2008.08.05_TC_Minutes_Regular•
TOWN OF HIGHLAND BEACH
MINUTES OF TOWN COMMISSION MEETING
REGULAR MEETING
Tuesday, August 5, 2008 1:30 P.M.
Mayor Jim Newill, CPA called the Regular Meeting to order in Commission Chambers at 1:30
P.M.
CALL TO ORDER:
Roll Call: Members present: Mayor Jim Newill, CPA; Vice Mayor Miriam S. Zwick;
Commissioner John J. Sorrelli and Commissioner John J. Pagliaro. Commissioner Doris M.
Trinley was absent due to surgery. Also present: Town Attorney Tom Sliney; Town Manager
Dale S. Sugerman; Town Clerk Beverly M. Brown; and members of the public.
Pledge of Allegiance: The Pledge of Allegiance was given, followed by a moment of silence
• in honor of members of the military, both living and deceased.
Civility Pledge: Town Clerk Brown recited the Civility Pledge for the Commission and
public.
1. ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA
None
2. PUBLIC COMMENTS AND REQUESTS
Harold Ha elg mane - Former Mayor
1) Consent Agenda -Attended the Workshop last week and did not think the renegotiation
of the Manager's contract was put on the Consent Agenda. Nor was the five extra days to
be included in the revised contract. 2) We are losing three department heads. It hurts. I
have information that one individual was coerced into taking the early retirement by threat
of firing. Are we resolving the personnel problem?
Mayor Newill - I thought it was agreed to be put on the Consent Agenda. If one of the
Commissioners is unhappy -they can have it pulled. We cannot deal on hearsay and
secondary comments, only actual facts. Harold Hagelmann -Individual stated that he was
• told to take the package or get fired. You took an oath to uphold the laws -are you getting
Town Commission Minutes
August 5, 2008 Page 2 of 11
• to the root of the problem? Town Attorne. S~v_ - If there is a person who feels they were
aggrieved, there are provisions in the Personnel Policy Handbook to handle the situation.
Tones Ruotolo - 3400 S. Ocean Blvd.
While driving along AlA, I notice that landscapers are blowing debris into the road and
into our drainage system. Can the police stop them and ask them to blow it back on the
property owner's property?
Joe Yucht -Boca Highlands
They blow it away from the grass to dry out, and they are suppose to blow it back after it
dries. My kudos to Attorney Tom Sliney for the article he wrote about the Value
Adjustment Board. Why are we losing four key people all of a sudden? The Commission
should look into it.
Moor Newill - I cannot answer for the rest of the Commission, but it is not my position to
ask employees to tell me their personal business of why they are taking the early package.
If they have a problem, they should come forward. Attorney Sliney - It is not uncommon
to offer early retirement packages, and have department heads accept it.
Stan Novak -Finance Director - I am the person they were speaking about. I was coerced
into taking the early retirement. I came in on a Monday and was told to take it or get fired.
Town Mana eg r Su e~ -Have not talked about this at all by agreement with Mr. Novak
and myself. He is correct. He was going to be terminated a year ago and asked for a
second chance. His performance has not improved. He asked if he could take early
retirement. Initially, I did not agree, but eventually did so. According to the Charter, the
Commission should not get involved in personnel issues. I did not violate the agreement,
Mr. Novak has.
Discussion continued on this matter, with the result being:
MOTION: Commissioner Pa lg iaro moved to have Town Attorney Sliney review all the
papers and report back to the Commission in a timely manner; seconded by Vice Mayor
Zwick.
Discussion: Vice Mayor Zwick stated that early retirement goes into effect September 26t1i,
and this matter should be settled before then.
ROLL CALL:
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Vice Mayor Zwick - Yes
Mayor Newill - Yes
Town Commission Minutes
August 5, 2008 Page 3 of 11
• 3. PRESENTATIONS
Town Clerk Update Report -Beverly Brown, Town Clerk
The Town Clerk's Office assists residents with day to day problems and has on
file numerous county, state and federal forms for the convenience of the residents.
The Clerk's Office maintains files for the Commission and all other boards; serves as
the Town's election official; and is in the process of electronically imaging the Town's
permanent records. The work in this department is not spectacular, but we have the
most contact with the residents. The job varies from day to day.
