it's the very last item
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56
1 there. It says, "Nothing in this settlement u
2 agreement entitles Palm Beach County to any
3 particular planning or zoning decision, and nothing
4 in this settlement agreement shall be construed to
5 delegate any of the Town of Highland Beach's
6 governmental authority to Palm Beach County, or
7 vise - versa." Other than that, I'm not sure there's
8 anything legal -wise that would be of interest to
9 you.
10 MR. SORRELLI: So what we have here: The
11 three of you agree this is a great settlement and
12 go for it.
13 MR. SLINEY: That's a fair statement. In
14 other words, like I've said several times before,
15 if you do a settlement agreement, nobody gets
16 everything they want, you know. I think based on,
17 you know, having been part of this whole thing for
18 years and years and years and hearing many public
19 hearings, I think the operative section is the
20 postponement. You know, like I say, it may never
21 get built. I think that's certainly from a town
22 policy standpoint, based on what we've heard for
23 years and years, that probably would be received
24 favorably by the Town's residents.
25 So, like I said, I've done a lot of settlement
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u 1 agreements on a lot of issues, and so you look at
2 the whole -- Does the whole benefit you more than
3 it's a disadvantage to you? That's how I look at
4 it.
5 I think we can certainly go back. Tom has
6 been making a list of things that have been
7 concerns to you. I guess we could go back and have
8 Tom talk with Amy Petrick and see if, on the issues
9 that you've been most concerned about, if they're
10 agreeable to see -- to change those; if not, I
11 agree with Dale. I would go forward with it
12 because I think the environment is correct. If you
13 like the agreement, basically you like what the
14 agreement does, I'd push it forward.
u
15 MAYOR NEWELL: Anything further?
16 MS. TRINLEY: Can Mr. Baird just recap what we
17 didn't agree on?
18 MR. BAIRD: The only item I have that you
19 didn't agree on, or at least there didn't appear to
20 be agreement on it, was at the bottom of page six,
21 paragraph two regarding the property line dispute.
22 It seemed that there were some heads nodding that
23 this should be held off until that dispute was
24 resolved, and our recommendation is that this
25 paragraph is acceptable.
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1 MR. SORRELLI: On the County. u
2 MR. SUGERMAN: No, from us.
3 MR. BAIRD: From us.
4 MR. SUGERMAN: Well, it's acceptable to the
5 County as well because they proposed it.
6 MR. BAIRD: But it's your decision. So if I'm
7 to go back and talk to the County about this
8 document, the one issue that, unless you tell me
9 otherwise, remains at issue is whether paragraph
10 two stays in this document or whether we wait to
11 execute the document until after they --
12 MAYOR NEWELL: I don't think there's anybody
13 here that wants to wait until after. Our question
14 was, everything else prior to that had timeframes
15 on it, six months, nine months, a year, two years
16 or whatever, and the question came up can there be
17 a timeframe put on that before they built the fence
18 and landscaping?
19 MS. TRINLEY: I don't think there can be.
20 MR. BAIRD: And my response to that is that we
21 don't control the timeframe.
22 MS. TRINLEY: Right.
23 MR. BAIRD: The parties to that litigation
24 control the timeframe and a court or appellate
25 court controls that timeframe. We could put an
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59
1 arbitrary timeframe on there and say,
2 "Notwithstanding the existence of the litigation,
3 you've got to do this in two years," but, you know,
4 either the County's going to accept that or they're
5 not going to accept it.
6 MR. SLINEY: Could I go over a couple of
7 procedural issues? Okay. Like, where do we go
8 from here? Okay. And Tom Baird can talk to this
9 more than I can about what the County wants to do
10 from his conversation with Amy Petrick.
11 Your purpose here today is to strategize and
12 try to make a determination of what you want us to
13 do next, okay?
14 Normally, Amy Petrick basically said that she
15 wanted to know what the general feeling was today
16 about the agreement because apparently she wants to
17 take that -- if there was a basic consensus, she
18 wants to take that to the Board of County
19 Commissioners and have them actually vote on it
20 first, and then they would want the Town to vote on
21 it after they had approved it. Is that correct,
22 Tom?
23 MR. BAIRD: Correct.
24 MR. SLINEY: And so, originally Dale had said
25 we could act on it on April the sixth, but
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1 apparently the County doesn't want us to do that.
