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Minutes 09-17-86MINUTES OF THE SPECIAL CITY C'OUNCIL MEETING HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, WEDNESDAY, SEPTEMBER 17, 1986 AT 7:30 P. M. PRESENT Nick Cassandra, Mayor Carl zimmerman, Vice Mayor Ezell Heater, Councilman Dee zibelli, Councilwoman ABSENT Robert Ferrell, Councilman (Excused) Peter L. Cheney, City Manager Betty S. Boroni, City Clerk Mayor Cassandra called the meeting to order at 4:30 P. M. Rebecca Theim, Sun Sentinel, and Bill Cooper, Palm Beach Post Times, were in the audience. CONSIDER SELECTION OF LEGAL SERVICES FOR TRADEWINDS LITIGATION Discussions with: 4:30 P. M. - Kirk Fri~dland, Esq. 501 South Flagler Drive, Suite 505 West Palm Beach, Florida 33401 Attorney Friedland handed a letter to the Mayor and Council, and said he went to the Courthouse this morning and reviewed the Court file. He read the complaint for certiorari, reviewed the case citations, and statutory citations in the case. Since Attorney Friedland finds this area of law of great interest and is quite familiar with it, he was able to make some preliminary determinations about strategy in the case. A Judge once told Attorney Friedland if he had the facts to pound the f~cts; if he had the law, he should pound the law; if he did not have either, he should pound the table. Attorney Friedland thought he detected a bit of table pound- ing in the complaint that was filed by Tradewinds. When they reach the Trial Judge stage, he did not think the City of Boynton Beach would have to do much table pounding .... Attorney Friedland thought the City had plenty to talk about. Tradewinds has the burden of overturning the City's findings. Attorney Friedland did not get into the actual research of how to handle the case. - 1 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Attorney Friedland has been a lawyer for ten years. He practiced in West Palm Beach at the beginning and has practiced for seven years on his own. Attorney Friedland recently went out on his own and is a sole practitioner. As a sole practitioner, he will be personally responsible for every bit of work on the City's case and will do all of the work himself. As he will be accountable to the Council, he believed in close contact with the client (City Council). Attorney Friedland stated that he will represent the City zealously in the case. Attorney Friedland had roots in Boynton Beach. His parents had the Back Porch Patio Wicker Store on Boynton Beach Boulevard and just retired. His sister lives off of Seacrest and is a nurse at Bethesda Hospital, so Attorney Friedland said he is very familiar with the property. He drives by it two or three times a week, and he knows the City. For four years, Attorney Friedland was on the Lake Worth Zoning Board of Appeals. For the last two years, he was Chairman of that Board. Attorney Friedland is very familiar with zoning issues and matters that involve a high degree of public emotion. He thought this was a case they should approach on strictly legalistic grounds. All of the shout- ing and newspaper articles are now behind the City, and they are now in Court to conduct a case, which is in the nature of an appeal. Having worked on both sides, representing both developers nd Cities, Attorney Friedland said he is very familiar with his type of appellate work. He has handled zoning matters in the Cities of West Palm Beach, Lantana, Lake Worth, and Haverhill, and also before the Palm Beach County Commission and the Town of Palm Beach. Attorney Friedland explained that this is in the nature of an appeal, so there is no new testimony. Citizens will not be asked to present their views to the Court. The Council and Zoning Department will not be asked to present new evi- dence. They will travel strictly on the record that has already been created. It is different than the usual appeal because it will not be heard by the Fourth District Court of Appeals but will be heard by the Trial Judge of the Circuit Court. Attorney Friedland believed it was assigned to Judge Wennet. Because there will be no testimony, City Manager Cheney pointed out that it will give Attorney Friedland a lot of - 2 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 work to understand the issue. He assumed Attorney Friedland would be talking to people in the City. Attorney Friedland expected his first duty would be to sit down with the staff, digest the file, and probably in a Workshop Meeting discuss the issue, various stages of the proceeding, and get a sense of the background and the reasons why. Mayor Cassandra asked if they could go into an Executive session, since this was a litigation problem. City Manager Cheney replied, "No." He confirmed Mayor Cassandra's state- ment that the City's Attorney would have to speak out in ~ublic because the State Legislature causes the City to ~isplay and dispose of their case in public, which makes it difficult. In many cases, a.lawyer may not want to discuss with the Council some of the things that he may be doing and his strategy. Obviously, the other side is not discussing anything that he is going to do. It is difficult for a lawyer and makes a special bond of trust between the Council and the lawyer. If Attorney Friedland discusses it with the City staff, ~ayor Cassandra asked if it would be legal for the staff to pass on his thoughts. City Mana er Chene re lied t · g y p ' hat it Ks not legal for staff members to take this kind of thing ~o Council, to Council, to Council. Mayor Cassandra emphat- ically said he would never suggest that. City Manager Cheney continued that passing it on from one to another does hat. In a case like this, they have to be extremely care- ul they do not do that because of the importance of the issue. Attorney Friedland informed City Manager Cheney that he went to