• On behalf of the Florida Institute of Government, Mayor Newill presented
Commissioner John PagIiaro with a Certificate of Completion of the 2008 Institute
for Elected Officials.
4. BOARDS AND COMIVIITTEES
A) Board Correspondence
• None
B) Board Action Report
• Report read into the record by Town Clerk Brown
• C) Board Vacancies
• Cultural Board
• Beaches & Shores Advisory Board
C) Monthly Board Meetings -read into the record by Town Clerk Brown.
• Town Commission Budget Workshop -Aug. 7~' - 1:30 P.M.
• Beaches & Shores Advisory -Aug. 12th -Regular - 9:30 A.M
• Planning Board -Aug. 13a' -Regular - 9:30 A.M.
• Board of Adjustment -Aug. 19th -Regular- 9:30 A.M.
• Town Commission Budget Workshop -Aug. 19`t' - 4:30 P.M.
• Code Enforcement Board -Aug. 20th -Regular - 9:30 A.M.
• Cultural Advisory -Aug. 28th -Regular - 9:30 A.M.
4. PROPOSED ORDINANCES AND RESOLUTIONS:
A) RESOLUTION N0.08-006 R
A RESOLUTION OF THE TOWN OF HIGHLAND BEACH, FLORIDA
CALLING FOR A REFERENDUM ELECTION REGARDING THE PLEDGE
OF AD VALOREM TAXES TO THE REPAYMENT OF DEBT OF THE
TOWN.
Town Mana e~ e~ - If this Resolution is approved, it would place the topic of
the use of ad valorem taxes to pay water utility debt on the November ballot. The
• questions that would be placed before the voters would be to levy and pledge ad
valorem taxes, up to the principal amount of $8,188,663, in order to pay that debt over
Town Commission Minutes
August 5, 2008 Page 4 of 11
• 20 years. If approved, taxpayers would shoulder the burden of all the outstanding debt
of the utility system. Thereafter, the water rates could be adjusted lower to compensate
for the elimination of principal and interest payments from the Water Fund operating
account.
MOTION: Vice Mayor Zwick moved to adopt Resolution No. 08-006 R; seconded by
Commissioner Sorrelli.
ROLL CALL:
Vice Mayor Zwick - Yes
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Mayor Newill - Yes
Motion carried by a 4-0 vote.
B) RESOLUTION N0.08-007 R
A RESOLUTION OF THE TOWN OF HIGHLAND BEACH, FLORIDA
CALLING FOR A REFERENDUM ELECTION REGARDING THE
PROPOSED CONSTRUCTION OF A REPLACEMENT 10" WATER
TRANSMISSION MAIN ON STATE ROAD AlA AND PLEDGING AD
VALOREM TAXES TO FUND`"TI3E'CONSTRUCTION.
• Town Mana eg r Superman - At the 7/29/08 Workshop, the Commission reviewed the
50% design drawings from our consulting engineer for the 10" water transmission main
replacement project. The engineer's cost opinion showed an anticipated total base bid
of $3.4 million dollars. Putting the project's various alternative bid items into the
estimate (electronic read meters and backflow prevention devices), the 50% estimate
cost opinion and a 7.5% contingency, the total project cost should be $3.94 million
dollars.
MOTION: Vice Mayor Zwick moved to adopt Resolution No. 08-007 R as presented
and approved by Bond Counsel; seconded by Commissioner Sorrelli.
ROLL CALL:
Vice Mayor Zwick - Yes
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Mayor Newill - Yes
Motion carried by a 4-0 vote.
C) ORDINANCE N0.08-0010
. AN ORDINANCE OF THE TOWN OF HIGHLAND BEACH, FLORIDA
ADDING TO THE TOWN CODE, CHAPTER 29 ENTITLED "WATER
Town Commission Minutes
August 5, 2008 Page 5 of 11
• SYSTEM," SECTION 29-25 THRU SECTION 29-31 ENTITLED CROSS
CONNECTION CONTROL PROGRAM," AND PROVIDING FOR AN
EFFECTIVE DATE.
Town Clerk Brown read Ordinance 08-001 O into the Record on first reading.
The second reading and public hearing will beheld on September 2, 2008.
