The Lake County Board of County Commissioners met in special session on Thursday, November 16, 1995, at 9:00 a.m., in the Board Meeting Room, Administration Building, Tavares, Florida. Commissioners present at the meeting were: Rhonda H. Gerber, Chairman; William "Bill" H. Good, Vice Chairman; Welton G. Cadwell; Catherine C. Hanson; and G. Richard Swartz, Jr. Staff members present were: Sanford A. Minkoff, County Attorney; Sue Whittle, County Manager; Ava Kronz, BCC Office Manager; and Toni M. Riggs, Deputy Clerk.

VESTED RIGHTS CERTIFICATE - Grantham Pit

Mr. Sandy Minkoff, County Attorney, presented the Board with an agenda for the meeting and noted that it had been agreed upon by the attorneys, with the exception that, Items 1 and 2 were not received at the time of the conference, but when the attorneys met by telephone conference, they agreed that Items 3, 4, and 5 would be handled in the order in which they appeared on the agenda.

Mr. Kirk Garber, Attorney for the Granthams, and Mr. Steve Ruta, Attorney for Mr. Joseph Woodnick and Ms. Bonnie Roof, addressed the Board and verified that the documents before the Board were all of the ones that had been filed in their clients' behalf, and noted that other pleadings may be forthcoming.

Mr. Minkoff addressed the first issue, which was a letter that had been received from Mr. Ruta suggesting that Commr. Hanson needed to recuse herself, because he felt there was a conflict of interest. Mr. Minkoff stated that he had previously given her an opinion, in regards to the request for her to recuse herself, wherein the law did not allow anyone to recuse themselves, unless he had a direct conflict of interest, as defined in Florida Statutes, Chapter 112. He stated that the fact that someone may have stated an opinion in a case, and whether someone did or did not have a bias, was not grounds for a County Commissioner to recuse himself, nor was it a requirement that he vote. He noted that he had an Attorney General's Opinion, and District Court cases, which reflected this, and it was clearly the law.

Commr. Hanson stated that this was one of the reasons that she went on record as supporting having a special hearing officer for this case, because it had become a very politically convoluted case. Commr. Hanson stated that she absolutely had no problem rendering an objective opinion in this case.

Commr. Cadwell stated that the Board had earlier discussions about having a hearing officer, and the majority of the Board voted to hear the case. After reviewing the list of documents, he felt these types of items were determinations of law, and he wanted the Board to reconsider having a hearing officer for the case. He felt that both sides would be better served by a hearing officer.

Commr. Hanson stated that, because the issue had already gone this far, the Board needed to go ahead and take action.

Commr. Gerber stated that there were a lot of situations that the Board faced, including the Value Adjustment Board (VAB), when it would be better served with hearing officers, and the Board needed to start considering those very seriously.

Commr. Swartz stated that he felt there were some items that needed to be dealt with by the Board, and there would be a point where it would be appropriate to turn the balance over to a hearing officer. He did not think that Agenda Items 2 and 3 were strictly points of law, and they were interwoven within the County Land Development Regulations (LDRs).

Commr. Hanson noted that she and Commr. Cadwell saw the need for a hearing officer when the Board made a decision to hear the case. Today she felt the Board needed to move forward and resolve some of the matters, based on Mr. Minkoff's recommendations and what was presented to the Board.

Mr. Minkoff explained that, at any point in the proceeding, the Board may send the balance to a hearing officer.

Commr. Gerber explained the procedures that would be followed by the attorneys noting that they would only be allowed to present information over and above what had been included in pleadings.

Mr. Ruta addressed the Board to make a presentation on the Motion to Intervene. Mr. Ruta explained that he was representing Mr. Woodnick and Ms. Roof, and the Yokels who had moved to intervene in the matter. He stated that Mr. and Mrs. Yokel owned a parcel of land that bordered on the Grantham Pit, and that they got their drinking water from a well. Mr. Ruta stated that, under any definition of aggrieved persons, they would qualify as such. He stated that the objection being made by the other party was that Mr. and Mrs. Yokel did not file a Notice of Appeal from the initial October 6, 1995 letter within 30 days. He stated that he agreed with this fact, but that there were no procedures set forth to govern appeals in this matter. He stated that it was well within the Board's discretion to excuse the failure to file within the 30 days in Mr. and Mrs. Yokel's behalf. As reflected in the Motion, they were not attempting to raise any additional issues in this matter, and there would be no prejudice to the other side. He stated that, with no notice provisions in the ordinances, it would seem fair and logical that, with no prejudice to the other side, the failure to file the Notice would be excused by the Board.

