CITYOF SARASOTA Planning and Development Division Development Services Department MINUTES OF THE SPECIAL MEETING OF THE PLANNING BOARD/LOCAL PLANNING AGENCY June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Planning Board Eileen Normile, Chair Members Present: Damien Blumetti, Vice Chair Members Patrick Gannon, David Morriss, Kathy Kelley Ohlrich Planning Board Members Absent: City Staff Present: Mike Connolly, Deputy City Attorney Steven R. Cover, Planning Director, Planning Department Timothy Litchet, Director, Development Services Gretchen M. Schneider, General Manager, Development Services Lucia Panica, Chief Planner, Development Services Larry Murphy, Building Official Miles Larsen, Manager, Public Broadcasting Karen Grassett, Senior Planning Technician I. CALL MEETING TO ORDER AND ROLL CALL II. CHANGES TO THE ORDER OF THE DAY 6:03:05 P.M. Secretary Cover discussed possible public hearing dates for the upcoming Marie Selby Gardens Master Plan development applications, stating July 22, 2019 was being considered with an alternative being placing the applications on the July 10, 2019 regular meeting agenda. Secretary Cover stated if the applications were placed on the July 10th regular meeting agenda, the plan was to start the meeting at 1:30 pm with the regular agenda items then the Selby hearings would begin at 6:00 pm, and noted the proposed dates/t times had not been confirmed with the applicants. PB Member Ohlrich stated she was not available during the afternoon of July 10th, PB Member Gannon stated he would not be available on July 22nd, Discussion ensued regarding possibly holding the public hearings during September 2019. Secretary Cover stated he would look at dates in September. III. LAND USE ADMINISTRATION PUBLIC HEARINGS NOTICE TO THE PUBLIC: At this time anyone wishing to speak at the following public hearings willl be required to take an oath. (Time limitations will be established by the Planning Board.) 6:04:55 P.M. A. Reading oft the Pledge of Conduct Planning Director Cover [as Secretary of the Board] read the pledge of conduct. Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 2 of 7 B. Quasi-udicinl Public Hearings 1. Epoch Residences (605 S Gulfstream Avenue): Appeal Application No. 19-APP-05, appealing an administrative decision made by the Department of Development Services involving property located at 605 S Gulfstream Avenue, for the project known as the Epoch Residences. Appellants are appealing the approval of an Administrative Site Plan for an 18-story multi-family condominium building in the Downtown Bayfront (DTB) zone district with 23 residential units. (Lucia Panica, Chief Planner) 6:05:09 P.M. PB Member Ohlrich made a motion to continue the public hearing to a specified date with a date certain by which all materials from the applicant and appellants shall be received by the Planning Department and all documents, motions and materials related to the continued hearing shall be sent to the PB members from the Planning Department, and requested a second for the sake of discussion. PB Member Morriss seconded the motion. Discussion ensued regarding the number of emails received, the fact PB Member Ohlrich did not receive many of the emails due to a typographical error in her email address, and the need to have all: related documents provided in an orderly fashion. Attorney Connolly stated before the PB addressed the motion they needed to hear from both affected parties, the applicant: S attorney Mr. Lincoln and the 22 appellants represented by Mr. Lobeck. Discussion ensued regarding the amount of written materials received within the past one to 1 12 days (some within 15 minutes of the hearing); the unreasonableness of expecting the PB Members to read, digest and understand that amount of information in such a short timeframe; taking a break sO the PB members could review the recently submitted information; disregarding the written materials and relying on the verbal discussions to be the record; and the need to have the written materials in order to understand the presentations. 6:11:50 P.M. Attorney Lobeck, representing the appellants, stated he would not object to continuing the hearing assuming the expert witness would be available; discussed the documentation/writen materials he had submitted, stating he did his best to provide the information in a timely manner; stated the misspelling in PB Member Olrich's email address was what caused her to not receive many of the documents; and stated the appellant's due process would be violated if the public hearing was to proceed this evening. 