undergraduate school in New Hampshire and graduated from Dartmouth College. He went to law school at the University of Florida. Since there will not be any witnesses, Vice Mayor Zimmerman asked if this would take the form of going to trial on a specified date. Attorney Friedland was confident the Judge will want to hear the oral arguments of the Attorneys on either side, and they will be submitting briefs just as they wpuld if they were in the Fourth District Court of Appeals. Instead of three Judges, they will be talking to one Judge in Circuit Court. · Mayor Cassandra questioned whether there can be an appeal. Attorney Friedland replied that there can be a proceeding beyond that, but it is not a matter of rights. It would be - 3 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 a further petition to a higher level, but they are very rarely granted. Attorney Friedland said a terrible miscarriage of justice must be demonstrated in order to get on to the next appellate stage. He would be very surprised if it would go beyond this level. Assuming tomorrow the plaintiff decides to go on trial, based upon the City's request to have their Attorney removed from this litigation, Mayor Cassandra wondered what the chance would be of the City requesting a postponement so their new Attorney could review the case. Attorney Friedland was confident he would have plenty of time to prepare the case. When the plaintiff filed the case, he filed a complaint and a motion asking the Court to allow additional time to amend and supplement the complaint. They did not think they were in a position where they were ready to give it their best shot initially. Attorney Friedland told the Council that has been the pro- cedure that has been extended and extended. Tomorrow, Trade- winds' amended and supplemental complaints are due. The City has an opportunity to respond. Attorney Friedland believed, under the rules, the City would have at least 20 days. Since the City has been so kind as to grant extension after extension, he expected that Tradewinds would show the City the courtesy of an additional extension for the City's side if the City needed it. Attorney Friedland was not cer- tain the City would need it. Attorney Friedland thought the City would like to get the thing determined quickly and would not want to have any further delay in the matter. He informed Vice Mayor zimmerman that the case number is 86-3661 AP A. "AP" designates an appeal, and it is assigned to Division A. Mayor Cassandra called Mayor Hinsa, Lake Worth, and he gave Attorney Friedland an excellent rating. City Manager Cheney asked Attorney Friedland to describe some of his Court room experiences, and he asked if he had a case like this. Attorney Friedland had several similar cases, and one case was against the City of Delray Beach. He represented a property owner who wanted to build a gas station and convenience store in a place Delray thought would not be a proper place. Attorney Friedland filed a petition similar to what has been filed against the City. The case was settled when the gentleman had an offer he could not refuse, and he made a lot more money when he sold to someone else who did not want to build a gas station. - 4 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Attorney Friedland has handled probably over 100 cases for the City of Lake Worth through their Zoning Board of Appeals. The cases come to the City when someone desires a special exception or a variance. He has presided over those cases over a period of four years. Numerous times, the cases were taken to Court. Since he was Chairman, he worked with the City's ~Attorney in preparing the cases for trial. Attorney Friedland has handled numerous appeals before the Fourth District Court of Appeals and Florida Supreme Court. Before coming here today, Attorney Friedland called Attorney Vance to ask if there was something he should know about. City Attorney Vance gave him several suggestions about the petition that had been filed. Since Attorney Friedland had not gotten into the actual file yet, he had not read the City's PUD Ordinance. In City Attorney Vance's opinion, the Boynton Beach PUD Ordinance is not in the nature of a rezoning but is in the nature of a special exception, which could prove to be an important point in the City's case. Attorney Friedland already had his first meeting with Attorney Vance and wants to have the benefit of any further suggestions Attorney Vance would have in the case. Attorney Friedland Said the leading case in point was called the Role of New Town Case, decided in 1975 in this Circuit in front of now retired Judge MacMillan. It went to the Fourth District Court of Appeals, and the Court handed down an important decision that resulted in Palm Beach County being forced to accept the PUD. Attorney Friedland said the City will learn from that case how to conduct its case. Certain requirements that the Court set down here will be extremely important for the City to follow. The other side knows about this case also, and they will both be trying to use it to their gain. Attorney Friedland told of being newly married in March of last year. As a follow-up to the case Attorney Friedland told about, Vice Mayor Zimmerman said this case also involves zoning of residential to additional commercial, and a change of land use to higher density. He thought the City had a good case. Just because one case came out differently on appeal, he dud not think anyone should feel the City does not have a case. Attorney Friedland said that case was decided ten years ago under a totally different Code. He was pointing out that - 5 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 this was the leading case authority on the subject. By no means was he saying the City had to roll over and play dead. As a matter of fact, there were