HomeMy WebLinkAbout04/24/2008 (2)SPECIAL CALL MEETING OF THE INDIAN RIVER COUNTY
BOARD OF COUNTY COMMISSIONERS
THE SOURCE - JURISDICTIONAL DETERMINATION AND
APPEAL BY I AM MINISTRIES
APRIL 24, 2008
1. CALL TO ORDER 9:00 A.M.......................................................................1
2. INVOCATION................................................................................................1
3. PLEDGE OF ALLEGIANCE.......................................................................1
4. COUNTY ATTORNEY MATTERS...........................................................2
A. THE SOURCE - JURISDICTIONAL DETERMINATION.....................................................2
OPENING STATEMENT BYATTORNEY VITUNAC
WA
OPENING STATEMENT BYATTORNEYHENDERSON...............................................................4
OPENING STATEMENT BYATTORNEY O'HAIRE..................................................................... 6
WITNESSES:............................................................................................................................. 7
ATTORNEY VITUNAC CROSS-EXAMINED MR. METz.............................................................. 8
ATTORNEY O'HAIRE CALLED KEITH HEDIN......................................................................... 8
ATTORNEY VITUNAC CROSS-EXAMINED MR. HEDIN.............................................................8
ATTORNEY O'HAIRE'S SUMMATION...................................................................................... 9
•TTORNEYHENDERSON'S REBUTTAL..................................................................................10
COMMISSIONERS' COMMENTS..............................................................................................10
PUBLICINPUT.......................................................................................................................12
CONCLUDING COMMENTS BY THE BOARD AND STAFF........................................................14
April 24, 2008
Special Call Meeting (The Source)
THEMOTION......................................................................................................................... 17
5. DEPARTMENTAL MATTERS.................................................................19
A. COMMUNITYDEVELOPMENT......................................................................................19
APPEAL BY I AM MINISTRIES, INC (THE SOURCE OFA DECISION BY THE PLANNING
& ZONING COMMISSION TO UPHOLD AN APPEAL BY STEVEN & ERIN METZ
AND OVERTURN A DECISION BY COMMUNITY DEVELOPMENT STAFF THAT THE
NON -CONFORMING RESIDENTIAL TREATMENT CENTER USE AT 5925 37m
STREET DID NOT CEASE FOR MORE THAN ONE YEAR AND THAT THE USE MAY
CONTINUE UNDER DIFFERENT OWNERSHIP (QUASI-JUDICIAL) ..............................19
COUNTY STAFF'S PRESENTATION........................................................................................19
PRESENTATION BY THE SOURCE..........................................................................................21
QUESTIONS FROM COMMISSIONERS.....................................................................................23
ATTORNEYHENDERSONCALLED LINDA WAKEFIELD.........................................................24
QUESTIONS FROM BOARD MEMBERS....................................................................................27
ATTORNEY O'HAIRE CROSS-EXAMINED MS. WAKEFIELD.................................................28
ATTORNEYHENDERSON CALLED PASTOR CRAIG BRIDGERS..............................................30
ATTORNEYHENDERSONCALLED TOM KING.......................................................................31
ATTORNEY O'HAIRE CROSS-EXAMINED TOM KING...........................................................32
ATTORNEYO'HAIRE QUESTIONED COUNTY STAFF............................................................33
PRESENTATION BYATTORNEY O'HAIRE..............................................................................34
ATTORNEY O'HAIRE CALLED STEVE METZ.........................................................................3
7
ATTORNEYHENDERSON CROSS-EXAMINED MR. METZ.......................................................38
ATTORNEYO'HAIRE CALLED ERIN METZ...........................................................................38
ATTORNEY HENDERSON CROSS-EXAMINED MS. METZ.......................................................38
ATTORNEYO'HAIRE CALLED KEITHHEDIN........................................................................39
ATTORNEYHENDERSONCROSS-QUESTIONEDMR. HEDIN..................................................40
ATTORNEYO'HAIRE CALLED RAY METZ.............................................................................40
ATTORNEYHENDERSONRE-CALLED LINDA WAKEFIELD...................................................42
COMMENTS FROM COUNTY STAFF AND BOARD MEMBERS.................................................43
CLOSING ARGUMENTS BYATTORNEYHENDERSON.............................................................47
April 24, 2008 2
Special Call Meeting (The Source)
CLOSING ARGUMENTS BYATTORNEY O'HAIRE.
..49
ATTORNEYHENDERSON'S REBUTTAL/FINAL STATEMENT ................................................. SI
FINAL COMMENTS FROM BOARD MEMBERS........................................................................ 52
THEMOTION......................................................................................................................... 53
6. ADJOURNMENT.........................................................................................54
EXHIBITS FROM ATTORNEY STEVE HENDERSON...........................................54
April 24, 2008 3
Special Call Meeting (The Source)
April 24, 2008
SPECIAL CALL MEETING OF THE INDIAN RIVER COUNTY
BOARD OF COUNTY COMMISSIONERS
The Board of County Commissioners of Indian River County, Florida, held a Special Call
Meeting at the County Commission Chambers, 1801 27th Street, Vero Beach, Florida, on
Thursday, April 24, 2008, to address The Source — Jurisdictional Determination and other
matters. Present were Chairman Sandra L. Bowden, Commissioners Joseph E. Flescher, Peter D.
O'Bryan, and Gary C. Wheeler. Vice Chairman Davis joined and departed the Workshop
intermittently. Also present were County Administrator Joseph A. Baird, County Attorney
William G. Collins II, and Deputy Clerk Athena Adams.
1. CALL TO ORDER 9:00 A.M.
Chairman Bowden called the meeting to order at 9:00 a.m.
2. INVOCATION
Stan Boling, Planning Director, delivered the Invocation.
3. PLEDGE OF ALLEGIANCE
Commissioner Gary C. Wheeler led the Pledge of Allegiance to the Flag.
April 24, 2008 1
Special Call Meeting (The Source)
4. COUNTY ATTORNEY MATTERS
A. THE SOURCE — JURISDICTIONAL DETERMINATION
County Attorney William Collins recapped the backup memorandum of April 18, 2008
and explained that this matter has an extensive history, both administratively at the County level,
and in the Courts. He disclosed that the issue centers on an inquiry by Mr. King of The Source
as to whether the property on 37th Street could continue to be used as a non-residential treatment
center, and the subsequent determination by the Community Development Department that it
could. That decision was questioned by the residents of the subject area through a letter from
Attorney O'Haire to Attorney Collins. Attorney Collins then referred the matter to the Planning
and Zoning Department which subsequently reaffirmed its July 10th decision that the use could
continue. Thereafter, an appeal to the Planning & Zoning Commission (PZC), determined that
staff had made an improper decision and that the use should not be continued.
Attorney Collins explained how, at the PZC Hearing, Attorney Henderson, on behalf of
The Source, had raised jurisdictional issues of the timeliness of appeal, and a lack of filing fees,
and how he appealed (to the Board of County Commissioners) PZC's decision overturning The
Source's right to continue the Residential Treatment Center use. The Commission found at that
time that it did not have jurisdiction to hear the appeal, based on Attorney Collins's
recommendations. That action resulted in Attorney O'Haire filing a Petition for certiorari in the
Courts in order to protect his clients' interests. Attorney Collins reminded the Board of its
subsequent actions and of Judge Hawley's Order Denying Petition for Writ of Prohibition, filed
by Attorney Henderson. Said Order was subsequently upheld by the 4th District Court of Appeal
on December 19, 2007, and the matter remanded to the Board of County Commission to
determine, under our Ordinance, whether the County has jurisdiction to hear the case, and if they
so find, then the Board would have to hear the appeal on the merits.
April 24, 2008 2
Special Call Meeting (The Source)
Attorney Collins looked at the timeliness of the appeal, the form of the appeal, the place
of filing, and filing fee, and presented his findings. He recommended that the Board make
findings that it does not have jurisdiction over the merits of this case because:
1. The September 5, 2008 letter from Mr. O'Haire was not an appeal
2. As an "appeal", the letter was untimely under Code Section 902.07(3)(b).
3. The appeal was not filed on the form prescribed by the County, as required by Code
Section 902.07(3)(b).
4. The appeal was not filed within a specified time limit with the Planning Department
as required by the Code Section 902.07(3)(b).