6:15:36 P.M. Attorney Lincoln, representing the applicants, provided some context to the reason for delays, noting this is the first time an appeal has been submitted under the Downtown Code and therefore the procedures were not clear; stated the City Attorney did not issue his memorandum laying out the procedures until the afternoon of May 28th; said the motions that he filed within the last few days were filed because they dealt with issues that directly impacted the proceedings and evidence and he didn't think it would be fair to wait and bring the issues up during the public hearing; apologized for the error in PB Member Ohlrich's email address; noted the submittal of the motions in advance would Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 30 of7 assist the City Attorney in advising the PB Members appropriately; said any delay would be problematic for the applicants; and stated he thinks the public hearing should proceed. Attorney Lobeck responded stating the fact Deputy City Attorney Connolly may seek to give the PB: Members direction as to the merits of some of the aspects of the motions makes it even more important that he have time to review Attorney Lobeck's responses to the motions. 6:20:45 P.M. Attorney Connolly stated City Attorney Fournier had addressed the Attorney's role in the proceedings in his memorandum; said the City. Attorney's office will not be directing the PB Members in their discussions/ deliberations; noted it is a three step process, the first step being the PB meeting, then the City Commission, then Circuit Court; stated he would offer his opinion after testimony is completed if the PB sO desired; and noted his opinion is non-binding. Discussion ensued regarding the case law referenced in the motions not being provided as backup to the motions; the need to proceed as if a trial VS public hearing; when to continue the public hearing to; the amount of time it will take to discuss the motions VS the standing and affected persons issues; the order the motions should be discussed in; moving forward when there has been insufficient time to review the materials that have been submitted; the purpose and impact of the three motions that were filed; and hearing the motions as a whole or interjecting when/where appropriate during the hearings. PB Chair Normile suggest the motions should be considered in full prior to the public hearing noting the issues would be easier to follow and understand. Discussion ensued regarding the process for determining standing for appellants. Attorney Lincoln stated he was withdrawing his motion to dismiss noting he would instead address the issues at the appropriate time and stated every appellant must be able to establish the legal and factual basis for standing individually in order to participate in the appeal. 6:34:19 P.M. Discussion ensued regarding scheduling. PB Member Ohlrich restated her motion that is on the table. PB Member Morriss added to his second that the materials must also be submitted in an order that is easy to follow. PB Member Ohlrich called the question. PB Chair Normile stated the need to hear from PB Member Gannon and Vice Chair Blumetti. PB Member Gannon stated he too was frustrated; noted dates for continued hearings are hard to come by; and suggested the PBj proceed with thel hearing tonight, completing what they can then continue to another date if necessary. PB Vice Chair Blumetti stated he was ready to move forward noting he has spent a great deal of time reviewing the materials. PB Chair Normile stated she had due process concerns noting all of the materials submitted had not been reviewed; stated if motions or portions of motions are being withdrawn she wants that in writing and to have time to review what is submitted; and called for the vote. PB Vice Chair Blumetti noted there must be a cut-off as to when additional materials can be submitted. Attorney Connolly stated the PB needed to determine the date the item will be continued to and the cut-off date for submittal of materials. PB Chair Normile stated she wanted the PB to vote on the continuance then if that passes vote on a date. PB Member Morriss noted the deadline for submittal of proper Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 4 of 7 and well-organized paperwork needed to part of the motion as well. PB Member Ohlrich stated also need to add that the materials were to be submitted by the Planning Department in its totality. Discussion ensued regarding cutting of email communications; the lack of rules or procedures for submitting materials to the PB; receiving emails from the public; and the need to clarify the email cutoff date applies only to the submittal of additional information from the applicants and/or appellants. 