many things in the case that Attorney Friedland thought would support the City's position. Mayor Cassandra asked how they would notify the Attorneys. City Manager Cheney advised that City Attorney Vance is still the Attorney of record. Whatever he gets, he will forward to City Manager Cheney or anybody else. City Attorney Vance will let the City know when he gets something. At that point, City Manager Cheney thought whoever they hire would look at the case before the next filing and get himself entered as the Attorney of record. The City will have at least 20 days after the 18th. There was more discussion. Attorney Friedland knew the Council would hear from other Attorneys and thought one would be from a very large firm. Now that he is on his own, he stated he was more motivated than ever to do a good job for his clients, and he would give it the best fight he could. THE COUNCIL TOOK A BREAK FROM 4:.55 P. M. UNTIL 5:10 P. M. as the second Attorney had not arrived. 5:10 P. M. - Mark E. Kohl, Esq. Kohl & Mighdoll 2324 South Congress Avenue, Suite 1-D West Palm Beach, Florida 33406 Attorney Kohl explained that his father, Donald P. Kohl, was on his way to the Florida League of Cities, and he was representing him. At this point, Attorney Kohl said their firm is made up of Donald P. Kohl, Preston Mighdoll, Craig Boudreau, and him. Donald Kohl has been practicing since 1963 and has been involved in many lawsuits, some of which individuals on the City Council have been involved. He even sued the City of Boynton Beach once or twice. Donald Kohl was a Councilman in Palm Springs for quite awhile and rose to Vice Mayor. He was also involved with his then wife, Shirley, while she was on the Council. Donald Kohl has been the City Attorney of Palm Springs for nine years, was a Judge for five years, and is a graduate of George Washington University law school. Ohio State was his under graduate school. - 6 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Preston Mighdoll is currently the City Attorney for Green- acres and has been for three years. Greenacres has under- gone drastic changes in their property lines and are under- going tremendous growth problems at this point. One of the big areas they have had problems in has to do with areas that have never been zoned before by the City. Attorney Mighdoll is extremely aware of what is going on as far as zoning is concerned. Donald Kohl asked his son to point out that a good City Attorney keeps his client from getting involved in liti- gation. That is why Palm Springs and Greenacres have not been involved in litigation while Donald Kohl and Preston Mighdoll have been their City Attorneys. Craig Boudreau, another individual with the firm, left the State Attorney's office about a year ago. He had been practicing with the State Attorney for almost a year as both an intern and an Assistant State Attorney. Attorney Kohl noted the agenda had the firm listed as Kohl, Mighdoll, Salnick, and Krischer and advised that Attorneys Michael Salnick and Barry Krischer are no longer associated with their firm. Attorney Boudreau just recently finished handling a writ of certiorari from the Lake Worth Codes Enforcement. It was Attorney Kohl's understanding that the Tradewinds case is a writ of certiorari, and he believed it was to the Circuit C~urt. Attorney Kohl believed the writ of certiorari Attorney Boudreau took was also with the Circuit Court, but he believed they were currently appealing the decision from the Circuit Court to the Fourth District Court of Appeals. A~torney Boudreau is quite involved in that and is familiar with it. Attorney Mighdoll is also familiar with what goes on in those areas, and Attorney Donald Kohl has been doing it for ages. Attorney Mark Kohl was with the State Attorney's office for 3-1/2 years, left them about six months ago, and went with this firm. Criminal law was his major background, and he is making a drastic change. Attorney Kohl has been filling in for Attorneys Mighdoll and Kohl at some of the City Council and Codes Enforcement meetings and is in the process of learning everything from the ground up. Attorney Kohl said the City would not be hiring an indivi- dual like Donald Kohl, Preston Mighdoll, or Mark Kohl. They - 7 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 would be hiring a firm made up of four individuals that work very closely together. The City would not get just the energy of a young man or the experience of an older indivi- dual but a combination of both. Attorney Kohl said Craig Boudreau is 25 or 27 years old, and he is 30 years old. Attorney Kohl told Mayor Cassandra he did not have a chance to look at the case. His firm called City Attorney Vance after their telephone conversation with Mayor Cassandra. City Attorney Vance was willing to talk to them but not about very much. He was willing to tell them where the case was procedurally. Attorney Kohl believed the previous writ of certiorari Tradewinds filed for was dismissed for failure to file a record, but City Attorney Vance would not go very much into the facts of the case. Attorney Kohl was not sure whether Attorney Vance did not know what they were up to or just did not want to waste any time on it. He understood City Attorney Vance was no longer with the City. ayor Cassandra said City Attorney Vance was still with the ity and offering his talents. Attorney Kohl did ~ot know what City Attorney Vance's reasons were, but he was not will- ing to go into any lengthy discussion. Mayor Cassandra called Attorney Kohl's firm yesterday afternoon and said it was OK for them to contact City Attorney Vance. He thought perhaps they got City Attorney Vance just when he was supposed to leave to come here for a Council meeting, and City Attorney Vance'probably did not have time to talk because Mayor Cassandra talked to Attorney Kohl around 3:30 P. M., and City Attorney Vance left his office around 4:00 P. M. Vice Mayor Zimmerman understood there had been some exten- sions of time for the plaintiffs to make various entries and amendments to the complaint. One is running out tomorrow.