5. The appeal was not accompanied by a fee as required by Code Section 902.07(3)(b).
Attorney Collins, after presenting his review and analysis, reminded the Board that due
process requires that they do not simply accept his recommendations, but to make its own
findings with respect to the issues, after hearing from the parties involved.
OPENING STATEMENT BYATTORNEY VITUNAC
Douglas Vitunae, Esquire, Collins, Brown, Caldwell, 756 Beachland Boulevard,
Attorneys for The Source, presented his client's arguments in opposition to the Board of County
Commissioners hearing the matter. He described how his client bought the property in reliance
on the July 10th determination (by the Community Development Department), which allowed use
as a residential treatment facility, and as a legal continuation of a non -conforming use. He
argued that the July 10th decision was never properly appealed by the Metzes or by anyone else,
and he provided relative facts in support of his arguments. He also argued that they have cited
case law that explains where the County Ordinance contains mandatory language relative to the
appeal procedures of the Code that those procedures have to be followed or else the County does
April 24, 2008 3
Special Call Meeting (The Source)
not have jurisdiction to hear the appeal. Further, that Mr. O'Haire has cited cases that they do
not think apply.
Attorney Vitunac referenced several case laws, in particular, the Ocean Concrete's case,
where the Board took the advice of the County Attorney and recognized that the decision to
strictly enforce its appeal procedures as outlined in the Ordinance would be precedential to their
case today. He thought it was the proper decision, and one that shows the community that we
have a consistent government that gives equal treatment to all applicants. He urged the Board to
make the decision that the appeal was invalid and to reaffirm the July 10, 2006 letter stating that
they have legal nonconforming use status.
(Clerk's Note: Attorney Vitunac submitted to record an approved excerpt from that
portion of the Minutes of March 18, 2008, regarding Ocean Concrete hearing - Exhibit 1)
OPENING STATEMENT BYATTORNEYHENDERSON
Steve Henderson, Esquire, Collins, Brown, et al, representing The Source, recalled that
following the Board's February 13, 2007 hearing, holding that the Board lacked jurisdiction,
there were various comments made afterwards that this was a technicality and that The Source
prevailed on the basis of a technicality. He believed the question of jurisdiction has very
important issues of public policy involved in it, and the terms of our ordinance represent a
balance between two competing interests; one being the right of an affected party in a land use
decision to complain and appeal a decision by an administrative official or this Board, and on the
other hand the right of an applicant, or a developer, or a person issued a permit or an approval, to
rely upon a finality of that approval in proceeding with its business. His point in case was that
The Source obtained an official administrative approval dated July 10, 2006; it was properly
issued pursuant to the County's ordinance; and they relied upon that in proceeding with the
purchase of the property. He suggested those were important things.
April 24, 2008 4
Special Call Meeting (The Source)
Attorney Henderson spoke to the issues of his client's investment (over a half (1/z) a
million dollars), and the property rights of affected parties, which are all important to pursue, but
must be pursued properly and in accordance with the ordinance. To provide a better
understanding of the facts and circumstances surrounding the jurisdictional issues, Attorney
Henderson, through a PowerPoint presentation, addressed the section of the Code that deals with
appeal requirements and Public Notice. He also presented a timeline of activities to show the
important dates involved in this matter, including the date the appeal period began to run.
He presented six (6) questions and answers to the Board for consideration and response,
and claimed there were multiple defects in the Metz appeal:
(1) What are the Metz's appealing?
(Answer: John McCoy's administrative letter decision dated July 10, 2006)
(2) When did the Metz's receive the actual notice of the 7/10/06 McCoy letter?
(Answer: August 15, 2006)
(3) What are the requirements of the IRC Code for filing a timely and proper appeal?
(Answer: It requires a filing and that it be filed with the Planning Division)
(4) Can the O'Haire letter dated 9/5/06 be considered a timely and proper appeal?
(Answer: No, it cannot; it was filed late, it went to the wrong office; was not on a proper
form, and no fee was included)
(5) Was the formal appeal filed on 11/1/06 a timely appeal?
(He did not read Question No. 5 because he thought he covered it `pretty good" under
Item 4)
April 24, 2008 5
Special Call Meeting (The Source)
(6) Can the County ignore or waive the appeal requirements of its ordinance?
(Answer: No, this is a quasi-judicial requirement and strict compliance with appeal
requirements and conditions is necessary to create jurisdiction)
Attorney Henderson opined that the case on jurisdiction should be seen as compelling
because the County Attorney is advising the Board that he sees the same defects as they have,
and he did not think the Commission has any other choice but to hold that the appeal filed on
November I" was untimely, and that the letter delivered on September 7th was not the proper
appeal. He urged the Board to find, as it did on February 13, 2006, that it lacked jurisdiction to
hear the merits of this case. He made it clear that they think they have merits on their side in this
case.
OPENING STATEMENT BYATTORNEY O'HAIRE
Michael O'Haire, Esquire, Law Firm of O'Haire, Quinn, Casalino, Offices on Cardinal
Drive, Vero Beach, Attorney for the Metzes, Hedin's, and other neighbors adjacent to The
Source property, informed the Board that he would be taking some testimony, and would show
that what The Source is desperate to achieve is to prevent the Board from hearing this case on the
merits.
Attorney O'Haire drew attention to the County Ordinance relating to appeals (§902.07)
listed at page 4 of the backup, and asked the Board to look with him at the Ordinance under the
heading of "appeal procedures." He argued the issues of the Ordinance's requirement for Notice
of filing, when the appeal time ran out, and highlighted its relevance to this case. He promised to
provide evidence from the neighbors regarding their knowledge of The Source coming into their
neighborhood, or that the McCoy's letter existed.
April 24, 2008 6
Special Call Meeting (The Source)
Attorney O'Haire said he would show that the Ordinance applies in their case, because
one could not appeal something he knew nothing about. He submitted that the Ordinance
(§902.07) was designed to fit 99.99% of the cases that turned around a decision of the Planning
Department, and Ocean Concrete was one of them. He argued the intent of the ordinance,
stating that based on the lack of notice to petitioners, he would submit that the Board would have
to find that the Ordinance was not designed to fit a situation that is going to affect people who
were not involved in the process or who had no knowledge as to what was going on, and by the
time a decision was made, have had the clock run out on them. He reminded the Board that he
won the appeal (4th District Court of Appeal affirmed Judge Hawley's decision) that the
ordinance does not have application. He suggested the Board has to find that the strict language
of the appeal Ordinance does not apply to this issue.
WITNESSES:
Attorney O'Haire called Steve Metz to explain what exactly happened in the process
and how he discovered what had been done to him and his neighborhood.
Steve Metz, 5980 37th Street, under questioning by Attorney O'Haire, described the
location of his residence in relation to the subject property; explained that it was through an
article in the Press Journal that he first discovered The Source proposed to put a homeless shelter
in his neighborhood; recalled that the article was published before August; and how after reading
the article, he consulted with neighbors and family to discuss what they should do. Mr. Metz
said he did not know the existence of the McCoy letter before he called the Planning & Zoning
Department; Director Boling told him there was a letter, at the time he spoke with him; there was
no mention of an appeal; and he was not told the clock had been running.
April 24, 2008 7
Special Call Meeting (The Source)
ATTORNEY VITUNAC CROSS-EXAMINED MR. METZ
Mr. Metz could not recall exactly the time they hired an attorney, and knew about The
Source's decision for a recovery center after he read the newspaper article. In response to "what
prompted you to file on an appeal form on November 1 st", he said at that point they had contacted
Attorney O'Haire.
ATTORNEY 01HAIRE CALLED KEITH HEDIN
Keith David Hedin, 6030 37th Street, Vero Beach, under questioning by Attorney
O'Haire described his property's proximity in relation to Alcohope (the subject property/a/k/a
The Source). He explained that on August 6, 2006 from an article in the Press Journal he found
out The Source was proposing to place a shelter on the subject property, after which he contacted
his neighbors to discuss the matter. He had no idea of The Source's intent prior to the article in
the Newspaper. He immediately contacted County staff but was not told that he had any appeal
rights; was not told that the clock was running; was not told that the clock had run out; was not
told that his time was up on July 31; and there was no mention of an appeal. He was only told
"here is a copy of the letter Mr. McCoy has wrote endorsing The Source of buying this piece of
property." The first time he saw the letter was August 9, 2006, and he did not, at that time,
know of any right to appeal.
Mr. Hedin complained of not being notified by the County of a potential land use change
in his area.