6:44:03 P.M. Attorney Connolly discussed due process, noting there were three parties involved: the applicants, the City, and the appellants; stated if the motion to cutoff submittal of materials passes, the PBMembers cannot control if information is submitted however they can just not read it; and noted it was fundamentally unfair to the three parties involved if the parties cannot submit additional information but citizens can. Discussion ensued regarding when the deadline for submitting additional information should be; establishing a date to consider motions and other preliminary matters; a subsequent date for the evidentiary hearing; and a timeframe for submitting amended motions/responses. Attorney Connolly clarified that the final submission is to be 14 hard copies submitted through Ms. Rivers in the City Auditor & Clerk's Office rather than electronic submissions. After further discussion the PB decided the motion for recusal would be heard tonight after taking a break to allow those PB Members that have not had an opportunity to review Mr. Lobeck's response to review that information. PB Member Ohlrich stated there was still a motion on the table. Discussion ensued regarding what items were going to be heard tonight and what items were to be continued. PB Member Ohlrich stated the presentation of evidence and everything else except the motion for recusal would be continued, while the motion for recusal would be heard tonight. The motion passed 3/2 with PB Member Gannon and Vice Chair Blumetti voting no. Discussion ensued regarding a date to continue the remaining items to. Attorney Lincoln suggested a date to hold a special meeting to address the preliminary issues be established then a subsequent date be determined to hold the evidentiary hearing. Upon further discussion regarding the availability of the PB Members, staff, the applicants, the appellants and the Commission Chambers the PBI by consensus identified June 13, 2019 at 6:00 pm as when the issue of aggrieved person standing for the appellants would be considered, and June 18, 2019 at 5:00 pm as when the evidentiary hearing would be held. The Planning Board took a 10 Minute Break 7:16:16 P.M. Attorney Lincoln discussed his reasoning behind the motion for recusal stating no-one's motivations were being questioned rather it is a matter of structural relationships; stated PB Chair Normile is a Director of the STOP group and as such has a fiduciary duty to that organization; noted the attorney for the appellants in this case is also the attorney for the STOP organization; pointed out that two of the appellants are members of the STOP organization' S advisory committee; stated the STOP organization has political positions that matter to this particular case, in particular their political position that zero lot line development is bad; noted the claims made by the appellants directly align to the STOP Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 5 of 7 organization's Q&A's on their website; said there is an inherent bias that creates an unacceptable prejudice; and stated that under case law if PB Chair Normile was not willing to voluntarily recuse herself then the Planning Board as a whole must vote on the motion to recuse. 7:27:29 P.M. Attorney Lobeck responded stating there is nothing in the code that empowers the Planning Board to disqualify a member; said the two cases cited by Attorney Lincoln do not support his position because those cases pertain to the Administrative Procedures Act that does not apply to the Planning Board; noted one of the cases had been repealed and the other dealt with the right of a person to appeal when a person on a panel is motivated by self-interest; stated the STOP organization has never taken a position on this particular case; noted there is no case law that says an attorney for an organization cannot appear before a board such as the Planning Board; urged PB Chair Normile not to recuse herself; stated PB Vice Chair Blumetti is economically involved in the development business and routinely speaks out in favor of development interests and for those reasons the appellants could seek his recusal however chose not to; said the appellants were concerned about how PB Vice Chair Blumetti would vote on this matter due to those inclinations; stated the fact PB Chair Normile is in favor of changing the code is immaterial to this case; said the appellants and merits of the case would be prejudiced if PB Chair Normile recused herself; and concluded by stating the appellants recommend against the recusal and noting there is no authority to compel her disqualification from the case. 7:36:06 P.M. Attorney Lincoln responded noting Section III-203.B of the City of Sarasota Zoning Code allows for the motion and said the Supreme Court ruled that in absence of a statute that provided for the process of disqualification for bias the person alleging the bias has to put facts in the record and the Board would have to vote on the matter; and stated that is what governs these types of proceedings at a due process level. PB Member Ohlrich called point of order noting PB Chair Normile had not had an opportunity to respond. Attorney Connolly stated Attorney Lincoln has a three-minute timeframe to rebut, noting he thought that would occur after PB Chair Normile had provided her response. Attorney Lobeck objected to the fact he did not have any opportunity for further rebuttal. Attorney Connolly responded that since it is Attorney Lincoln's motion, he gets 1st and last, noting that is how it is done in court. 