D) ORDINANCE N0.08-002 O
AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF
HIGHLAND BEACH, FLORIDA TO ADOPT A 20-YEAR WATER SUPPLY
WORK PLAN AND TO AMEND THE TOWN COMPREHENSIVE PLAN TO
STRENGTHEN COORDINATION BETWEEN WATER SUPPLY AND
LOCAL LAND USE PLANNING; PROVIDING FOR ADOPTION PURSUANT
TO SECTION 163.3184, FLORIDA STATUTES; PROVIDING FOR
INCLUSION; PROVIDING FOR REPEAL OF CONFLICTS; PROVIDING
FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
Town Mana eg r Su erman - As a public water utility, the Town of Highland Beach has
an obligation to the State of Florida, Palm Beach County, and the South Florida Water
Management District to demonstrate that we have carefully thought out and planned
how we are going to meet the water needs of our customers, while at the same time
insuring that we comply with the overall balance of water resources available here in
• SE Florida. To that end, the Town must adopt both a Water Supply Work Plan, and we
must amend the Town's Comprehensive Plan to insure that we are in compliance with
the Lower East Coast Water Supply Plan Update adopted by the South Florida Water
Management District, Palm Beach County, and the State of Florida. The Ordinance is
being introduced on first reading. We will conduct a public hearing; all speakers will
need to sign in prior to speaking on the proposal; we will then close the public hearing
and continue with the meeting. Once it is passed, we will send it to the Department of
Community Affairs, the South Florida Water Management District and Palm Beach
County, asking them to comment on what we have proposed. At some point in the
future, we will have to adopt a final amendment.
Mayor Newill opened the public hearing on Ordinance No. 08-002 O.
Receiving no comments, the public hearing was closed.
Discussion - No further discussion by the Commission.
6. NEW BUSINESS
A) Authorizing the Town Manager to Advertise for the Position of Chief of Police
• Town Mana eg r Su eg_rman -With the decision by the Town Commission not to invite a
proposal for contract law enforcement services from Palm Beach County Sheriff's Office,
Town Commission Minutes
August 5, 2008 Page 6 of 11
• and the impending September 26`x' retirement of incumbent Chief Angelillo, we will need
to do something about the vacancy created when the Chief leaves. The appointment to the
position of Chief of Police is the responsibility of the Town Commission. I will do
everything to help the Commission,
Discussion:
Commissioner Sorrelli - Do not want to hire from the outside.
Commissioner Pa lg ice- Pursue all possibilities of candidates.
Vice Mavor Zwick -Recommend stay within tri-county/state. Our own should be
considered.
Mavor Newill -Interview anyone qualified internally, but also advertise outside.
Interview everyone who is eligible. Also, some changes need to be made to the job
description.
** Changes to be made to Police Chief Job Description:
1) Certification by the Florida Division of Law Enforcement, or must obtain such
certification within six months of hire.
2) Four years of college level education with a degree from an institution accredited
by the Council for Higher Education Accreditation.
MOTION: made by Commissioner Pa lg iaro that the Town Manager advertise for the
position of Chief of Police, with modifications to the job description and it is
opened to all qualified candidates; seconded by Vice Mayor Zwick.
• ROLL CALL:
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Vice Mayor Zwick - Yes
Mayor Newill - Yes
Motion carried by a 4-0 vote.
Town Mana er Su eg rman - We will make all information available on the website. I
want candidates that can locate the information for themselves rather then sending it to
them.
Since the Chief will be leaving in less than 7 weeks, have contacted the Police Chiefs
Association of Florida to see if they have a professional person who could come to
Highland Beach as a temporary assignment until we hire a new Chief. If the Commission
is interested, will get additional information on the cost associated with this assignment.
Chief Angelillo - It is my opinion that bringing in someone who does not know the Town
for three or four months would be foolish. Recommend that you appoint someone from
within the Police Department.
Town Commission Minutes
• Au£;ust 5, 2008 Page 7 of 11
• Commissioner Pa liaro -Can someone inside serve as interim?
Moor Newill -Would it be discrimination if we did not do a FBI check?
Vice Mayor Zwick -The way I see it, there are two avenues that we can pursue:
1) Hire a Florida retired Police Chief on an interim basis; or 2) Utilize one of our
men from the existing force. If the Chief was ill, he would be replaced from within.
MOTION: made by Vice Mayor Zwick to appoint one of our Sergeants as temporary
Chief until a full time replacement is named; seconded by Commissioner Sorrelli.