Mr. Garber, Attorney representing the Granthams, addressed the Board and stated that the Motion to Intervene was an untimely appeal. He stated that the Yokels were attempting to come into the case as a party one year and one month too late. He further stated that the Yokels had been involved in the case prior to the vesting letter ever being issued. Mr. Garber noted that there was correspondence to Mr. Yokel from the Department of Environmental Protection (DEP) regarding the Grantham Pit; correspondence to Mr. Yokel from the County to Mr. Grantham regarding the Grantham Pit; and the Vesting Certificate was copied to Mr. Yokel. Mr. Garber explained that the County's LDRs gave standing to individuals to come into a case and appeal it, provided they met the 30 day time period, which Mr. Yokel failed to do. If the County allowed the Motion to Intervene without having any law, which would allow an intervention in a vesting appeal, it would be acting in an arbitrary manner. Mr. Garber stated that the Motion to Intervene was alleging a new issue in the case, which was the environmental concerns of a surrounding property owner, and the fact that his well may be contaminated. He stated that there were other means of addressing a contaminated well. He cited Case 594 So. 2d 346, and Case 544 So. 2d 1153, and addressed the appeal letter dated November 1, 1994, which was signed by Mr. Woodnick and Ms. Roof, and addressed to Mr. Pete Wahl, former County Manager. Mr. Garber addressed a letter from Mr. Ruta, which was in response to his request for production, which pointed out that there were no rules or regulations in the County's LDRs that would allow him to request documents and evidence, therefore, he refused to produce such. He felt that the County had consistently taken the position in the past that, if it was not in the LDRs, the County was not going to do it. He expected the Board to take the same position in this case today.

Ms. Cecelia Bonifay, Attorney, addressed the Board and stated that she had filed a Motion in Opposition to Intervene on behalf of Mr. Peter Wahl, the former County Manager, who issued the Vested Rights Certificate, and Mr. Frank Gaylord, the former County Attorney. Ms. Bonifay stated that clearly there was no provision for intervention in the LDRs. She stated that Mr. Ruta was correct that there was no notice required to the Yokels, and there was no notice required, and research had indicated that no county in Florida required notice, because it was not the law of vested rights. She further stated that the Yokels were raising new substantive issues and interjecting new issues. Mr. Garber had noted that there was nothing in the appeal that dealt with environmental problems, or well contamination. Ms. Bonifay stated that there was no law to support the motion for intervention, and such an action would be arbitrary and capricious on behalf of the Board. She stated that this was a discretionary matter and that the case, Grimes vs. Walton County, 591 So. 2d 1091, was directly on point.

Mr. Minkoff agreed with the attorneys that there were no formal rules that had been adopted in the LDRs as to what process to use, and therefore, the County was somewhat limited to looking to the judicial rules and those of Civil Procedure. He stated that the cases and rules that were cited, in the most part, were out of the Rules of Civil Procedure. He read the Intervention Rule to the Board and stated that there was not a timeliness requirement on intervention. He explained that it would be a discretionary act, and the intervenor would come in as a subordinate party, unless the Board allowed them to come in as full party. Mr. Minkoff explained the difference between subordinate party and full party. He stated that he did not feel the Grimes case, that had been cited, was applicable to the case. He stated that the Yokels could not come in now and file an appeal as an independent action, because it would not be timely, however, there was case law that showed, if he was allowed to intervene, that his intervention would relate back to the initial appeal. Mr. Minkoff discussed a case involving a Condominium Association, which he felt was almost identical to this case, where the courts allowed the intervention. He stated that there was case law that allowed the circumvention of the statute of limitations, even though this would be a discretionary decision. Mr. Minkoff noted that this was not an evidentiary hearing today, and the main issue was whether or not the Granthams would be prejudiced. Mr. Minkoff informed the Board that, in the proposal he was directed to write, which was written and was with the Department of Community Affairs (DCA) waiting for comments, it had been provided that the appeals would go directly to court, or they would have to utilize the special master process of the Property Rights Act.