7:39:34 P.M. PB Chair Normile read her response into the record (a copy of which is attached hereto) stating she agrees the hearing should be free from any bias; noted Florida Statutes do not allow for abstaining from a vote unless there is a conflict of interest; refuted the assertion she had an inherent bias and prejudice; stated STOP has not taken a position on this specific issue; suggested a flurry of emails claiming STOP was the reason for the appeal was an attempt to build a case for recusal; noted Attorney Lobeck has never represented her personally; noted she had recommended her condominium hire Attorney Lincoln in the past; discussed previous court rulings on similar cases; stated there is no room for bias and her personal ethics require nothing less than for her to do justice at all times; and Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 6 of 7 stated she would not be voluntarily recusing herself however would abide by the decision of the Planning Board. 7:48:19 P.M. PB Member Morriss stated he had not seen any evidence of bias while serving on the Planning Board with Ms. Normile; stated the STOP organization is looking for an aspirational code and this project is based on the current code which makes PB Chair Normile uniquely qualified to participate; and stated he would like to make a motion that there is no reason to recuse PB Chair Normile if appropriate. PB Vice Chair Blumetti requested Attorney Connolly's opinion. Attorney Connolly stated it was his opinion based on previous case law that the Planning Board could not vote on the recusal, the decision to recuse was purely PB Chair Normile's decision. Discussion ensued. PB Member Gannon asked Attorney Lobeck if the STOP organization was a party to the appeal. Attorney Lobeck stated is was not. PB Member Ohlrich stated she felt PB Chair Normile was: not motivated by any selfinterests and did not stand to gain financially;and noted PB Chair Normile had stated the decision must be made based on the current code. PB Member Gannon stated PB members serve on various committees, etc. in order to better serve the community and that background allows them to better understand the issues that come before the Planning Board; noted the discussions related to changes to the code that STOP advocates for have been going on for quite some time; and stated he did not see any inherent bias. Attorney Lincoln stated he disagreed with Attorney Connolly's opinion; noted PB Chair Normile acknowledged in her statement that as a Director of STOP she voted for hiring Attorney Lobeck; stated as his client with a fiduciary duty to STOP she and Attorney Lobeck can have confidential communications which is a form of structural bias; and stated that is why he believes PB Chair Normile should recuse herself. PB Chair Normile stated there was a Chinese wall at the STOP organization for any issues that will come before the Planning Board. IV. CITIZEN'S INPUT NOTICE TO' THE PUBLIC: At this time Citizens may address the Planning Board on topics of concern. Items which have been previously discussed at Public Hearings may not be addressed at this time. (A maximum 5- minute time limit.) There was none. V. PRESENTATION OF TOPICS BY STAFF Items presented are informational only (no action taken). Any issue presented that may require future action will be placed on the next available agenda for discussion. There was none. Minutes of the Special Planning Board Meeting June 4, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 7of 7 VI. PRESENTATION OF TOPICS BY PLANNING BOARD Items presented are informational only (no action taken). Any issue presented that may require future action will be placed on the next available agenda for discussion. There was none. VII. ADJOURNMENT The meeting adjourned at 7:55 pm Oanic Steven R. Cover, Planning Director EILEEN W. NORMILE, CHAIR Planning Department Planning Board/Local Planning Agency [Secretary to the Board] RESPONSE TO RECUSAL MOTION- - Eileen Normile--6/4/19 Thank you Mr. Lincoln. You and I agree on one thing: WE WANT THIS HEARINGTO BE FREE FROM ANY BIAS OR PREJUDICE THAT WOULD AFFECT ANY PARTICIPANT'S RIGHTS. As you filed your unexpected motion to recuse at the close of business last night, have not had an opportunity to retain expert counsel for myself or to properly research the topic. One might say that MY due process rights have been affected as a result. But I am an attorney-in a different area of the law-and I will respond as best I can. Florida Statutes 286.012 (which you quote) mandates that members of a governmental body may not abstain from voting UNLESS THERE