ATTORNEY VITUNAC CROSS-EXAMINED MR. HEDIN
Under cross-examination, Mr. Hedin affirmed that he did not hire Mr. O'Haire, he only
spoke with him, and could not recall the exact date. He also affirmed that he did not know when
Mr. Metz hired Mr. O'Haire; that he received "formal notice" from a newspaper article not from
April 24, 2008 8
Special Call Meeting (The Source)
County staff, and that he did not file an appeal within 21 days of getting the letter because he did
not know that he could.
Commissioner O'Bryan wanted to make sure what staff's involvement was, and asked
Mr. Hedin what he requested of Planning Director Stan Boling when he (Hedin) called Director
Boling's office. Mr. Hedin said he just asked what was going on across the street from his
home (at Alcohope on 37th Street); he did not ask staff about an appeal, and staff did not mention
an appeal.
ATTORNEY 0 WAIRE'S SUMMATION
Attorney O'Haire declared his family ties to the Metz's. In summation, he stated that
common sense and the plain language of the Ordinance dictate that it only applies to an Ocean
Concrete situation. He argued that nobody knew that a letter was written, or that there was a
letter requested, except the applicant and Planning staff, and they are the only ones that the
ordinance can reasonably and with any common sense or fairness apply to. He also argued that
the ordinance could not apply to residents because they knew not of the "letter" or that there was
a time requirement, and that the process was already over by the time they knew about it.
Attorney O'Haire referenced page 5 of Judge Hawley's decision regarding the Board's
jurisdiction to hear this matter, where the Court finds that the records fail to affirmatively show
that the County Commission would be acting in excess of its jurisdiction by reconsidering the
merits of the appeal of the Planning & Zoning (Commission). He noted that Judge Hawley "is
saying there is no showing made and you all acted improperly, and his decision determined and
said you did everything you should have done and you did it properly." Further, the 4th District
Court of Appeals affirmed it, and we need now to make a ruling that this Ordinance cannot, with
any reason, common sense or fairness or all, apply to the Metzes or Hedin's of the world; it
April 24, 2008 9
Special Call Meeting (The Source)
apply to the applicants and to the staff. That being said, he reasoned, we have to move on to the
hearing of the merits.
ATTORNEYHENDERSON'S REBUTTAL
Attorney Henderson argued Attorney O'Haire's statement that the appeal period ran out
on the neighbors on July 31St which is 21 days after the date of the July 10th letter, and found that
to be somewhat absurd. He asked the Board to notice in the Ordinance [Code Section
902.07(3)(a) in the backup] which states in part, "The applicant, or any other person(s) whose
substantial interests may be affected ..." and suggested that "substantial interests affected" is
referring to people like the Metz's. Therefore, by its terms, the Ordinance applies to persons
whose substantial interests are affected, other than the applicant. They would concede that had
the July 10th letter been adverse to their client, their appeal period would have run out on July
31 st
Attorney Henderson explained that the law applies a "chargeable with notice concept"
when no notice is provided to persons with a substantial interest. He again argued points of the
appeal period, and suggested that if the Board accepts Attorney O'Haire's arguments that this
Ordinance does not apply, they would be left with a situation of exactly when and where the
period began and ended. He suggested that that is not a logical interpretation of this Ordinance.
Attorney Vitunac displayed a copy of the appeal form filled out by the residents, and
declared that they figured it out, but late, and that was not acceptable arguments.
COMMISSIONERS' COMMENTS
Chairman Bowden opened the floor to questions from Commissioners and reminded
everyone that they should conduct their questions only to the issues of jurisdiction.
April 24, 2008 10
Special Call Meeting (The Source)
Commissioner Flescher asked Attorney O'Haire whether there were any verbal or
written communication regarding the process or any suggestion of objection. Attorney O'Haire
did not think that Director Boling's focus was on the process, the procedure, or the rules. He
perceived that the response was, they needed to talk to Tom King, and nothing was said about an
appeal or anything procedural.
Vice Chairman Davis wanted to clarify Attorney O'Haire's statement "that Judge
Hawley is right, and that the Appeals Court said that Judge Hawley is right," and asked what
exactly was Hawley right about. Attorney O'Haire said he was right about the fact that the
Board alone had the power to decide what their jurisdiction is, and that the Board made that
decision when it decided to hear it on the merits, and The Source filed a procedure to keep them
from hearing it on the merits.
Attorney Henderson did not think that response was correct and Vice Chairman Davis
re -directed the question to him, asking whether he disputed the fact that the Appeals Court has
said that Judge Hawley's decision is right. Attorney Henderson explained the Judge's
ruling/decision.
Attorney Collins gave his understanding of Attorney O'Haire's arguments, in particular,
that the process of Notice applies only to applicants and not substantially affected parties. He
noted that on its face, it applies to both. He thought the issue is therefore, if it does apply, it is
not fair it applies to substantially affected parties, but giving them additional time based on when
they received the actual notice, he thinks, brings fairness back into it, and not holding them to
July 31" once they have noticed timeframes apply. And whether they knew the process or not,
there were timeframes warning and there wasn't, in his opinion, a proper appeal form, place,
time, fee -wise, but he understood their arguments.
April 24, 2008 11
Special Call Meeting (The Source)
Chairman Bowden called a break 10:24 a.m. and reconvened the Meeting at 10:37 a.m.,
with Administrator Baird absent.
PUBLIC INPUT
Chairman Bowden opened the floor to public input.
Spencer Simmons, 118 43rd Avenue, believed there could be another timeline being
looked at, a defense timeline. He was confused by Mr. Hedin's arguments about not knowing the
procedures, and pointed out that ignorance of the law should be no excuse, because of Mr.
Hedin's knowledge of County rules, he being a member of the Code Enforcement Board. He
recalled how the issue was handled at the time it went before the Board when Commissioners
Lowther and Neuberger sat as members.
(Clerk's Note: Administrator Baird returned at 10:40 a.m.)
Mr. Simmons said it seemed that there was "political gamesmanship," and he believed
that residents were aware that the property was being sold and they had the proper notification.
(Clerk's Note: Chairman Bowden called a short Break from 10:44a.m. to 10:47a.m., to
facilitate certain attendees in securing their vehicles during a sudden rainstorm. [Vice Chairman
Davis was absent at the resumption of the Meeting])
Tom Lowther, 1655 27th Street, recalled that this issue had come up when he sat as
Commissioner in the past (November 7, 2006). He asked Administrator Baird what would he
have done, if he (Lowther), a Commissioner at the time, had asked him (Baird), how can we deal
with this and keep the attorneys out of it; because it is an issue between the Board of County
April 24, 2008 12
Special Call Meeting (The Source)
Commissioners, the employer and staff, making this decision on a letter for a non -conforming
use, and not looking into the due diligence of this establishment being non -operational for a year.
(Vice Chairman Davis rejoined the meeting at 10: 49 a.m.)
Administrator Baird replied that if the Commission had voted for staff to look into the
matter they would have done a staff report and brought it back to the Commission with options.
Mr. Lowther also recalled that at the meeting of November 14, the matter had come
back before the Board and staff had recommended that this go before the Planning & Zoning
Board. The Planning & Zoning Commission ((PZC)) had heard the issue, and voted in favor of
this nonconforming use being in place and in favor of the neighborhood at 37th Street; thereafter
the appeals came in. He urged the Board to do the right thing because as Commissioners they
took an oath to protect and serve.
Joseph Paladin, 6450 Tropical Way, felt The Source is not a part of what this discussion
should be about; did not think anyone was against The Source or what it stands for; and did not
see this as wrong or right. His goal was to try to find a happy medium for negotiations, and he
suggested going back to the beginning to see where we started. He wanted to know if it was
ever determined that if this use is allowed, it would be continually allowed; as well as, when it
was not allowed. He had not heard the Board discuss those facts, and wanted to know what
those facts were. He also wanted to know if there was some sort of compromise so the County
does not end up in court.
Keith Hedin, 6030 37th Street, acknowledged that he is on the Code Board, and admitted
he doesn't know all the procedures. He believed County staff made a grave error in determining
the land use of this property (grandfathered property.). He also believed Mr. McCoy made a
mistake and should never have written that letter because he never talked to area residents about
April 24, 2008 13
Special Call Meeting (The Source)
the use of the property. He was not against the homeless shelter, but against the process, because
the place was vacant for more than 12 months, and this he knew because he lives across the
street.