ROLL CALL:
Vice Mayor Zwick - Yes
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Mayor Newill - Yes
Motion carried by a 4-0 vote.
A TEN MINUTE RECESS WAS TAKEN AT 3:00 P.M.
MEETING RECONVENED AT 3:10 P.M.
7. MISCELLANEOUS -ITEMS LEFT OVER
• A) Consideration of Purchasing the Town's Employee Health Insurance Coverage
from Blue CrossBlue Shield of Florida Effective September 1, 2008; Dental
Insurance from MetLife Dental and Vision Insurance from VSP Vision Care.
Town Mana eg r Su erman -After the last meeting the Mayor requested that I do a survey
on the vision plan. Due to time restraints, have been unable to come up with an answer.
Mayor Newill -For the last three years, the premium has gone up, but the employee
contribution has not. Mana eg r Sugerman -This is something that we can discuss during
budget deliberations.
MOTION: by Vice Mayor Zwick to purchase Employee Health Coverage through Blue
CrossBlue Shield; Dental Insurance from Metlife Dental; and Vision Insurance from
VSP Vision Care effective September 1, 2008; seconded by Commissioner John Sorrelli.
ROLL CALL:
Vice Mayor Zwick - Yes
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Mayor Newill - Yes
• Motion carried by 4-0 vote.
Town Commission Minutes
August 5, 2008 Page 8 of 11
B) Review of Format and Establishment of a Schedule for the Milani Park Special
Exception Application from Palm Beach County
Town Attorne~liney -The Assistant County Attorney shared her position on the
violation of due process by the Town Commission of Highland Beach. This was received
in my office on August 1, 2008 and I have been on vacation since that time, and have not
had an opportunity to delve into it. She is giving a different opinion than was presented
before the Planning Board, and I need additional time to review it.
MOTION: made by Commissioner Sorrelli to table the Milani Park Special Exception
Application, seconded by Commissioner Pagliaro.
ROLL CALL:
Commissioner Sorrelli - Yes
Commissioner Pagliaro - Yes
Vie Mayor Zwick - Yes
Mayor Newill - Yes
Motion carried by a 4-0 vote.
Amy Petrick -Assistant County Attorney
• Request that my Memorandum be included as part of the record of this meeting. Would
also like to voice my objection to the motion to "Table." The Town Code provides for a
public hearing, but does not give the Commission the authority to table.
Collene Walter - Kilday & Associates
In compliance with Town Code Section 30-12 "Use and Payment of Outside Experts,"
the County acknowledges their obligation, but reserves the right to review these invoices
from outside experts and challenge whether a given expense is reasonable.
8. REPORTS -TOWN COMMISSION
Commissioner Pag_liaro - No Report
Commissioner Sorrelli - Channel 19 has not been working. Town Mana e~ erman -
Recently the Mayor has requested that we broadcast the meetings three nights a week
instead of just Tuesday and Thursday. Comm. Sorrelli -Some of the condos do not get
Comcast so they never see it. Mana er Su~rman - We are working on a program that
they will be able to see the video through the Internet.
Vice Mayor Zwick - Any way to see if the Sun Sentinel can occasionally assign a reporter
or watch the tape? We lack any reporting news. Mana e~ erman -Sometimes we get
• phone calls, and I fill them in.
Town Commission Minutes
August 5, 2008 Page 9 of 11
Mavor Newill - No report.
9) REPORTS -TOWN ATTORNEY
Recently, residents have been voicing their concerns about the bicyclists on AlA. Have
reviewed Chapter 316 of the State Statutes, and the rule is that they can only ride two abreast
on a state road and not interfere with the normal flow of traffic.
Mayor Newill -Chief Angelillo can you respond to the Town Attorney's statement? Chief
An,elillo -The Town Attorney is correct. On Sundays and Tuesdays they come through
50/60 in a group. They are doctors and attorneys and they will not stop. We have issued
citations and made arrests, but it is an ongoing problem. Mayor Newill -Sounds like a mob
rule. What can we do? Sg_t. Lundberg - We are in the early stages of formulating a plan with
the Sheriff's Office. We are going to start video taping the bicyclists. It is also a staffing
issue, as we have a hard time stopping the large groups with a few officers. Commissioner
Sorrelli - We need to actively start stopping the bicyclist. We owe it to our residents.