~ Attorney Kohl said City Attorney Vance indicated that Friday was the deadline date for refiling, and he believed the ttorney for Tradewinds had to have a record along with hatever he files tomorrow. That was the extent of Attorney Kohl's knowledge. ~ttorney Kohl would have gone down and tried to look at the Court file, but he was on one hour call for a trial he has been preparing for. He assured Vice Mayor Zimmerman there was time for a Member of his firm to step on it immediately and said his trial should be over tomorrow afternoon. He would be available over the weekend. - 8 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Attorney Kohl expounded and told the Council he and Attorney Boudrea live in the same town house, and Attorney Boudrea would be available to work with him. Attorney Boudrea represents Duane Owens. Mayor Cassandra asked if Attorney Kohl foresaw a problem, if his firm was picked to represent the City, as far as prepar- ation and as far as the City was concerned, if they decide they do not want another postponement tomorrow. Attorney Kohl did not see a problem because when they finally do file it, the City will have 20 days in which to respond, which is no different than any other case they are involved with. Attorney Kohl assumed the City staff will work with whomever the City hires and said the main problem would be for a member of the City's staff to sit down with them and explain bo them most of the facts behind the case. Once they have the facts, if will be simple for them to sit down, go through the books, do all of the legal research, and draft their response. Vice Mayor Zimmerman questioned whether City Manager Cheney would be doing that or if Carmen Annunziato, Director of lanning, would be involved. City Manager Cheney replied that he would be doing it because he would be here all of next week. Then he would be gone for ten days, but Mr. Annunziato would be doing most of it, has the facts, and has been intimately involved with it. The City will continue to retain its Traffic Consultant. Traffic and the general  ssue of planning were really the two issues, and also, the omprehensive Plan and what it means. Attorney Kohl said the rest of his firm would be back and available on Monday. Mayor Cassandra asked what writ of certiorari means. Attorney Kohl answered that it comes from the Latin phrase, and it means to certify. In old England, you had to figure yourself into a writ or you could not get into Court. One writ available was the writ of certiorari, where the King would order the lower Constable to certify his record and end it to him to review. Here, the Planning and Zoning oard or the City has been asked to send up its records ertaining to this case. Then they will review the decision of, he assumed, the Council or Planning and Zoning Board. As he was not familiar with the facts, Attorney Kohl said it would be whoever Tradewinds claims made an adverse ruling to - 9 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 him. Then they review the record and base their decision on the record. They will not take into account things that are outside of the record. The City can request an oral argument, but if it is not on the record, it does not get considered. That is one of the bad things about a writ of certiorari. The City cannot walk up and start bringing up all kinds of new facts unless those facts exist somewhere in the record. Mayor Cassandra was concerned because if there are no more witnesses and no more facts, it would behoove the City to have a verbatim of all of the minutes. Attorney Kohl replied that may or may not be. One thing the City had to keep in mind was that it was Tradewinds' certiorari. If they did not get the record, the City will have to supplement the record. Mayor Cassandra added, "Verbatim." Attorney Kohl said that would depend. Mayor Cassandra recalled that Tradewinds had a Court Reporter. Attorney Kohl advised that it is Tradewinds' job to get the record up to the Circuit Court. If they do not bring the record up as it is supposed to be, the City can supplement it with what they feel is necessary for it to be a fair and accurate record. He would not try to hide anything if he became involved in this kind of case, but Attorney Kohl said he would not do their job for them. If there is something that would be adverse to the City that Tradewinds did not bother to take up there, he would not send it because that is their job, and he would not do their Attorney's job. Mayor Cassandra asked what would happen if the City loses this type of case, where there are no witnesses involved. He wondered if there would be an appeal for the City. Attorney Kohl answered that the appeals process is limited to one appeal. He pointed out that he was a little unfamiliar with the way it had gone. Attorney Kohl assumed this was an adverse decision by the P&Z Board at one point. Mayor Cassandra thought it was coming from the Council, and he said the Council has the final policy. Attorney Kohl asked if the P&Z Board made an adverse decisionr before it came to the Council. Mayor Cassandra believed the majority was not to approve it. Attorney Kohl was wondering whether the appeal from the P&Z Board was to the Council. From the Council, they were allowed to request that a Superior Court review them, but did not have that as a right. Attorney Kohl told the Council they are not allowed to appeal over and over. As far as the City can go or anybody - 10 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 can go is the Fourth District Court of Appeals, (4th DCA) by