Susan Hunter, 1855 10th Avenue, believed no mistakes have been made and it was not a
homeless center. She knew for a fact that there was always an attendant on the property, and
there were always AA meetings being held at Alcohope, because she went.
Ray Metz, 5960 37th Street, residing directly across from the property, agreed with Mr.
Hedin that a mistake was made (through McCoy's letter). He hoped the Board would let them
tell their story.
Commissioner Wheeler thought they were getting into the appeal issues when they
should only be considering jurisdictional issues. The Chairman agreed.
Sonya Morrison, 2680 68th Square, living down the street from subject property, heard
arguments on whether or not to uphold the law, and whether or not it is okay to argue ignorance
in the face of the law, and felt it was an important issue and we do need to uphold the law. She
spoke about the Board's responsibility to protect the residents of County, and argued that if a
mistake was made, there was a process in place in the Ordinance to address that; and if the
process was not followed, there needed to be a ruling as such.
CONCLUDING COMMENTS BY THE BOARD AND STAFF
Attorney Collins did not think there was anything new to add but to get back to the
rulings of Judge Hawley, to make determinations to resolve these factual issues relating to
jurisdiction, and to make findings whether the letter was an appeal, whether it was filed timely,
April 24, 2008 14
Special Call Meeting (The Source)
on the proper form, and whether it was filed in the proper place, accompanied by the required
fee. Therefore, if the Board finds that it doesn't, then it should find it does not have jurisdiction
over the matter.
Planning Director Stan Boling had no further comments, but offered to answer
questions from the Board.
Commissioner O'Bryan asked if staff ever received a check from Mr. O'Haire or the
Metzes, as part of the appeal, and whether it was good. Staff affirmed that they had.
Commissioner Flescher inquired about the timeframe for a response to Mr. Metz and
Mr. Hedin, as far as an inquiry; whether it was written or verbal; and whether it was customary
for any correspondence to go out to a community when issues of this nature might impact the
community. Director Boling replied, "No" to the latter, saying this is a zoning confirmation
letter, and there was nothing in our Ordinance that requires us to notify residents in such matters.
Commissioner Wheeler inquired who gets the 21 days notification; what is actual
Notice; and wanted an example of the letter/notice that was sent to Ocean Concrete. He also
wanted to know if staff ever explains the process of appeal in a notification letter.
Commissioner Wheeler did not believe to be valid the comments by Mr. Simmons about Mr.
Hedin's ignorance of the law, because he was a County official.
Commissioner Wheeler remarked that this was one of the most difficult issues he has
dealt with, and he could see a difference with the Ocean Concrete case. He wanted to deal with
the merits of the actual facts rather than a technicality. He felt neighborhood residents were at a
tremendous disadvantage to these issues, because they were ignorant of the process; they did not
understand what they needed to do in a timely fashion; they did not have proper notice, and that
could probably be an error. He felt they needed to revisit County rules to keep people notified.
April 24, 2008 15
Special Call Meeting (The Source)
He inquired of Attorney Collins how we could do this, in this instance, and still deal with Ocean
Concrete. He declared that after listening to both sides of arguments, he had changed his
position that he would listen to the appeal. He thought in this process it was important that we
treat people fairly and objectively, and believed it was unfair to the neighborhood.
MOTION WAS MADE by Commissioner Wheeler,
SECONDED by Commissioner Flescher, to hear the
appeal.
Chairman Bowden gave her understanding of the process used by staff as it relates to
the current issue. Director Boling affirmed her understanding as correct. She thought they
should hear the appeal to be fair to the residents.
Commissioner Flescher addressed comments from Attorney Vitunac regarding rules of
understanding, and defended Mr. Hedin's lack of knowledge on the procedure. He believed the
timeline is somewhat convoluted, and felt we have an obligation to the community and all
affected parties to have this heard.
Commissioner O'Bryan recalled that at the March 18, 2008 meeting regarding Ocean
Concrete, he had spoken at length regarding the interpretation and intent of the law and
legislative process, and had stated that the intent was to allow citizens the right to have their
appeal heard before the Board. He recapped the subsequent actions of the Board regarding the
Ocean Concrete appeal, and how he had opposed the Motion to not hear the appeal based on a
technicality, that the check was not timely filed. He did not agree with that, but felt if that is our
policy then we need to follow policy. His concern was, if we follow policy, then we have no
alternative but to deny this appeal because it was not filed timely, among other things. He cited a
portion of Section 902.07 of the Code regarding "purpose and intent" and reiterated his belief
that residents should have the right to come before this Board and plead their case. On the other
April 24, 2008 16
Special Call Meeting (The Source)
hand, he felt it was critical that we follow our policy because if we mix and match our policies
we will end up with more lawsuits.
Commissioner O'Bryan felt the issue of jurisdiction comes down to when the applicants
were truly notified, and when the 21 -day clock started ticking. He addressed the matter of
notification to residents, and believed that at that time, the applicants were notified of their due
process and of the timeframe and procedures under Section 902.07 (based on a letter to the
applicants from Attorney Collins dated October 17, 2006 regarding the appeal timeframes). He
understood that the proper form was delivered to the Planning Division on November 1 and that
a check in good standing was delivered on November 7, which was within the 21 -days appeal
period. Therefore, in his opinion, and based upon those facts, and upholding our policy strictly
to the ordinance, he believed official notice did not occur until October 17. The appeal was
therefore timely, he held; it was on the appropriate form; funds were in good order; and he
supported the Motion to hear the appeal.
Vice Chairman Davis surmised that we are victims of an inadequate policy and it is the
policy that was in place. He deemed the two days were significant, and believed that is where
we should draw the line, and it should be a bright line. He was not in favor of the Motion.
THE MOTION
The Chairman CALLED THE QUESTION and the
Motion carried 4-1 (Vice Chairman Davis opposed). The
Board determined that it has jurisdiction, and approved to
hear the appeal.
April 24, 2008 17
Special Call Meeting (The Source)
Attorney Henderson reminded the Board that Judge Hawley's decision directed them to
make findings of fact with respect to that jurisdiction issue they just decided, and noted that he
did not hear any findings of fact on that. He said the other issue was what constituted the
appeal, and what is the appeal. He did not hear a clear statement from the Board on any of those
either, and felt these findings of facts are important for purposes of preserving the record and
pursuing further appeals.
Commissioner Wheeler gave his understanding on the findings of fact and expressed
that this system was set up to hear people who have been turned down by PZC.
Attorney Henderson questioned the findings of fact to which Commissioner Wheeler
gave an explanation.
Attorney O'Haire reminded the Chairman that this was a quasi-judicial hearing, and
when they as lawyers appear before a Judge, they do not get to inquire of the Judge why they
ruled the way they did or argue with them about the propriety of their ruling.
Chairman Bowden then declared that the Board has voted and they would hear the
process. She thereafter consulted with Board members regarding taking a lunch break.
The Chairman called a lunch break at 11:36 p.m., and reconvened the Meeting at 12:33
p.m., with all members present.
April 24, 2008 18
Special Call Meeting (The Source)
5. DEPARTMENTAL MATTERS
A. COMMUNITYDEVELOPmENT
APPEAL BY I AM MINISTRIES, INC (THE SOURCE) OF A DECISION BY
THE PLANNING & ZONING COMMISSION TO UPHOLD AN APPEAL BY
STEVEN & ERIN METZ AND OVERTURN A DECISION BY COMMUNITY
DEVELOPMENT STAFF THAT THE NON -CONFORMING RESIDENTIAL
TREATMENT CENTER USE AT 5925 37TH STREET DID NOT CEASE FOR
MORE THAN ONE YEAR AND THAT THE USE MAY CONTINUE UNDER
DIFFERENT OWNERSHIP (QUASI-JUDICIAL)
Chairman Bowden requested that all potential speakers be sworn, pursuant to quasi-
judicial requirements. The Deputy Clerk administered the Oath.
COUNTYSTAFF'S PRESENTATION
Planning Director Stan Boling recapped the backup memorandum dated April 17, 2008
and updated the Board on the request for a nonconforming residential treatment center use at
5925 37th Street. He provided detailed background and reminded the Board of previous
consideration and decisions regarding this matter.