2 Is that correct, Tom?
3 MR. BAIRD: That's correct.
4 MR. SLINEY: Okay. So, today Tom can go back
5 I guess with one of two messages: One, the
6 agreement as a whole is acceptable to the County
7 and she should arrange to put that on an agenda for
8 the County to approve it; or, two, the agreement is
9 acceptable except for the part that Tom Baird just
10 read and that she would like -- that the Commission
11 would like her to go back to her clients and see if
12 we could get some other language. That's where I
13 see we are today. I don't know if anybody else has
14 any comment.
15 MR. SUGERMAN: I think you're right on.
16 MAYOR NEWELL: Well, I think four of the
17 commissioners agree that it's acceptable. I mean,
18 not to put words in your mouth, but that's the
19 impression I'm getting.
20 MR. SLINEY: So basically of the Commission,
21 we could go back and saying there's a consensus
22 that we would like to go forward with the agreement
23 and that the County should do what they want to do
24 procedurally and approval it and then advise us
25 that they have approved it and then we would
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u 1 schedule a public hearing for the Town to review it
2 and formally accept it in public. Is that kind of
3 the consensus?
4 MS. TRINLEY: Yes.
5 MS. ZWICK: Yes.
6 MR. SORRELLI: Yes.
7 MAYOR NEWELL: The only word that I would
8 change in there: "A majority of the Commission
9 have accepted it."
10 MR. SLINEY: Okay. However. Whatever.
11 Because we can't vote. You can't tell me -- you
12 can't raise your hand and say, "I'm in favor of
13 it," so we just can take the strategy back to --
14 and probably Tom would do that. Is that fair?
u
15 Anybody else got any comment on that as far as --
16 did I say that correctly?
17 MR. BAIRD: Yes, you did. Mayor, if I may,
18 the last comment I would have on that is that if
19 the optimistic reports that we have heard about a
20 settlement between the County and Boca Highlands is
21 imminent, then it could well be before you actually
22 vote on this settlement agreement that that
23 paragraph will become moot.
24 MR. SLINEY: And I would say, unless anybody
25 else has any comments, I guess we could adjourn the
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HEARING March 17, 2010
62
1 private session and then go into a public session u
2 and then basically you would adjourn that because
3 you have nothing to discuss in the public session.
4 MAYOR NEWELL: Well, we have the
5 administrative oath of office --
6 MR. SLINEY: Well, I don't mean that --
7 MAYOR NEWELL: And then we also have reports
8 of Town Commission --
9 MR. SLINEY: I misspoke.
10 MAYOR NEWELL: -- and we have the public
11 reports.
12 MR. SLINEY: Right. What I meant was, on this
13 issue we have nothing to report.
14 MAYOR NEWELL: No.
15 MR. SLINEY: I didn't mean to slight
16 Commissioner Trinley.
17 MS. TRINLEY: You better not.
18 MAYOR NEWELL: Not only did you slight her,
19 you slighted us.
20 MS. TRINLEY: Now, will I remain in this seat
21 or do I go where (inaudible) --
22 MR. SUGERMAN: You remain in that seat.
23 MAYOR NEWELL: The Town Clerk could call you
24 down there.
25 MS. TRINLEY: Which seat do I take? Is that
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HEARING March 17, 2010
63
1 right?
2 MAYOR NEWELL: And can I call a ten minute
3 recess?
4 MR. PAGLIARO: May I ask a question?
5 MAYOR NEWELL: No. Yes. Go ahead. You
6 forgot the question.
7 MR. PAGLIARO: No. I'm trying to think of how
8 I word this. Is there a consensus between the
9 three of you, and this is from what I was hearing
10 today. We all know that Mrs. Milani has been in
11 contact with each of us.
12 MAYOR NEWELL: She has not been in contact
13 with me.