right. After that, it is only by the grace of the Court that you are requestinq to review it, that they will review it. Since Tradewinds is there on a writ of certiorari, they can- not go any further unless the Supreme Court lets them. What they do there is file another writ of certiorari with the Supreme Court, and it is a brief, little thing saying why they think the 4th DCA was wrong. Their Attorney will have to spell out a very good argument. The Supreme Court will read this brief, little thing and if they say it may have some merit, they will certify the record from the 4th DCA through a writ of certiorari up to the Florida Supreme Court. Attorney Kohl said there is a very good possibility Tradewinds will not have a right of appeal from this point on or that the City will not have a right of appeal. City Manager Cheney advised that the City Council made the final decision, and Tradewinds took the writ from the City. They asked for the record, and there were a couple of decisions before the record got together. The City is wait- ing for Tradewinds to file their final complaint tomorrow. Attorney Kohl pointed out that he hated to give the City advice or an explanation about a legal status without really having seen the case. City Manager Cheney questioned whether one member of Attorney Kohl's firm would be the key person. Attorney Kohl replied that they would have a liaison between the firm or Council or City. City Manager Cheney commented that the City would have one person they could communicate with and get answers from. Attorney Kohl wanted to be sure the Council was aware that their fee would be $125 an hour for whoever works on the case, whether it would be his father (Donald Kohl) or him. Normally, Donald Kohl charges more, but he indicated to Attorney Kohl that he would go with $125 an hour. There were other comments. Attorney Kohl informed Vice Mayor Zimmerman that the firm used to have six partners and three associates. The Springers split off from the firm almost a year ago. Six months ago, Attorneys Salnick and Krischer split off from Attorneys Donald Kohl and Preston Mighdoll. - 11- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Attorney Kohl gave the Council a business card. Vice Mayor zimmerman asked if there would be an Attorney of record from his firm. Attorney Kohl replied that there would have to be, and they would enter a Praecipe of Appearance. One of them would sign it, but it would be the whole firm. Vice Mayor Zimmerman asked if that would be Donald Kohl. If the firm is called tomorrow, Attorney Kohl said he would go down and sign the Praecipe of Appearance for the firm, and his name will be on there. Any correspondence will be addressed to the firm. They can work with whoever will be the City's liaison. Getting that piece of paper in, saying they are representing the City, is the most important thing, so the City is not without an Attorney for a couple of days. Mayor Cassandra said Tradewinds has asked for postponements. He asked if Attorney Kohl felt he would have any problem getting a postponement for the City, if it is needed. Attorney Kohl did not think he would. A lot of times post- ponements with Civil Law are done onfa nice, telephone call type basis. Attorney Kohl explained and said if they need 4o get a continuance and the other side does not agree to it, they could always move for it and let the Court decide. He did not think there would be a problem, but he was not antici- pating needing a continuance. Attorney Kohl did not like to say that they could stall things, but if stalling was going to help them be better prepared in 30 days, as opposed to 20 days, he would have no objection to trying for a ten day continuance. Attorney Kohl had no intention of stalling litigation because he did not think that was what the Courts were intended for. Mayor Cassandra meant only for preparation. Mayor Cassandra explained that this is a sensitive issue to the City for a multitude of reasons. He called attention to the precedent this particular litigation could set through- out the City and felt an Attorney would look for all the time he could get unless all of the research or facts were in the City's file. Before the evening is up, Mayor Cassandra said the Council hoped to make a decision. As the third Attorney had arrived, Attorney Kohl said he would wait. - 12- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 6:00 P. M. - Charles Schoech, Esq. Mudge, Rose, Guthrie, Alexander & Ferdon 515 North Flagler Drive West Palm Beach Attorney Schoech served as County Attorney for Palm Beach County for approximately 4-1/2 years. Prior to that, he was Assistant County Attorney in charge of zoning, land development, and subdivisions for the County for approxi- mately 2-1/2 years. Attorney Schoech graduated from Valparaiso University's School of Law in 1974, was admitted to the Florida Bar in 1974, and his first position was as Assistant City Attorney for the City of West Palm Beach under then City Attorney Jim Watt. At that time, he handled all of the City's zoning matters, which was for four years. Attorney Schoech has been involved in government law and, specifically, in land development, zoning, and subdivisions for approximately 12 years. Last year, he left the public sector to join the private sector with the dual caPacity of Finance Attorney, representing local governments, and also zoning, real estate, and land development matters. From the time of the call he received yesterday from the City until today, Attorney Schoech did some research into the Tradewinds vs. City of Boynton Beach file. He discovered that the file was not terribly extensive; a complaint has been filed, and several continuances have been granted. It is a typical zoning type of litigation and one which he is v~ry familiar with, having handled those