Commr. Swartz agreed that the LDRs were not always completely clear. In this particular case, particularly given the case law by the County Attorney, it would seem that there was justification for allowing the intervention of someone that was an adjacent property owner. He stated that the question of the vesting seemed to evolve around issues such as environmental issues, land use issues, and he was not sure that the mention of well water in the motion would go any further than the original effort to appeal the vested rights, so he was not sure that this created any prejudice.

Mr. Minkoff explained that the only motion before the Board was the Motion to Intervene, so if the Board granted the motion, the Yokels would come in as subordinate parties. He clarified that assuming that the intervenors had standing, this may eliminate the standing objection that had been raised in the case, even as a subordinate party. Mr. Minkoff read to the Board a portion of the 1987 case, Bay Park Towers Condominium Association v. Ross and Associates.

Commr. Swartz made a motion, which was seconded by Commr. Good, to approve the Motion to Intervene filed by James Yokel and Francis Wilson Yokel, based on the advice of the County Attorney that it was an area of discretion, and seeing no prejudice based on the case law that the County Attorney had offered in response to the Board members' questions.

Under discussion, Commr. Hanson stated that she felt strongly that, although this was discretionary, it was an effort to circumvent the requirement of the 30 day time limit for appeal. It would give the Yokels the same standing for an appeal, as though they had filed the appeal, and for this Board to be so meticulous when interpreting the LDRs, to allow this kind of a selective enforcement of the LDRs, she found it to be a real travesty. She stated that there were no requirements for noticing for vesting,

it was obvious that the Yokels had been aware of this issue for a long time. She had a problem interjecting new issues that were not a part of the original appeal.

Commr. Gerber stated that this was not an appeal, but was an intervention. If the Board had been as proficient as it should have been, it would have heard the appeal in a more timely manner than a year later. She stated that, because the Board had postponed the hearing for over a year, it had led to an incumbency on the Board's part to give the ability to individuals to petition their local representatives to be heard.

Commr. Swartz stated that the reason for his motion was related more to the case law that was provided by the County Attorney. The LDRs, in some cases, were silent and did not anticipate such a thing. He stated that the case law, as advised by the County Attorney, indicated that the time limit was not a constraint. Commr. Swartz stated that he had said repeatedly that the LDRs were subordinate to the Comprehensive Plan, and there were places where the LDRs had been inconsistent with the Comprehensive Plan, and that the law says that the Comprehensive Plan carries.

The Chairman called for a vote on the motion. The motion was carried by a 3-2 vote, with Commrs. Hanson and Cadwell voting "no".

Mr. Garber made an objection to the way that the case law was presented by Mr. Minkoff to the Board. He stated that he was not given the opportunity to address the case that had been cited, and he did see the case as being very distinguishable, and he wanted to point this out about a case that involved condominium law.

Ms. Bonifay stated that she would file a motion of opposition, for the record, to Mr. Minkoff's presentation in that he did not feel that the case she cited stood for its proposition. She argued that the attorney's had not being allowed to read the case, and they were not familiar with it, and the opposing attorneys had not been provided with it. She stated that she had filed the motions in a timely manner, and she did not get the same courtesy from the Board's counsel, and this was like a "law by ambush", and she would proceed the best she could, for the record.

Mr. Minkoff interjected and explained how the hearing would have continued, if this had been a court proceeding. He stated that it was inappropriate to suggest that anything had been done improperly by the Board, or his office.

Ms. Bonifay noted that Mr. Minkoff had explained that it was his job to advise the Board, as a law clerk would advise a judge, and she was saying that what was going to become an issue were the necessary parties and necessary witnesses, which were Wahl and Gaylord, and Mr. Minkoff could not serve both parties. She further noted that a judge would not limit each lawyer's time unless it had been previously agreed on by the judge and the lawyers. Ms. Bonifay stated that, because the Board was going to rely on Statute, she felt it was analogous to the Value Adjustment Board proceedings, and the statements on record by Mr. Minkoff clearly supported the need for those extraneous matters that were beyond case law and Statute. She stated that the Board had broadly interpreted the intervention rule on the prior motion to circumvent the LDRs and suggested that there was case law to support this, as well as statutory basis to do so, and therefore, she requested that the Board approve the Motion to Appoint Special Counsel for Pete Wahl and Frank Gaylord.