Mana e~ eg_rman - If the Town Commission will stand behind our police department, they
can become more aggressive not only with the bicyclists but the crosswalk violators and
speeders.
• The Mayor and the Commissioners stated that they all were in agreement to actively support
the police and Town Manager in the enforcement of crosswalk violators, speeders and
bicyclists.
10) REPORTS -TOWN MANAGER
Thursday at 1:30 P.M. will be the first of two budget workshops. Comm. Sorrelli -Are we
going to have slides? Mavor Newill -The previous Manager used slides to make his
presentation. Mana er Su e~ rman - No, we will be working with the budget book.
11) CONSENT AGENDA
Town Attorney S1ineX -Would like to request that Resolution No. 08-005 R be removed
from the Consent Agenda and voted on separately.
MOTION: Commissioner Pa 1~ iaro moved to adopt Resolution No 08-005 R -
AResolution of the Town Commission of the Town of Highland Beach, Florida, relating to
the State Revolving Loan Program, Making Findings, Authorizing the Loan Agreement,
Establishing Pledges Revenues; Designating Authorized Representatives; Providing
Assurance; Providing for Conflicts, Severability and Effective Date; seconded by
• Commissioner Sorrelli.
Town Commission Minutes
. Aus~ust 5, 2008 Page 10 of 11
• ROLL CALL:
Commissioner Pagliaro - Yes
Commissioner Sorrelli - Yes
Vice Mayor Zwick - Yes
Mayor Newill - Yes
Motion carried by a 4-0 Vote.
MOTION: Vice Mayor Zwick moved to approve Items # B & D on the Consent Agenda;
seconded by Commissioner Pagliaro.
B) Approving the Town's 20 Year Water Supply Work Plan
D) Minutes Approval
Workshop Meeting -June 24, 2008
Regular Meeting -July 1, 2008
Motion carried by 4-0 voice vote.
Item # C) - Authorizing the Mayor to Sign Modifications to the Employment
Agreement between the Town and the Town Manager
• Commissioner Sorrelli -Not happy with the revised. contract. I thought we approved a
one-year contract, not athree-year. Are we tying ourselves down? We are removing him
from the pay plan and giving him a car plus insurance and gas.
Town Attorney Sliney -While it is a three-year contract, it is up to the Town Commission
on whether he continues.
Mayor Newill - As an individual involved in a number of businesses, it would not be
prudent to "Table" this item.
Commissioner Pa lg iaro -Correct me if I am wrong -this contract is comparable with
others in the area. It is something I am comfortable with.
MOTION: Vice Mayor Zwick moved to authorize the Mayor to sign the Modified
Employment Agreement between the Town and the Town Manager; seconded by
Commissioner Pa liaro.
ROLL CALL:
Commissioner Pagliaro - Yes
Commissioner Sorrelli - No
Vice Mayor Zwick - Yes
Mayor Newill - Yes
• Motion carries by a 3-1 Vote.
Town Commission Minutes
August 5, 2008 Page 11 of 11
• l~2) PUBLIC COMMENTS AND REQUESTS RELATED TO ITEMS DISCUSSED AT
MEETING
Joe Yucht -Boca Highlands
1) Chief of Police -suggest changing wording to "ability to get it." 2) Bicyclists -
suggest Town issue licenses with a $100 fee. 3) Will members of the public receive a
copy of the budget book prior to the workshop?
Town Mana eg r Su erman - We have the capability of making copies - it is up to the
Commission on whether you want to give these out without a charge.
Mayor Newill - Only the one person in the audience has requested a copy. With a written
request we will provide.
Town Attorney Sliney -The budget is an important item. Do not want to waive the
Town's ability to charge in the future.
Mana er Su eg rman -Five copies will be made available in the Clerk's Office.