Community Development Director Bob Keating displayed the County land -use map,
outlining the subject site and surrounding communities, with their respective zonings. He said
the historical use and zoning for the subject site are different from surrounding properties on this
site. He explained that if nonconforming uses are allowed to continue, they would be restricted
to current building area and a capacity of 18 clients; and if the nonconforming uses are denied,
April 24, 2008 19
Special Call Meeting (The Source)
then the uses that are allowed would be single and multi -family district, and institutional (RM -6
and RS -3). He revealed that staff's decision was to allow continuation of a residential treatment
center use on this property, restricting it. It could not be expanded beyond the current building
area and the 18 resident clients.
Director Boling presented Planning & Zoning's (PZC's) decision; cited the reasons for
nonconformities; and explained the purposes of nonconformities regulations and policies, as well
as Ch. 904.08 "cessation of nonconformities." He suggested that the "Test" was, "did the non-
conforming use cease for a continuous period of more than 1 year?" He pointed out that the
Board should focus on the word "cease" in its interpretation, as well as, the timeline facts. Under
Ch. 904.07(2) "reconstruction after declared disaster", he said the Test was, "do the disaster
reconstruction allowances guarantee reconstruction of nonconformities regardless of the one year
cessation regulation?" PZC determined that the use ceased for a continuous period of more than
1 year, and overturned staff's decision.
Director Boling then presented the four-part test to review PZC's decision (outlined at
page 16 of the backup). Staff contends that PZC failed in two (2) aspects with regards to
evaluating the appeal with respect to nonconformities regulations, and that PZC failed to apply
the provisions of §902.07(2) and County policy, which modifies the one year cessation rule when
the use is affected. Director Boling repeated staff's recommended that the Board review the four
options; find that PZC failed with respect to item #4; uphold the appeal from The Source;
overturn the Planning and Zoning Commission decision, and allow continuation of non-
conforming use with the restriction of no expansions.
Commissioner Wheeler sought further background on zoning uses, and cessation of use,
to which Director Boling responded. Commissioner Wheeler also questioned staff's opinion
regarding cessation and wondered what would happen if this were reverse. He argued that if a
April 24, 2008 20
Special Call Meeting (The Source)
portion of the use ceases, would we then say it is all operational. He presented a scenario to
explain his point, and Director Boling responded accordingly.
Commissioner Davis sought to understand "the Jordan situation" mentioned earlier, and
Director Boling gave his understanding.
Commissioner Flescher believed it was inappropriate to draw correlations with other
existing cases. He asked what portion of the timeline would be considered a part of the hurricane
recovery period; what was the timeframe; and was there any record of any reconstruction, or
applications, or process for hurricane recovery. Director Boling responded to his questions.
Attorney Collins reminded the Board of the issue at hand and explained why The Source
should be allowed to present its arguments first.
PRESENTATION BY THE SOURCE
Attorney Steve Henderson, representing The Source, said they would be presenting
evidence on three issues: (1) under the County's ordinance, did the activity as a residential
treatment center cease for a period of one year; (2) whether the hurricane ordinance would
excuse the cessation if it lasted for more than one year; and (3) this is a legal issue of equitable
estoppel (when a person relies upon an official action by the County, in this case the zoning
confirmation letter of July 10, 2006, and justifiably relies on that and expends money in reliance
upon that.) He alluded that case law has imposed the doctrine of equitable estoppel to prevent
the County from reversing that decision, even if the decision was wrong.
Attorney Henderson argued that because The Source did not buy the property until July
31, 2006, and because the period that is being examined is really the period before, they would
present a witness, Linda Wakefield, from New Horizons, and the former owner of the property,
April 24, 2008 21
Special Call Meeting (The Source)
to provide details of exactly what occurred during the period of time from April 1, 2005, which
was the date on which the residents at the Alcohope facility moved. He stated that Attorney
Vitunac would discuss two cases that deal with the issues of cessation. Those cases stand for the
proposition that in addition to actual use of the property ceasing, there has to be an element of
intent to abandon. He also gave a brief description of the cases, their intent, and findings by the
court.
Attorney Henderson suggested that as the Board listen to this testimony, he would like
them to view it in the light of whether they detect an intent to abandon the residential treatment
center use during the time -period in question. He contended that under the hurricane ordinance it
would override the cessation provisions. He said there were three (3) hurricanes that occurred in
that period of time, and the terms of the Ordinance are that the County has to be included in
those counties that are declared disaster areas.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit I — records from
FEMA showing the disaster declaration numbers)
Douglas Vitunac, Esquire, Collins, Brown, Caldwell 756, Attorney for The Source,
presented case law in support of his arguments, the first being Sarasota vs. Bow Point on the
Golf Condominium Developers, LLC, a 2nd District Court case from Florida, decided in October
26, 2007. Said case dealt with a grandfathered motel that had a change of zoning, but the
doctrine of vested property rights allowed them to continue the use under the grandfathering
status. Attorney Vitunac read the Circuit Court's decision on that matter, which concluded that
here was a 13 -month interruption of motel operation that was caused by necessary repairs and
renovations and therefore did not trigger a discontinuance provision in the zoning ordinance. He
believed that that discontinuance ordinance was very similar to ours, and he read that portion
relative to non -conforming uses and cessation of use.
April 24, 2008 22
Special Call Meeting (The Source)
Attorney Vitunac discussed and argued the issues of due process and vested property
rights, voluntary abandonment and voluntary cessation, and gave a Circuit Court opinion which
was affirmed by the Department of Community Affairs (DCA). The case, Cook vs. the Citv of
Lake Worth, Florida, published in the Florida Law Weekly [1 Fl Law Weekly, Supp. 383a]
where the Petitioners bought a building (retail was permitted when they bought it); the zoning
changed underneath them but they were grandfathered; then the economy went bad and they lost
their retail tenants. He interjected that Lake Worth had a 6 -month cessation ordinance. Upon
appeal, the Court found that the doctrine of the vesting of property rights in nonconforming uses
is based on the reluctance of courts to apply zoning ordinances retroactively and destroying
existing rights. Attorney Vitunac hoped to show that New Horizons had attempted to sell this
property for the same use.
QUESTIONS FROM COMMISSIONERS
Vice Chairman Davis, in reference to the case law regarding the Motel in Sarasota,
asked whether there was a change in ownership in the process. Attorney Vitunac said, "No,"
and explained the law on nonconforming uses, and property rights, which does not cancel
grandfathering status.
Vice Chairman Davis, referencing the subject facility, asked if was there a Notice from
the Health Department deeming it inhabitable or was that a choice made by the current owners.
Attorney Vitunac promised to address those questions when Linda Wakefield is called to
testify.
Commissioner O'Bryan, referring to the Sarasota case where Attorney Vitunac cited
that the interruption of service was caused by repairs, asked if after September 2004, whether
April 24, 2008 23
Special Call Meeting (The Source)
Alcohope ever applied for any permits to initiate repairs on the property. Attorney Henderson
said Linda Wakefield would respond to his query.
Chairman Bowden sought confirmation on Mr. Vitunac's or the court's definition of
abandonment, and whether it meant it would have to be voluntarily, totally abandoning, and
walking away. Mr. Vitunac affirmed as correct, and averred that they can show that the owners
intended to try to sell it for this use, and the testimony of Linda Wakefield was intended to show
that.
ATTORNEYHENDERSON CALLED LINDA WAKEFIELD
Linda Wakefield, 1742 Binney Drive, Fort Pierce, Operations Manager at new
Horizons, in charge of facilities operation for 20 years, with 28 years with the company. In
response to questions from Attorney Henderson, Ms. Wakefield explained the chain of events
that occurred on the subject property on 37th Street, starting with Hurricane Frances in 2004. She
described the state of the property prior to hurricane Frances; the damage to the property
following that hurricane (noting that the bulk of the damage was sustained during Hurricane
Jeanne); how they conducted repairs so the residents could move back in after being removed
due to the damages sustained; and what occurred after Hurricane Jeanne hit in September 25,
2004. She said damage was significant and an alternate facility had to be sought for the clients.
Ms. Wakefield related that on October 5, 2004, the residents were moved back in
although in less than ideal conditions. She revealed the purpose and mission of New Horizons, a
non-profit organization facility, noting that they have been in business since 1958 and is the
Behavioral Health Care Provider. She reported that the residents of Alcohope were permanently
moved out on April 1, 2005; it was a planned move; and they were moved to a new facility
called Hanley Hall, close to the Indian River Memorial Hospital. She explained why it was not
the intent of New Horizons to terminate its campus residential treatment use as of April 1, 2005,
April 24, 2008 24
Special Call Meeting (The Source)
and the intentions of New Horizons after moving the residents out on April 1St. In response to
questions regarding sale of the property, she said the property was listed for sale in December
2004.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 2 — a Listing
Agreement with Lowes Realty)
Attorney Henderson continued to question Ms. Wakefield asking whether there was any
activity on the subject property after the residents were moved out. Ms. Wakefield replied that
Case Management Services used the facility as a base station, and there was telephone use on the
property until June 17, 2005. She described what took place after that in terms of seeking a
potential buyer of the property, noting that they had been approached by a "faith -based"
organization called "The Crossings," (in the early summer months of 2005) who expressed an
interest in taking over the Alcohope facility. There was discussion about doing a lease purchase
agreement, and The Crossings began their due diligence process, which continued until late
January 2006.
