03-17-87SpMtg374
MARCH 17, 1987
A Special Meeting of the City Commission of the City of Delray
Beach, Florida, was called to order by Mayor Doak S. Campbell in the
Commission Chambers at City Hall at 7:00 P.M., Tuesday, March 17, 1987.
Roll call showed:
Present - Commissioner Malcolm T. Bird
Commissioner Richard J. Dougherty
Commissioner Marie Horenburger
Commissioner Jimmy Weatherspoon
Mayor Doak S. Campbell
Absent - None
Also present were - City Manager James L. Pennington and
City Attorney Herbert W.A. Thiele. ~
Mayor Campbell called the meeting to order and announced that
this meeting has been called for the purpose of (1) Considering pending
lawsuit - Marina Delray.
1. Mr. Bird advised he had stated his concerns and what he be-
lieved should be the City's concerns at the meeting last week. During
this past week he had occasion to talk with some people he serves on a
bank board with and asked them if they were faced with a similar kind of
potential loss, how much of the difference between the value of the
property as used and the value without the use they would be willing to
risk. They said probably between 25 and 50 percent depending upon the
strength of the case; he believed the City is looking at a substantial
expense. Mr. Bird stated his only reason for being involved in the suit
has not come to fruition, i.e., information from the Department of
Revenue of the State of Florida which was requested.
Mr. Bird moved to reconsider a continuation of the lawsuit,
seconded by Mr. Weatherspoon. Upon roll call the Commission voted as
follows: Mr. Bird - Yes; Mr. Dougherty - No; Mrs. Horenburger - No; Mr.
Weatherspoon - Yes; Mayor Campbell - No. Said motion FAILED by a 3 to 2
vote.
Before roll call the following discussion was had:
Upon question by Mrs. Horenburger regarding whether the request
for subpoena was the final chance the City had to ask them to produce
those things from the Department of Revenue, the City Attorney replied,
not necessarily. There are hopefully other methods later on that it
could be obtained from other corporate officers. Mrs. Horenburger
stated her position would then be to stand on what was done originally,
pursue that and ask for the proof that they were or were not open for
the 180 days in question; for that reason she could not vote yes on the
motion.
Mr. Dougherty asked the City Attorney if he felt he had done
enough investigation to support the fact that they had exceeded the 180
day tolling period. The City Attorney stated they have citizens who
would be willing to give sworn testimony to the effect that they were
closed for the 180 days, and additionally, it has been their position on
a lawsuit of a nonconforming use lapse nature that the burden is really
on the property owner to show that they have not lost their nonconform-
ing use status; the City's position from the zoning theory standpoint is
all we need to do is show that the current zoning applicable to the
property does not include such a use. The City Attorney outlined
background information regarding the documents furnished and the City's
permitting process during the tolling period. Upon question by Mr.
Dougherty with regard to the fact they were allowed to go back into
operation and would that in any way negate the 180 tolling period talked
about initially, the City Attorney stated Florida case law is pretty
clear on the subject, i.e., if the City issues permits and the permits
should not have been issued, those permits are void. Under the law you
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are deemed to know the law and thus those permits could not have been
properly issued; therefore, you may not rely upon them and the City can
revoke them at any time. There is the possibility you could win the
lawsuit, that is, require that the nonconforming use be lapsed, but also
be required by the court to reimburse them the amount they had expended
in reliance on those permits. Mr. Dougherty asked if the issuance of
these permits would in any way weaken the lawsuit or affect the possible
decision of a court in looking at the first 180 tolling and the City
Attorney advised he would say, no. The City Attorney also stated that
in his best judgment the fact that the receiver reopened the restaurant
would have no affect upon the actual issues of 1982 and 1983.
Mr. Weatherspoon stated for the record that he opposed the
lawsuit because in his opinion the information they were given was too
"iffy"; we could not necessarily prove that they were not opened and
based on the information they furnished, they could not prove they were
opened. He could see no benefit to the City to pursue.
Elizabeth Matthews, 1024 White Drive, read a letter from forme~
Mayor William Young, President of the Beach Property Owners Association
and also President of the condo association of Seagate Towers, adjacent
to the Marina Delray, wherein he expressed his concern with the idea of
not continuing the lawsuit and thereby not protecting the interests of
certain citizens of Delray Beach.
Mrs. Matthews commented that on January 13, 1987, the stipula-
tion before the Commission had its principal thrust of the City abandon-
ing the lawsuit; the majority of three rejected that stipulation. The
stipulation was, in essence, prepared by the City Attorney and modified
many times. In the presence of the Mayor, she asked him why and the
City Attorney advised he had been instructed to do so by Commissioner
Bird and the City Manager. As she reads the City Charter neither has
the authority to do that, nor can the people who represent the residents
who live near the Marina Delray see why the City Attorney should be
working on a stipulation to discharge a lawsuit which the Commission
entered into in good faith and then have him present the stipulation to
the Commission.
At this point the roll was called to the motion.
Mayor Campbell declared the meeting adjourned at 7:24 P.M.
ATTEST:
MAYOR
The undersigned is the City Clerk of. the City of Delray Beach
and that the information provided herein is the minutes of the meeting
of said City Commission of March 17, 1987, which minutes were formally
approved and adopted by the City Commission one/?,. ~;~.
NOTE TO READER:
If the minutes that you have received are not completed as indicated
above, then this means that these are not the official minutes of City
Commission. They will become the official minutes only after they have
been reviewed and approved which may involve some amendments, additions,
or deletions to the minutes as set forth above.
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