13. AD.TOURNMENT
• There being no further business to come before the Commission, Mayor Newill adjourned
the Regular Meeting at 4:20 P.M. upon a MOTION by Vice Mayor Zwick seconded by
Commissioner Sorrelli. ,~ n
APPROVE:
Jim Ne i11, CPA, Mayor Q
Miriam S. Zwick, e Mayor
~/~ ~~~ N ;
•
Denise M. Nieman
County Attorney
Liti$atiion Section
300 North Dixic> Highway. Suite 359
West Palm Beach, FL 33401-4606
(561) 355-2225
suncom: (561) 273-2225
FAX: (561) 355-4234
www.pbcgov.com
^ MEMORANDUM
TO: Tom Sliney, Town Attorney
CC: Town Council Members, Town of Highland Beach
Dale Sugarman, Town Manager
FROM: Amy Taylor Petrick, Assistant County Attorney
DATE: July 31, 2008
RE: Milani Park Application
Palm Beach County This memorandum of law is being provided in response to your request for
Board o€ County additional information on the County's position that it would be a violation of
Commissioners procedural due process for the Highland Beach Town Council to consider
ATa;e L. Greene, cha,rperson substantive presentation on the Milani Park Special Exception A lication at a
PP
Jeff Kooris, Vice Chair workshop prior to convening the official public hearing on the application.
Karen T. Marcus Please note that the County's position is not related to the Town's home rule
Robert J. Kanjian authority; the following analysis would apply whether the applicant was a local
government like the County or whether the applicant was a private citizen. The
Mary McCarty constitution mandates that all.. applicants, regardless of status, are entitled to the
Burt Aaronson procedural due process in a quasi judicial
hearing regardless of the Town's home
Jess R. ;iantamaria .
rule authority.
The Council's consideration of the County's application is aquasi-judicial
hearing.
County Administrator "Local government decisions pertaining to building permits, site plans, special
Robert Weisman zoning exceptions, and other development orders generally are deemed quasi-
judicial in nature..." Webb v. Town Council of Town of Hilliard, 766 So.2d
1241,1243 (Fla. 1St DCA 2000). See also Grace v. Town of Palm Beach, 656
So.2d 945, 946 (Fla. 4t'' DCA 1995)(" zoning decisions, including those
approving or disapproving a request for a variance or a special exception,
'%
t
i resulting from a proceeding in which zoning provisions are applied to a specific
in Equal Oppor
un
ty
A rman'vehfc[ion£mproyer"
property affecting a limited number ofpeople, are quasi judicial in nature.")
printed on recycled paper
• 1'llilani Park Application
~Tuly 31, 2008
~°age 2 of S
Consequently, the County is entitled to a quasi judicial hearing on its special exception permit
application. While courts have made clear that quasi-judicial hearings do not require the full
panoply of judicial formalities found in a regular court proceeding, the case law makes equally
clear that a quasi judicial hearing must comport with minimum procedural due process
requirements, or the action taken at such hearing is void.
A workshop before the official public hearing denies the County procedural due process.
Due process requires, at minimum, that "the parties must be able to present evidence, cross-
examine witnesses, and be informed of all the facts upon which the commission acts." Jennings
v. Dade County, 589 So.2d 1337, 1339 (Fla. 3d DCA 1991). If the County believes that the
decision was made in an arbitrary and capricious manner, that the decision was not supported by
competent, substantial evidence, or that the decision applied incorrect legal standards, the
County is entitled to appeal the decision to the circuit court through a petition for writ of
certiorari.
The problem with the Council's proposal to hold a series of workshops is three-fold: 1) the
workshop format prevents the County from cross-examining witnesses and presenting rebuttal
• testimony on the evidence/testimony provided during the workshops; 2) the workshop format
makes it unclear which facts the commission will consider in making the final decision,
rendering it difficult, if not impossible, for the County to rebut facts adverse to its application;
and 3) the. workshop format interferes with the County's right to petition for writ of certiorari,
because the County's ability to preserve the record in its entirety is hindered.
In the case of Seminole Entertainment, Inc. v. City of Casselberr,~, 811 So.2d 693 (Fla. 5`h DCA
2001), the Court noted with approval the explanation of a treatise writer regarding the quantum
of process required in a quasi judicial setting:
While the tribunal may not be a court or the proceeding strictly judicial, there
must be an orderly and fair procedure. Technical legal rules of evidence and
procedure may be disregarded, but no essential element of a fair trial can be
dispensed with unless waived. The [applicant] must be fully apprised of the
claims against him or her and of the evidence to be considered, and must be given
the opportunity to cross-examine witnesses, to inspect documents and to offer
evidence in explanation or rebuttal. The presiding official should be judicial in
attitude and demeanor and free from prejudgment and from zeal for or against
[the application].. .