Ms. Wakefield identified the "Application for Sanitation Certificate" shown to her by
Attorney Henderson. Said Certificate, she said, was issued by the Health Department for a
commercial kitchen operator's permit, which has to be renewed every year, and expires
September of each calendar year. She read her comments as reflected on the form dated
September 14, 2005, which states, "Facility is temporarily closed for repairs caused by
Hurricane. Expect to re -open early 2006."
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 3 — copy of
Application for Sanitation Certificate)
April 24, 2008 25
Special Call Meeting (The Source)
Ms. Wakefield continued to answer questions from Attorney Henderson, and explained
how their efforts of repairs failed with the onset of Hurricane Wilma in 2005, while they were
still in the process of carrying out repairs on damages sustained from prior hurricanes. She also
explained why the negotiations with The Crossings to sell the facility failed. She identified a
copy of a letter from Jones & Jones dated October 1, 2006, as the proposal to do renovations at
the Alcohope facility.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 4 Letter from
Jones & Jones with Estimates)
Ms. Wakefield admitted that the efforts to have The Crossings occupy the facility ended
in January 2006, and described the series of events that subsequently occurred. She said the
Agency had a need to provide facilities for another program, the Mobile Crisis Response Team,
and they felt the administrative building at Alcohope sustained the least amount of damage and
that it would be easy to prepare that facility for Mobile Crisis.
Ms. Wakefield recounted the efforts made to have the building returned to habitable
conditions, which activities took place from February 2006 to April 2006, including all the
repairs undertaken to make the building habitable. Ms. Wakefield admitted that the Mobile
Crisis Response Team moved into the property on May 15, 2006. She noted that May 2006 was
when The Source showed an interest in the property, which was after the time the Mobile Crisis
Team was located there. She identified a copy of the contract between New Horizons and I Am
Ministries, Inc. dated June 21, 2006, which implied that The Source showed an interest in the
property in May and entered into contract in June.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit S Contract
between New Horizons & I Am Ministries, Inc., for Sale and Purchase)
April 24, 2008 26
Special Call Meeting (The Source)
Ms. Wakefield in response to further questioning from Attorney Henderson disclosed
that the closing on the sale of the property to The Source took place July 31, 2006, and they
moved their Mobile Crisis Team to their outpatient department. To explain electrical usage on
the property, she explained that they lost power to the site after hurricane Wilma, October 25,
2005, and that the electric was maintained during the period in question.
OUEsnom FROM BOARD MEMBERS
Ms. Wakefield, in response to Commissioner Wheeler's question regarding the water
treatment plant, confirmed that the plant was replaced on May 11, 2006.
Chairman Bowden noted from one of the Exhibits that one of the out -buildings was not
repairable and was to be torn down. She asked staff whether the building could be replaced if it
is torn down. Attorney Collins said it depended on what building it was, and the usage. Ms.
Wakefield said the particular building was used by their case management staff for counseling,
and at the time they sold the facility, it was not torn down.
Attorney Henderson asked Ms. Wakefield if correspondence shown to her was a record
of the payments made by New Horizons for electric utilities, and she answered affirmatively,
noting that it was from the time period of June 23, 2005 through April 25, 2006.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 6 — copy of
payments made by New Horizon for electric utilities)
The Board and Ms. Wakefield discussed when the building was torn down. Ms.
Wakefield said the building was subsequently destroyed by the hurricane but was still standing
when they sold the property. Chairman Bowden therefore needed to know whether it could be
April 24, 2008 27
Special Call Meeting (The Source)
rebuilt under the grandfathering provision, and Director Keating replied affirmatively, noting
that if a structure is destroyed by a storm or disaster and a national disaster is declared, it can be
rebuilt; and there was no timeframe limitation on that.
Commissioner O'Bryan clarified with Ms. Wakefield the timeline when electric power
was lost due to hurricane Wilma on October 25, 2005, and seven months later, on May 15, 2006,
was when the Mobile Crisis Team moved into the administration building. Ms. Wakefield
responded affirmatively, and pointed out that it was in April, however, that they noticed there
was no electric power to the site, and power was restored on April 18. She responded to further
questioning from Commissioner O'Bryan regarding electric payments, the date of closing, and
what had happened to the May and June electric payments.
Commissioner Flescher requested that the overhead projection of the site be brought
back. Ms. Wakefield, upon request, pointed out the damaged structureibuilding in question.
ATTORNEY 01HAIRE CROSS-EXAMINED MS. WAKEFIELD
Ms. Wakefield, in response to questions regarding her employment with New Horizons,
said she was never employed by Alcohope. She gave a history of ownership of Alcohope, Inc.,
which she said was formed in the year 2000; New Horizons had administrative responsibility for
Alcohope until it transferred to its new location at Hanley Hall in April 2005; and Alcohope's
personnel were paid by New Horizons. To the question of who was running Alcohope, she said
Alcohope's staff and Executive Director were staff members of New Horizon, and New
Horizons was running Alcohope until the time they moved in 2005.
Ms. Wakefield answered further questions regarding use of the facility after Hurricane
Jeanne. In response to staff's statement that the County has no record of any building permits
April 24, 2008 28
Special Call Meeting (The Source)
issued for repairs, permanent or temporary, she recalled that repairs were made by their
maintenance staff, which she classified "temporary repairs"; the roof had significant damage, and
the photos displayed earlier showed that even in 2005 there was still blue tarp on the roof, so
there would not have been applications for permits.
Ms. Wakefield admitted that in October 2004, she moved residents back into the
Alcohope facility and they stayed until Hanley Hall opened in April 1, 2005. She responded to
questions of the time the Mobile Crisis Unit moved in (in May 2006), when power was restored,
an inoperable water treatment plant, removal of furnishings by the maintenance crew, whether
there was furniture when the Mobile Crisis Team moved in, and the Jones and Jones report.
Attorney O'Haire questioned the Listing Agreement, in particular, the occupancy clause
that states, the "property is not currently occupied by a tenant." He noted that the Agreement is
dated December 6, 2004, and asked if that was a correct statement on the Listing Agreement.
Ms. Wakefield said that was not a true statement; was not aware that the listing
agreement was not signed by anyone. She was sure the Agreement was put into effect because
Lowe's was the Realtor that managed the closing for the Source in July. She knew that they sold
it, but did not know whether it was according to the terms of this listing.
Attorney O'Haire objected to the Listing Agreement because it was never signed by
anyone, and to the Jones correspondence as being irrelevant. He explained to Vice Chairman
Davis the basis for his objection to the Listing Agreement.
Ms. Wakefield responded to questions from the Board of whether a fully executed copy
of the Agreement existed. She was sure there was a signed copy on file because she had
conversations with the former CEO Mr. Quam who indicated that he put the property on the
April 24, 2008 29
Special Call Meeting (The Source)
market because he was attempting to find somebody to provide services to indigent clients once
Alcohope moved to its new location.
Attorney O'Haire, in the absence of Mr. Quam for questioning, moved that the Board
strike any testimony of Ms. Wakefield about what Mr. Quam might have had to say because he
was not present for questioning.
Attorney Henderson suggested to the Board that the value of this documentary
evidence, they could judge for themselves as to whether to give it credibility or not; and further,
that a Motion to strike at a hearing like this was not appropriate. He contended that the
documents (Jones & Jones - Exhibit 4) are relevant in the sense that it shows in monetary terms
the extent of the damage that existed on this property.
Attorney O'Haire continued his questioning of Ms. Wakefield regarding repairs to the
administration building at the time of purchase of the facility. She said the repairs were made
from the period of February 2006 to April 14, 2006, without water and without power.
The Chairman called a break at 2:06 p.m., and reconvened the Hearing at 2:21 p.m.,
with all members present.