14 MR. PAGLIARO: I'm not going to go there.
15 MAYOR NEWELL: She tried to contact me.
16 MR. PAGLIARO: Now, my point is this. I'm
17 just thinking in terms of -- I'm not going to get
18 into the heads of the County and speculate, but
19 they obviously have agreed here they will not go
20 this far (inaudible) down the road. Now, we all
21 know the County may have reason and there may be
22 reasons and I'm not going to try and speculate, but
23 do you have any sense, has Mrs. Milani, do you
24 know, has Mrs. Milani made any overtures to the
25 County at all? She's made overtures to us, which
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64
u 1 she's talking to the wrong party because the County
2 is who she should be talking to. Do you have any
3 idea whether she's done that or not?
4 MR. SLINEY: I personally do not, no, what
5 she's been doing.
6 MAYOR NEWELL: In my opinion, we should not be
7 talking to Mrs. Milani.
8 MR. PAGLIARO: No, I agree with that. That's
9 not where I'm going.
10 MS. TRINLEY: Right now it's none of our
11 business.
12 MR. SLINEY: We can't control what she may do
13 if the County and the Town come to an agreement.
14 We have no control over that.
15 MR. PAGLIARO: No, I understand that.
16 MS. TRINLEY: She's not part of the equation
17 as we speak.
18 MAYOR NEWELL: And I think you just -- I don't
19 want to say deteriorate the situation. You make
20 the situation worse if we accept communication from
21 her and discuss the subject at all. I may be wrong
22 on that, but do the attorneys want to make a
23 comment on that?
24 MR. SLINEY: Well, I would say this. You're
25 under -- obviously whatever they want to file is a
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u 1 public record we're obligated to take, but we're
2 not obligated to respond as far as I'm concerned.
3 I mean, people make proposals to government bodies
4 all the time. If the government body is interested
5 in responding, it will respond. If you're not
6 interested in responding, you have no obligation
7 to.
8 MAYOR NEWELL: Okay. But we have one part of
9 the lawsuit that my understanding there's still
10 something open on that. As long as that something
11 is open, I don't think we should be communicating
12 with her.
13 MR. BAIRD: Mayor, I think you're on point
14 because you are on record as saying, by virtue of
u
15 your approval of the development order, that what
16 is appropriate for that property is a park and a
17 park with 43 conditions. And until the County
18 decides to use that property differently, they are
19 authorized to use that park. So entertaining
20 offers by someone else to change the use of that
21 park for residential or whatever purposes seems to
22 me to be not appropriate until at least the
23 litigation is resolved. And if after the
24 resolution of the litigation the County reaches an
25 agreement with Ms. Milani to sell her the property
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HEARING March 17, 2010
66
1 and she wants to come back and try to change the
2 zoning, that's her opportunity as a citizen.
3 MAYOR NEWELL: You know, meeting after meeting
4 after meeting we have said no to Joe Gott in
5 discussing what you said was indicated in
6 litigation, and so I don't see that we should be
7 treating her any differently than we treated him.
8 MR. SLINEY: I agree with what Tom said.
9 MR. SUGERMAN: And I think he said it
10 perfectly. You were right on point.
11 MR. SLINEY: If there's no comment,
12 procedurally here's what I think we should do.
13 Does anybody else want anything else to discuss?
14 Okay. Then I think there should be a motion
15 to adjourn the attorney- client private session, and
16 then after that, you would take a ten minute recess
17 and then you would come back to the public session.
18 MAYOR NEWELL: Do I have a motion saying so?
19 MS. ZWICK: So move.
20 MR. PAGLIARO: Second.
21 MAYOR NEWELL: All in favor say aye.
22 (A chorus of ayes.)
23 MAYOR NEWELL: Ayes carry.
24 (The hearing was concluded at 12:12 p.m.)
25
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HEARING March 17, 2010
67
1 C E R T I F I C A T E
2
3 STATE OF FLORIDA
4 COUNTY OF PALM BEACH
5
6
7 I, Beth Sklar, Professional Reporter, State of
8 Florida at large, certify that I was authorized to and
9 did stenographically report the foregoing proceedings
10 and that the transcript is a true and complete record of
11 my stenographic notes.
12 Dated this 4th day of April, 2010.
13
14
�./
A l
15
B a ofessional 'Rep
16
17 Job #152101
18
19
20
21
22
23
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