>eminole Entertainment, 811 So. 2d at 696 (emphasis added). As the quote above
illustrates, the presentation of evidence without a concomitant right to cross-examine the
• witnesses adducing that evidence is a fundamental violation of procedural due process. It
does not matter that the County has a chance to be heard on some of the evidence; the
• Milani Park Application
July 31, 2008
Page 3 of S
County must be given the right to cross-examine and provide rebuttal on all of the
evidence.
Furthermore, the evidence must be presented at a single hearing (which may be
comprised of many sessions, just as a trial may last several days.) "A quasi judicial
function is characterized by a decision which is made contingent on evidence deduced at
a iudicial-type proceeding." Hirt v. Polk County Bd. of County Com'rs, 578 So.2d 415,
417 (Fla. 2d DCA 1991)(citing De Groot v. Sheffield, 95 So.2d 912 (F1a.1937).
(emphasis added). To have some of the pertinent evidence presented to the ultimate
decision-maker outside of the appropriate "judicial-type proceeding," and to only allow a
:portion of the evidence to be presented subject to the rigors of the quasi judicial
:procedural requirements is patently violative of procedural due process.
In other words, if the Council is going to sit as a quasi judicial body, then everything the
Council hears about the application must be presented within the confines of the quasi-
judicial forum. Just as judges are prohibited from researching matters that will come
'before .them at hearing, quasi judicial bodies should consider only those facts elicited
within the parameters of a properly held hearing. To do otherwise prevents the County
• :from being heard on all the facts considered by the Council as it takes action on the
;application and prevents the reviewing Court from considering whether the Council's
,actions were based on competent, substantial evidence.
:For example, how can the County lodge objections to evidence/testimony presented at a
]rearing not organized as a quasi judicial proceeding? If the County cannot cross-
examine witnesses during a workshop, how can the County advise the. Council and
preserve its record for appeal regarding what it perceives to be the flaws of the elicited
testimony? If evidence is provided in the workshop format, but not at the final hearing,
]low can the County know which items are in controversy and are the appropriate subject
of rebuttal evidence?
furthermore, if evidence is presented in a workshop format before the County presents its
own information, how can the Council possibly apply the burden shifting review
provided for by the case law? As I'm sure you know, the case law indicates that the
County is entitled to the special exception upon an initial showing by the County that its
application complies with Code requirements, unless evidence is presented that shows the
special exception is adverse to the public interest.
• Milani Park Application
July 31, Zoos
Page 4 of S
Town of Highland Beach's Code mandates that a public hearing be scheduled for
consideration of the application and does not authorize pre-hearing workshops.
In addition to the constitutional strictures outlined above, the Town's own Code uses mandatory
language in instructing that, once the Planning Board offers its recommendations, the Town
Council shall hold a public hearing. Section 30-36(d), states,
(d) Town commission. public- hemming. After receiving the planning board's
recommendation, the town commission shall hold a public hearing on the
application for special exception approval.
(Emphasis added.) The word "shall" has been held to be mandatory, rather than permissive.
Consequently, your own Code mandates that the next step in the process is the public hearing for
special exception approval. While your workshop format is a public hearing in the sense that it
is publicly noticed and minutes are taken, it is not a public hearing "for special exception
approval," because the Town Council cannot take action at the workshop and, thus, cannot
consider the matter "for ...approval." Consequently, a workshop does not constitute the public
hearing required by your Code once the Planning Board has provided its recommendation and
. the Code does not authorize the Council to schedule workshop meetings prior to holding "the
public hearing on the application for special exception approval" provided for by the Code.
Therefore, your own Code acknowledges the requirement for a public hearing at which action
can be taken on the special exception application, now that the application has been vetted by the
Planning Board, and the County is entitled to have the Town Council follow its own Code in
processing the application.
Workshops at the Planning Board level.
Finally, I would like to respond to your question as to why the County did not object to the
workshops held by the Planning Board given the County's objection to the Town Council's
proposal to hold workshops. The County vievus the Planning Commission as an advisory board,
rather than a quasi judicial body. Accordingly, the procedural due process rights thwarted by the
workshop format were not attendant at the Planning Board level. The Town Council's role, as a
quasi judicial body empowered to take final action on an application that has been years in
process and cost County taxpayers thousands of dollars is obviously very different, and the
County's failure to object to the Planning Board's workshop format has no impact on the
County's ability to object to the Town Council's present proposal to hold unauthorized
workshops without proper due process protections.