ATTORNEYHENDERsoN CALLED PASTOR CRAIG BRIDGERs
Craig Bridgers, 6109 Sunset Boulevard, Fort Pierce, Senior Pastor of The Crossing
Community Church, at the request of Attorney Henderson, shared with the Board how his
interest was perked in this property and what took place during late 2005 to early 2006. Mr.
Bridgers explained his purpose for the property purchase, and how he became aware of the
subject property. He recounted how his initial contact was with Hanley Hall, which referred him
to Realtor, Mr. Lowe, who told him of New Horizon. He said they already had collaboration
April 24, 2008 30
Special Call Meeting (The Source)
with New Horizons in District 19, so he bypassed Mr. Lowe and contacted Mr. Bob Quam, and
was subsequently introduced to Linda Wakefield. Mr. Bridgers disclosed that they never signed
a contract with New Horizons to buy the property; they were only collaborating together to work
as agencies for the betterment of the individuals. He acknowledged that he obtained an estimate
for repairs of the property from Jones & Jones, which he identified as Exhibit 4.
Attorney O'Haire questioned Mr. Bridgers regarding the time he broke into the
Alcohope facility (June 2005) and whether there was anyone occupying the property at the time.
He saw no one there at the time; O'Haire's objection to the Jones & Jones estimate is that it is
not relevant in relation to something that never came to be or passed.
Attorney Henderson explained to Vice Chairman Davis the relevance of the Jones &
Jones documents, which he introduced to show the extent of the repairs necessary as it relates to
the condition of the property.
ATTORNEYHENDERSON CALLED TOM KING
Tom King, 5525 16th Street, Vero Beach, Pastor & Executive Director of IM Ministries,
under questioning by Attorney Henderson, explained the difference between The Source and I
AM Ministries, stating that I AM Ministries is a 501C3 non-profit corporation, doing business as
The Source. He explained how he became interested in the site at 37th Street, and how he sought
to acquire the property. He signed the contract, and requested a letter from Planning & Zoning
(P&Z) staff that the use he intended would be permitted; and he received a letter from P&Z staff
dated July 10, responding to use of the property.
Mr. King thought the closing took place July 28 although Attorney Henderson had said
earlier that it was July 31St. He admitted seeking mortgage financing of $200,000.00 with U.S.
Trust, and confirmed as correct the document shown to him by Attorney Henderson, reflecting
April 24, 2008 31
Special Call Meeting (The Source)
a summary and detailing expenditures by The Source, for the subject property, including the
purchase price, and certain repair work that was done by Mr. King. He disclosed that they have
a $500,000.00 commitment with exception of the grant expenditures for the reconstruction. He
stated that he had spent $65,800.00 since the closing, for repairs and restoration of the property,
and he described some of the work done on the property representative of the $65,800.00.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 7 — Life Recovery
Center expenditures as of 04-15-08)
Attorney Henderson continued questioning Mr. King regarding money spent on repairs
of the property after the purchase in July 2006.
Mr. King replied that they finished up the plumbing and electrical work, and explained
why the project was delayed until February 13, 2007. In answer to the question of what he
would do with the property if he is unable to use it for the intended purpose, Mr. King said he
probably would have to look at what options are available to him, perhaps go into affordable
housing or sell it. He affirmed that an appraisal was obtained in connection with the purchase of
the property, ($450,000.00) and at that time they were operating under the assumption of
approved use. He divulged that the appraisal stated that the value in use was $230,000.00.
(Clerk's Note: entered into evidence by Attorney Henderson, Exhibit 8 — copy of Boyle
& Drake, Inc. Appraisal)
ATTORNEYO'HAIRE CROSS-EXAMINED TOMKING
Attorney O'Haire questioned Mr. King in connection with his purchase of the property
and at what point he got a lawyer involved.
April 24, 2008 32
Special Call Meeting (The Source)
Mr. King recalled that during the process of purchasing the property, he had legal advice
from Jim Shroener, the Attorney who sits on their Board, and they later reserved the services of
Attorneys Bruce Barkett and Steve Henderson after they had been notified that Attorney O'Haire
had sent a letter. To the questions of what he did to verify his entitlement to an Alcohope sort of
use for the property, and whether he made any independent effort to verify that he would be able
to use the property, Mr. King replied that they contacted New Horizons. He acknowledged that
an attorney attended the closing with him; and he had not obtained affidavits from anyone
connected with New Horizons or with Alcohope as to what their use of the property had been
and what period of time it might have covered. He admitted that at the time of closing,
everything was not repaired and in working order.
Attorney O'Haire had no further questions, and Attorney Henderson said that
concluded their presentation.
ATTORNEY 0IHAIRE QUESTIONED COUNTY STAFF
Attorney O'Haire, before his presentation, asked Planning Director Stan Boling if he
had reviewed and approved the letter written by John McCoy on July 10, 2006. Director Boling
recalled that he was gone during the period the letter was sent, and did not think he saw it before
it was sent out.
Attorney O'Haire asked further if Director Boling had made any effort to verify,
investigate or do any due diligence past what the letter from Tom King requesting a letter from
staff set forth. Director Boling said staff investigated the zoning, the use, some of the history of
the property, and what the use had been on the property. He believed John McCoy had an
understanding that there had been some use of the property and that there had been some
hurricane damage to the property. To the question of whether or not he knew if he or anyone
else from staff talked with Alcohope about the property, he replied that he was not aware of that.
April 24, 2008 33
Special Call Meeting (The Source)
PRESENTATION BYATTORNEY 01HAIRE
Attorney O'Haire argued that this is a stealth land use decision because it was made
without notice to anyone, without an opportunity for anyone to be heard, and without an
opportunity for an estoppel. He deemed that a huge part of the problem is that the due diligence
that should have been done in connection with the six -figure closing of a non-residential property
just did not get done. He reminded the Board of earlier arguments about estoppel and reliance on
the letter; he talked about how real estate lawyers operate in these instances; and disclosed that
he talked with Attorney Bruce Barkett who said he doesn't know anything about the property, or
any use of the property before his client, The Source, purchased the property.
Attorney O'Haire viewed talk of estoppel as a meaningless concept, when one has not
taken any actions to protect oneself. He voiced that we all know, and it's clear from staff's
treatment of the matter, that residential treatment centers are permitted in only one residential
category under current zoning (M8-10) the high density category; and they are not permitted in
the subject area under the zoning unless they are legitimately grandfathered. He said the facility
started out as a summer camp for kids, which is a lot different from a residential treatment
facility for recovering alcoholics, and different from the sort of homeless refuge that has been
proposed. He believed the use is only permissible if it is appropriately grandfathered, and he
suggested to the Board that it is not a compatible use with the homes around it.
Attorney O'Haire referenced section 904.08 of the Code, which, he said, is really what
this issue and this part of the appeal is all about, and what PZC considered and had based its
decision on. He cited a portion of Code Section 904.08(1), "Cessation of a nonconformity for
one year" that states, "If, for any reason, a nonconforming use of land, a nonconforming
structure or an establishment having a site -related nonconformity ceases operation for a
continuous period of one year or more, all nonconformities shall be considered terminated and
shall not thereafter be reestablished."
April 24, 2008 34
Special Call Meeting (The Source)
To show that these entities are completely separate and independent of each other and
have been since the year 2000, Attorney O'Haire submitted into the record a Report from the
Secretary of State's Office, which described Alcohope as a separate and independent entity from
New Horizons of the Treasure Coast, whose principal address is 4500 West Midway Road, Fort
Pierce, Florida and as of 2008, the address of Alcohope is 3395 11th Court.
(Clerk's Note: entered into evidence by Attorney O'Haire, Exhibits I & 2 — copies of the
registration with the Florida Department of State, Division of Corporations, for Alcohope of the
Treasure Coast, Inc., and New Horizons of the Treasure Coast, Inc.)
Attorney O'Haire alluded that what has to be shown in order to terminate a
nonconforming use is an intentional abandonment of a piece of property, and suggested to the
Board that they are able to show that, in the case of Alcohope. He presented a copy of the Lease
Agreement between Alcohope of the Treasure Coast, Inc., and Health Systems of Indian River,
Inc., (Exhibit 3) and called attention to certain provisions of said contract which he deemed were
significant to whether or not there was a legitimate grandfathering that The Source can
piggyback on.