types of cases for the City of West Palm Beach and for Palm Beach County. The one concern Attorney Schoech had was the time element. When an Attorney seeks to represent someone, he must be cDncerned with three areas: (l) Is he competent, capable, and able to handle the particu- lar matter? Attorney Schoech felt that was not a problem in his case because this is the type of law he has been practicing for 12 years. (2) Are there any conflicts? By taking the case, would you be creating a conflict for that client or any other client? For that reason, their firm has a policy that no new clients can be accepted until the review of the current client list is completed to make sure there are no conflicts. (3) If an Attorney does not have time to spend on the case, he would be doing his client a disservice in taking the matter. The Chief Managing Partner of their firm advised Attorney Schoech that by taking the case, he would not be in a conflict situation. Neither would the - 13 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 City or any other clients of the firm. Attorney Schoech was also assured that any matters he had pending could be reassigned so that the time element would not be a problem, and adequate time could be set aside for the handling of the case. Attorney Schoech's normal billing rate is $175 an hour. He proposed that, if the Council was inclined to retain his firm, the matter be split so that some of the research into the legal briefs would be handled by Associates in the West Palm Beach office, which are billed at a lesser rate. The average hourly rate then that the City would be looking at would be $150 an hour, based on a combination of his hourly ~ate and the Associates' hourly rate. The firm is willing  o discuss that issue with the City, but that was the rate hey proposed. Attorney Schoech informed Mayor Cassandra that the firm's main office is in New York City. Approximately 215 Attorneys are in the firm. The bulk of the Attorneys are in the New York office. They have offices in Washington, Los Angeles, Paris, and West Palm Beach. Attorney Schoech is the resident partner in the West Palm Beach office. At the present time, %here are three Attorneys in the West Palm Beac~ office. A fourth partner will be joining Attorney Schoech the 1st of October. An offer has also been extended to a fifth Attorney,  nd they expect him to join the firm in the middle of October, ut he has not yet accepted. Mayor Cassandra remembered Attorney Schoech saying he would have enough time, but he pointed out that he would be pass- ing his workload over to another group, which meant he would be an individual researching, with the possibility of his firm assisting him in West Palm Beach. Attorney Schoech indicated that any work that would be transferred would be of the public finance nature, of which the firm has adequate capabilities. The Managing Partner of the firm assured him there would be absolutely no problem in making those transfers. Up until they opened this office, all of the public finance was done out of the New York office. It is now being done in a combination of the Florida office and the New York office. The eventual plan is for all Florida work to be done out of the Florida office. Attorney Schoech emphasized that there would be no time conflict with the zoning matter. - 14 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Mayor Cassandra inquired whether Attorney Schoech had a chance to look at the file or speak to Attorney Vance. Attorney Schoech spoke to Attorney Vance, and he reiterated his prior statements about what was in the file. He added that a continuance is pending, which he believed was up this week. Mayor Cassandra informed him it would be tomorrow. Unless something is filed, Attorney Schoech stated that matter had to be addressed. Mayor Cassandra asked if Attorney Schoech saw any problem for the City timewise, if his firm was retained. Attorney Schoech did not. Mayor Cassandra asked if he would need more time and said the City recommended more time. Attorney Schoech explained that there are a number of pro- cedures. In order for Tradewinds to go forward, they must file their brief in this litigation. The rules of Court provide a time period, for which he has to file his response. Once Tradewinds has filed, there needs to be additional work ~one in developing the case for the City to ask for a continuation of time or additional time. It is generally an additional ten days for Tradewinds to file their brief. It as difficult for Attorney Schoech to say he would or would ot need that additional time because he did not have time to adeHuately develop the case. Since the complaining party already asked for time, if the City should determine they would need additional time, At.torney Schoech said that should not be a problem. He would hope that the time period specified by the rules would be adequate, and that the case would be of such a nature. Mayor Cassandra said the Plaintiff's Attorney has already requested three postponements. If the Attorney would approach Attorney Schoech tomorrow and ask for another post- ponement, Mayor Cassandra asked if he felt he should extend it, due to professional courtesy. If he would say, "No", Mayor Cassandra wondered what would happen next. Attorney Schoech advised that there were a number of things that could happen. Knowing what he knew about the case right now, his inclination would be not to grant voluntarily any additional time. Three continuances is sufficient time. The Plaintiff/Petitioner would have an ability to go to the Court and ask the Judge to grant that additional time. It would be the Judge's discretion to either grant or deny it. Attorney Schoech would take the position that adequate time has lapsed, and the pleadings should be filed. Obviosly, it - 15 - MINUTES- SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 would depend on the Judge and the arguments made to the Judge as to whether that would happen. Vice Mayor Zimmerman questioned whether Attorney Schoech had knowledge as to the outcome of similar cases. Attorney Schoech answered affirmatively, and added that the Courts are very careful to indicate that each case must stand on its own merits, although other cases are used as a prece- dent. They look at the results from other cases but do not always follow the results. They may also find differences in other cases, which they will distinguish the case pending before them from. Attorney Schoech said this was not an uncommon case. Cities and Counties throughout Florida face these tyHes of cases on a regular basis, and he explained. Councilman Hester asked Attorney Schoech if his expertise was in the planning and zoning areas of the County and of the City of West Palm Beach. Attorney Schoech answered affirma- tively and added that he was the Attorney that represented the Planning, Zoning and Building Departments for Palm Beach County and handled all of the cases such as this that were filed against the County. He became very familiar with the zoning laws in the State of Florida. Vice Mayor zimmerman asked what his success was. Attorney Schoech said the cases were determined on whether or not there was a reasonable basis upon which the Commission based its decision, and whether or not the Court could find, in fact, that the Commission exercised proper discretion and had a reasonnable basis for denying the zoning. Some of the cases he handled were lost. Attorney Schoech recalled a case where, before voting, an elected official asked the audience how many people there were in support or against the petition and announced on the record that he was voting because of the number of people that raised their hands. The Court said that was zoning by referendum, and Attorney Schoech lost. He did not have a 100% success rate, but he did not think that was because of his legal representation. It was, in many cases, the fact circumstances upon which he had to work from. Mayor Cassandra questioned whether Attorney Schoech ever took the other side or represented the developer. Attorney Schoech has represented citizens' groups but not the developer. Vice Mayor zimmerman could see why the developer here has, in the recent past, not wanted any input from the TRB or - 16 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 P&Z Board. That would be not to get it on the record. He had a Court Reporter all of the time for specific reasons, which would be to the City's detriment. Vice Mayor Zimmerman said the reasons are there, but they probably are not on record because their Attorney is "sly as a fox" and has been using it against the City. He has not been per- mitting the P&Z Board or TRB any input. As novices, the City did not always do the best job of establishing a case. Attorney Schoech thought the City's record in this case was sufficient. Obviously, they would have to go on that record. Attorney Schoech said he would present it to the Court, and the Court would make that final decision. His understanding was that the proceedings were recorded. That recording will become the record, and Attorney Schoech said they will use that recording in developing the case. Mayor Cassandra asked if the record was Tradewinds' record, the City's record, or both. Attorney Schoech answered that it is both. City Manager Cheney asked what the Judge would be likely to do in a case like this, if the City is ruled against. He q~estioned whether the Judge 'would be likely to send it back {or rehearing or rule what the zoning should be. Speaking in general terms, Attorney Schoech said generally, assuming they rule against the City (he was not indicating that they may), they will remand the case back to the zoning authority for the zoning authority to make a ruling not inconsistent with the record, as the Judge found it, so it generally comes back to the City. M~yor Cassandra asked what "not inconsistent" meant. Attorney Schoech replied that a number of things are involved. When you are dealing with a PUD, there are conditions that can be imposed upon that zoning approval. The Judge cannot make those impositions, only the zoning authority, so if he finds, for example, that the zoning should have been granted, h~ does not know with what conditions. He will generally s~y he found that the City acted out of the scope of its authority, exceeded its bounds, and, therefore, command the c~se back to them to grant the zoning with appropriate con- ditions. That was an example of what could happen. Vice Mayor Zimmerman informed Attorney Schoech that Trade- w~nds is asking for a change in land use of higher density and conVerting residential to additional commercial. It is not a matter that is all in zoning but is in the area of land use. - 17 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 Attorney Schoech said that is why the Judge will generally not make a final decision for the City. The City must make the decision because the Judge is not charged with the zoning responsibility for the City. He can only determine whether the City acted within the scope of its authority or exceeded its authority. If they exceeded their authority, he so finds and says go back and do it again in the scope of your authority. Otherwise, he becomes the zoning body ulti- mately, which is not what the Court system in the United States is, and Attorney Schoech explained. There was more discussion. Mayor Cassandra told Attorney Schoech the Council was hoping tonight to retain somebody to represent the City for the obvious need of litigation. City Attorney Vance had indi- cated he would transfer his file and not cut off anybody that asks him a question. Mayor Cassandra asked for