•
• Milani Park Application
,July 31, 2008
Page S of S
In Conclusion
As a practical matter, nothing about the County's request should frustrate the needs of the Town
Council, since the Town can still hear from everyone it wishes to hear from and can take
whatever time it needs through the use of continuances to digest the information and complete
their deliberations - it should simply perform all of its labor within the appropriate quasi judicial
setting.
.As a side note, I would like to make clear that it is not the County's intent to dictate to anyone
the procedure they should follow. The requirements of procedural due process stem from the
Constitution, not the County. Furthermore, the Town Council established their own procedure
through the passage of the Town's Code; the County simply asks that, now that the Town has
instituted a procedure, that procedure be followed as written.
since the additional information provided herein was requested by the Town, I would ask that
this letter be included as part of the record on the County's application. Hopefully, the foregoing
explanations are helpful.. However, if yoa~ have. any c}uestions or. would like to discuss the matter
:further, I would be happy to make myself available to discuss the matter at your convenience. It
• its the County's goal to resolve these issues in a timely fashion, so that the pending application is
not further delayed.
•
Kilday & Associates
Landscape Architects /Planners
1551 Forum Place, Suite 100A
West Palm Beach, Florida 33401
(561) 689-5522 • Fax (561) 689-2592
E-Mail: info@kildayinc.com
August 4, 2008
Honorable Members of the Town Commission
Dale Sugerman, Town Manager
Town of Highland Beach
3614 South Ocean Blvd
Highland Beach, FL 33487
Re: Cam D. MilanF Park
Special Exception Application
Dear Honorable Members of the Town Commission and Mr. Sugerman:
Pursuant to the Office of the Town Manager Interdepartmental Memorandum
issued on July 24, 2008 and discussed in part at the July 29, 2008, Town
Commission Workshop, compliance with Town Code Section 30-12. "Use and
Payment of Outside Experts" was identified as an item for discussion. This item
• was not discussed at that Workshop: meeting and Palm Beach County wishes to
respond to the issue to avoid further delay with the Special Exception
application.
Palm Beach County acknowledges their obligation to pay for the Town's experts
as required by Section 30-12 of the Town Code. Palm Beach County agrees to
this provision, while reserving the right to review invoices from these experts
and challenge whether a given expense is reasonable, as set forth in the Code.
Palm Beach County also reserves the right to challenge this provision of the
Code to the extent this provision or the Town's policy is unconstitutional, either
on its face or as applied.
It is the County's understanding that the Town does not have a set format or
' agreement to implerrrerrt Sect>•on 30-'t2. Therefore, Palm Beach County would
propose an agreement in a form similar to those of other municipalities that
have a cost recovery program such as that anticipated by this Code section. If
directed by Town Commission, Pa{m Beach County will submit an advance
payment of $60,000.00 to the Town that would be debited against, for eligible
expenses of the Town's experts. In accordance with Town's Code, Palm Beach
County requires copies of the invoices from the consultants to verify that the
expense is reasonable and constitutional as well as a simple debit accounting
of the advance payment. Any monies advanced by the County to the Town,
but not required for the payment of the Town's expenses under this Code
•
Letter to Honorable Members of the Town Commission and Dale Sugerman
Cam D. Milani Park Special Exception Application
August 4, 2008
• Page 2
provision, would be returned to the County within 90 days of final action on the
Special Exception application by the Town Commission.
The County will have representatives in attendance at the August 5, 2008 Town
Commission Regular Meeting to discuss the application and the requirements
of Section 30-12. Please contact me or Audrey Wolf, Director, Palm Beach
County Facilities Development & Operations, at (561) 689-5522 or (561) 233-
0204, respectively should you have any questions regarding this letter in
advance of this meeting.
Si erely,
l~~~1~~1
d-~"
Collene W. Walter
Cc: Audrey Wolf, Director, PBC Facilities Development & Operations
Dennis Eshleman, Director, PBC Parks & Recreations
John Chesher, Director, PBC CID
Darrell Lange, Project Manager, PBC CID
Melanie Borkowski, Manager, PBC Facilities Compliance
Amy Petrick, Assistant County Attorney
Lenny Berger, Assistant County Attorney
File
H/:1259.69/correspondencelSugerman_8/4/08 cost recovery
r~