IS A CONFLICT OF INTEREST. Conflict of interest is further defined as relating to FINANCIAL interests in the outcome of the vote. So since I have no financial interest in today's proceedings, I think we can dispense with 286.012. On to your due process argument. I don'tin any way disagree with your argument that your client has the right to appear before an impartial tribunal. I do disagree with most oft the cases you quote. All cases turn on how the law applies to their unique fact patterns. The fact patterns in Cherry Communications, Ducre V. State or Port Everglades are not in any way similar to today's hearing and are therefore not persuasive. Let's talk about the facts of our case: I refute the assertion that I have "relationships and responsibilities that create inherent bias and prejudice in these proceedings." UNQUOTE. Everyone on this panel has relationships and responsibilities in the Sarasota community that at least partially inform them in their decision-making. We are all volunteers who were appointed by our elected officials because of our qualifications and ability to understand the issues and make rational decisions. Besides our involvement in the community we bring personal qualifications as well-in architecture, law, engineering and government. All of it informs our decisions. One of my outside activities involves a civic non-profit corporation called STOP!. STOP! is basically an aspirational think tank that studies the zoning code and recommends ways to improve it. Notice I said aspirational. STOP! has never taken a stand on individual projects or taken part in opposing them--though we have been asked numerous times to do SO. STOP! has taken NO position on the Epoch. The merits of today's case have never been discussed by STOP! members in my presence. Quite some time ago, I asked STOP! Steering Committee members to remove me from their email chain because of my Planning Board responsibilities. They have done SO. STOP! does have an Advisory Board which meets for breakfast a few times a year. The last time was February 21, 2019. Well before the appeal for the Epoch was filed on April 19, 2019. The Planning Board has received many emails both pro and con from people supporting and opposing the Epoch in the past week. At one point a few days ago there was a sudden flurry of emails from a diverse selection of people each coincidentally claiming STOP! was the reason for the appeal. I would-ifIwere at trial-call that Exhibit A of an attempt to build a case for recusal based on orchestrated innuendo. AS for Mr. Lobeck and his representation of STOP! as an entity on a matter unrelated to this appeal: As I mentioned earlier, I had removed myself from receiving STOP!'s discussion emails prior to his hiring. While I agreed to the hiring of Mr. Lobeck, I was never, a party to any discussions with him nor did 1 receive other communications from him on the STOP! ZTA. He did not and has not ever represented me personally. He and I are business acquaintances only and I do not recall if have ever even spoken to him on the telephone. don't believe I have. Because this is a small city, we necessarily encounter the same people over and over. And that includes the community of land use attorneys--including you, Mr. Lincoln. A: few years ago I recommended to my condominium board that they hire you-Mr. Lincoln--to work on some zoning-related issues in the vicinity ofthe Ritz Carlton Hotel. It is my recollection that my deceased husband spoke to you on the telephone and that you declined as you were already representing an individual at the Ritz Hotel on a related issue. You were successful in prosecuting that issue to completion, solving our problem in the process. So thank you again for that. But please don't expect any special treatment. lam unbiased and fair. In Jennings V. Dade County, the court noted that the "quality of due process required in a quasi-judicial hearing is not the same as that to which a party to full judicial hearing is entitled." Nonetheless; the court continued, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi- judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to he heard. In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts." What is before us today is an appeal brought by a group of citizens of the approval of ap project-in this case the Epoch. The appeal is based on the EXISTING ZONING CODE. Our decision must be based on the here and now and not on what we or STOP! might prefer in the future. There is no room for bias or aspiration in that determination. Personallly, in this, and every hearing I would aim for far more than BASIC fairness. My training as an Executive Assistant Prosecutor mandates that I "DO JUSTICE" at all times. My personal ethics require nothing less. I will not be recusing myself. Of course, will abide by the decision ofthe Planning Board on that issue.