Mr. Garber pointed out that this would be an adversarial setting, and Mr. Minkoff was here to represent the Board, and he questioned who was representing staff. Mr. Garber explained that Mr. Wahl and Mr. Gaylord were delegated the authority by the Board to make vesting determinations, and they made one for this particular case, and it was now being challenged. He stated that the Statute being cited by both parties, F.S. 194.015, although it was not controlling in this matter, it did address the problem that would be created, if staff was not represented. He further stated that the Board needed to consider this Statute when making its decision and appointing Ms. Bonifay to staff, as well as to Mr. Gaylord and Mr. Wahl, who were County employees when this decision was made.

Mr. Ruta pointed out that Mr. Gaylord and Mr. Wahl were ex-employees of the County, granted they were involved with the decision that was the subject matter of the appeal, but they made their decision in their role as County Manager and County Attorney. Mr. Ruta stated that, if the Office of the County Attorney and the Office of the County Manager, were the ones that needed to be defended at all in this case, or needed to participate in this case, it would be in their official capacity. There had been nothing in the record that showed any individual interest, in lieu of their reputation, which was not being challenged. He explained that F.S. 194.015, which had been cited in support of the motion, talked about the Value Adjustment Board being represented, not individual employees. If the current County Manager, or the current County Attorney, felt that it was necessary, they had the ability to make the request to the Board. Mr. Ruta stated that there was no need for the County to spend County funds to appoint special counsel for former employees when they could still be called as witnesses and present evidence.

Mr. Minkoff explained that the County was considering getting separate counsel for some of the County boards. In this case, the representation would be for the current employees, and certainly would not be for former employees. Mr. Minkoff stated that the County Attorney's Office had been, in the past, on record, and it continued to be on record that the matter should be referred to a special master, which would eliminate the issue. He stated that Mr. Rolon Reed, former County Attorney, and Mr. Gaylord made this recommendation to the Board. He further stated that, if the Board were to get a special master, it would eliminate the problem, because staff could then participate, if the staff decided it would like to participate, which would be a decision that staff would have to make, because they may or may not choose to actively participate in the case. Mr. Minkoff stated that the Value Adjustment Board Statute that was cited, which was similar to the Code Enforcement Board, did not require that there be two attorneys. He stated that, if the Board did not go to a hearing officer, and if the current County Manager, or County Attorney, felt that he needed an additional attorney to represent his interest, at that point he would have to make that decision, and he would have the authority to hire someone. Mr. Minkoff noted that he could not find any case law, and none had been cited by the attorneys, which discussed this issue. He further noted that staff had already implemented, for the next portion of the case, discovery type mechanisms to allow the parties to hear the evidence of the other side, and it did not appear that Mr. Wahl and Mr. Gaylord would be uncooperative at this point, and that they were wanting to participate and testify.

Commr. Hanson stated that she felt very strongly that staff needed representation, and that the Board needed representation.

Commr. Swartz stated that he did not find in the Memorandums of Law that were provided that the citing of the Value Adjustment Board was any basis for providing attorneys for former County employees. He could see no obligation on behalf of the Board to hire attorneys for former County employees who may be called as witnesses in a case which they may have some knowledge.

Discussion occurred regarding the current staff being represented by outside counsel, with it being noted that this issue could be addressed at some other point by the Board's own initiative.

On a motion by Commr. Swartz, seconded by Commr. Good and carried unanimously by a 5-0 vote, the Board approved to deny the Motion to Appoint Special Counsel for Gaylord and Wahl, as indicated in Agenda item Number 3 (Gaylord and Wahl's Motion to Appoint Special Counsel).

RECESS & REASSEMBLY

At 10:23 a.m., the Chairman announced that the Board would take a ten minute recess.

VESTED RIGHTS CERTIFICATE - Grantham Pit (Continued)

Commr. Swartz stated that, setting aside the first couple of issues dealt with by the Board, when getting into the Memorandums of Law from both sides, they would revolve around questions that could be best decided in more of a natural legal setting than with the Commissioners.

On a motion by Commr. Swartz, seconded by Commr. Hanson and carried unanimously by a 5-0 vote, the Board approved to have staff seek a hearing officer, and go through a process that would find a hearing officer that would be acceptable by both sides, and to let this case be heard by this hearing officer.

Mr. Minkoff suggested that the attorneys meet with him after the meeting was adjourned, in order to determine how quickly a hearing officer could be found to hear the case.

There being no further business to be brought to the attention of the Board, the meeting adjourned at 10:43 a.m.

RHONDA H. GERBER, CHAIRMAN

ATTEST:

JAMES C. WATKINS, CLERK

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