Attorney Schoech's business card because whoever the Council chooses will have to represent the City tomorrow in Court. Attorney Schoech said zoning cases should not be taken lightly because he has seen many end up substantially more involved than they needed to be. When you start talking about constitutional rights, things can get complex. Consideration of Other Names Mayor Cassandra wondered how long the Council wished to continue the process of other names, and he asked if they wanted to stop here. Councilman Hester thought they should stop here. Vice Mayor Zimmerman felt they had a good choice. Directions to Media In writing their articles, Mayor Cassandra asked the media to inflect that all three Attorneys are competent and capable. It was a decision the Council was going to evaluate, based upon the information given to them. Discussion by Council Vice Mayor Zimmerman asked whether they had any estimate as to price from Attorney Friedland. After discussion, Mayor Cassandra asked Mr. Hunt to call and ask Attorney Friedland what his hourly rate would be. COuncilman Hester thought all three Attorneys were capable, bRt he was looking at the person with the most experience in - 18 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 the zoning area. After listening to them, he felt Attorney Schoech was the best qualified because he has had experience in cases and would be a good representative of the City. Councilman Hester believed Attorney Schoech's 12 years of experience would help. Councilwoman zibelli agreed all three Attorneys were capable but liked the idea that Attorney Friedland had already been at the Courthouse, checked out the file, and had familiarized himself with the area. As Special Counsel for Lake Worth, she felt he would have more day to day zoning type litigation than Attorney Schoech. Attorney Schoech also does financial consulting. There was discussion about Attorney Schoech's experience. Vice Mayor Zimmerman wanted to see if they would get a figure from Attorney Friedland. He imagined the first two they interviewed would be more reasonable than the last, as $150 from the City's average is awful high. Mayor Cassandra brought out that the City has a very important litigation, and he did not think dollars and cents should be the way because it was important for the City to win and not get into a future bind. Councilman Hester understood Attorney Schoech to say his fee was negotiable. Depending on who does the research work, Vice Mayor Zimmerman said Attorney Schoech's fee might vary a little bit. One person very much against the City carry- ing on any litigation because of the cost spoke to him this morning. Vice Mayor Zimmerman said it did not soak in very deep on him, and he expounded. Mayor Cassandra said the Council wanted to make sure they get the best. He was impressed with all three Attorneys and felt confidence in all three that the City has a better than 50/50 chance. Mayor Cassandra found concern with the large- ness of Attorney Schoech's firm. He referred to the $175 and $150 an hour and said, in that respect, he was a little scared off and wondered if the City would get the best effort. When asked that question, Mayor Cassandra recalled Attorney Schoech said he would give the City all of his time. If Attorney Schoech reports to another Executive Board, and they take him off of the case and say to give it to the guy just being hired, Mayor Cassandra said that would worry him. As to Kohl, Mayor Cassandra had the same type of concern, since maybe the low man on the totem pole would get the - 19 - MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 assignment. The motivation of Attorney Friedland impressed him, but that did not mean he was a winner. Attorney Friedland seemed to say he wanted the case; he jumped in and said he thought the City had a good case. Attorney Friedland had also pointed out the same thing the other Attorneys pointed out about the days allocated, the time, etc. Mayor Cassandra said he would be more apt to go to two con- siderations, Kirk Friedland and Kohl, in his first screening process. Schoech might have more experience, but Mayor Cassandra knows Schoech works for a firm. He referred to the three questions Attorney Schoech brought out. Mayor Cassandra questioned who would give that extra mile for the City. Donald Kohl implied on the phone that a full- time Attorney is the wrong way to go, was more interested in becoming the City Attorney, and made his pitch for a retainer. Figuring he will become the City Attorney, Mayor Cassandra felt he would make that extra mile. He was leaning towards Friedland or Kohl and tending not to go towards Schoech because of concerns he had about effort and availability. Mr. Hunt was unable to reach Attorney Friedland about his fee. It seemed to Councilman Hester that it was between Kohl and Friedland. Motion COuncilman Hester moved to retain Kirk Friedland as Attorney for the litigation case of Tradewinds, seconded by C~uncilwoman Zibelli. After discussion, a vote was taken on the motion, and the motion carried 4-0. Consider Procedures for Review of Proposed Tradewinds Settlements if Such are Formally Presented to the City This item was deleted from the agenda. City Manager Cheney thought Attorney Friedland would want to have a workshop ith the Council, and he thought that would be the time to scuss guidelines the City would want to put forth for a settlement or, if the City is not going to settle, will not want brought as a settlement. There was more discussion. - 20- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1986 ADJOURNMENT There being no further business to come before the Council, the meeting properly adjourned at 6:15 P. M. CITY OF BOYNTON BEACH, FLORIDA ATTEST: -~'- ' City Clerk Two Tapes ) ~ Mayor Vice ~ayor Couhcilman Counc~man ilwoman - 21-