(Clerk's Note: entered into evidence by Attorney O'Haire, Exhibit 3 — Lease Agreement
between Health Systems of Indian River, Inc., and Alcohope of the Treasure Coast, Inc. )
Attorney O'Haire argued the issues of Alcohope's contractual obligation to build, and
its intent and commitment to move the facility from 37th Street. He pointed to the Lease
Agreement [page 5 (c) ] that states that the Treatment Center shall be completed and a certificate
of occupancy for the Treatment Center shall be issued and received no later than the 1St day of
September, 2004. Therefore, he discerned, if things had gone according to plan they would
have been in their new facility before Hurricanes Frances and Jeanne hit the County.
April 24, 2008 35
Special Call Meeting (The Source)
To show that Alcohope and New Horizons had severed relationship before October 2003,
Attorney O'Haire cited portions of the Lease (Page 13, subsection (d)) which stated that "Lessee
has recently amended its Articles of Incorporation to remove as its sole member, New Horizons
of the Treasure Coast, Inc. At the same time, he said, the Hospital Corporation subsidiary and
Alcohope of the Treasure Coast entered into an Ingress Egress Drainage and Utility Easement
Agreement providing Alcohope the right to use hospital infrastructure, which was also dated
October 9, 2003, and recorded in the public records (IRC) November 11, 2003 .
(Clerk's Note: entered into evidence by Attorney O Haire, Exhibit 4 — Ingress/Egress
Drainage and Utility Easement Agreement)
Attorney O'Haire concluded that it was clear that in 2003, Alcohope had the intent and
the commitment to move its facility to the hospital campus, and they had leased the property to
do that. He provided proof from an Alcohope 2005 Newsletter which reads, "Alcohope has
moved - New address above."
(Clerk's Note: entered into evidence by Attorney O Haire, Exhibit 5, Alcohope's 2005
Newsletter)
Attorney O'Haire noted that attached to the exhibit was the April 2005 calendar, which
showed that the meeting dates in the Newsletter coincided with the calendar for 2005, and that
indicated that Alcohope had moved everything away from their former facility, and in
accordance and agreement with its commitment of 2003, to the Indian River Hospital subsidiary.
He also noted that there was admission on the part of The Source that this happened, as shown in
the letter from Bruce Barkett to John McCoy, dated September 27, 2006, confirming that
Alcohope had left the 37th Avenue property in April of 2005.
April 24, 2008 36
Special Call Meeting (The Source)
He summed up the reasons why New Horizons therefore has no interest in or right to
occupy the Alcohope site because they were piggybacking also on the Alcohope use of the
property, which has ceased to exist. He argued that there was nothing to show occupancy or use
of the property from the period April 2005 until May 2006; May 2006 was simply too late under
the provisions of our zoning ordinance; and that the storms could not have had anything to do
with the decision to abandon the facility. He argued the issue of abandonment and called Steve
Metz to attest to the facts of abandonment.
ATTORNEY O'HAIRE CALLED STEVE METZ
Steve Metz, 5980 37th Street, in response to questions from Attorney O'Haire, described
the location of his home in relation to the subject property. He has lived at his current location
since 1986 and has a clear view of the property from his residence. He could recall a time when
the Life for Youth Camp was located at the Alcohope facility; and the last time he saw the
property in use was when his wife visited the property and informed him that it looked like the
occupants had vanished overnight and left the doors open. He also recalled that the property
might have been vacant months before the storms rolled in; and he visited the site after it was
abandoned because he liked to visit the pond and fish.
Mr. Metz recounted that in 2004, prior to the storm when he went on the property, he did
not observe anyone there - no office workers, no cars, no one who looked like they were living
there, and there were open doors. He said there were no signs of occupancy or life on the
property back then, and did not notice any use of the office building in the complex. His
personal observation was that all use of the property was abandoned for over a year. He recalled
that the use stopped before the storms and he did not see any use after the storms.
April 24, 2008 37
Special Call Meeting (The Source)
ATTORNEYHENDERSON CROSS-EXAMINED MR. METZ
Attorney Henderson reminded Mr. Metz of the testimony of Linda Wakefield who
testified that residents were on the property prior to the storms; they were moved out for a period
of time; they reoccupied the property and then moved out entirely on April 1, 2005. He asked
Mr. Metz if he disagreed with that.
Mr. Metz said he disagreed because he did not recall it, and he did not know if Ms.
Wakefield was lying. Mr. Metz recounted how he visited the property about 2, 3, or 4 times a
week, riding his bike, and there was no one there, or any "no trespassing" signs. He said it
basically became a neighborhood hangout; and he had done those activities with friends,
neighbors, and his kids.
ATTORNEY 0IHAIRE CALLED ERINMETZ
Erin Metz (nee O'Haire), 5980 37th Street, recollected that it was before the hurricanes
that she noticed the site was totally abandoned. She frequented the property with her kids, before
the storms, and saw no signs of life there at all; nor any parked cars, office workers, nor anybody
who looked like they have been living there. She had never seen anybody there since she had
been going on the property. She recalled that it was May of 2006 that she first observed a "For
Sale" sign, and she was certain because she had called the week before and was told they were
going to begin using that front building for their case workers working out in the fields, so they
could have some place "to land" instead of having to return to their office in Fort Pierce. She did
not observe, for the preceding entire year, anyone using the office.
ATTORNEYHENDERSON CROSS-EXAMINED Ms. METZ
Attorney Henderson reminded Ms. Metz that she and her husband made reference to the
status of the property before the storm, and noted there was a storm (Hurricane Wilma) in 2005
as well. He asked Ms. Metz if she was sure she was not confused as to the identity of these
April 24, 2008 38
Special Call Meeting (The Source)
hurricanes. Ms. Metz replied that to the best of her knowledge it was before the 2004
hurricanes, because she did not believe they boarded up for the 2005 hurricanes.
ATTORNEY 0 IHAIRE CALLED KEITH HEDIN
Keith Hedin, 6030 37th Street, has lived at this address since 2002 with his family, across
the street from Alcohope. He explained that he has had occasion, everyday, coming and going
from his house, to look into the Alcohope property; and that prior to the 2004 storms he
trespassed on the property when he rode his ATV in the lake. He remembered the property was
vacant before and after the storm, and could not state specifically the date Alcohope packed up
and left, but was sure it was prior to the storms of 2004. He could not say that anybody else
occupied the property after Alcohope left, and the only activity was when the new owners bought
the property and moved in dumpsters, and semi -trailers, among other things, and that was in
2006.
Mr. Hedin observed that by that time the property had been continually abandoned for
more than a year. He also noticed that doors, air conditioning and window units were gone, and
there was no one there. The only real repairs, he noticed, happened in 2006 when the new
owners took over. Mr. Hedin said he researched and found out that the roof did not get permits
(for repair work) until 2006. Mr. Hedin obtained roofing, plumbing and air conditioning permits
for September and October 2006, from the County, the first time any permanent repairs had been
done.
(Clerk's Note: entered into evidence by Attorney O'Haire, Exhibit 6, Permits — I
Mechanical, an inspection history print [remodel bathrooms] and 4 roofing)
April 24, 2008 39
Special Call Meeting (The Source)
Mr. Hedin, in response to the question of whether he was sure, in his own mind, that the
property was abandoned at some point prior to the storms of 2004, replied, "Absolutely." He
was also absolutely sure that the facility was abandoned for at lease a year continuously before it
was purchased by The Source in May of 2006. He never observed any repairs being done, and
said the only repairs that happened were the blue tarps placed on the roofs, but the building was
never occupied. He attested to the abandonment of the property, revealing that he was the one
who told Waste Management to stop coming because there was no one there, and he had asked
the driver of the Florida Gas propane truck if it was not kind of odd that he kept coming and not
putting anything in. He said the building was wide open and he could have taken anything he
wanted.
ATTORNEYHENDERSON CROSS-QUESTIONED MR. HEDIN
Mr. Hedin, in response to questions from Attorney Henderson, said he moved into his
residence in 2002; built his own home; and was aware of the use of the property as an Alcohope
facility.
ATTORNEY 0IHAIRE CALLED RAYMETZ
Ray Metz, 5960 37th Street, (without questioning from Attorney O'Haire) spoke about
his timeline, the Source's timeline, and the decision the Board has to make (whether the
residential treatment stopped for over a year.) He too believed Alcohope moved out around the
time of the first hurricanes. He did not go on the property in 2004, but after that, and in
subsequent years, he frequented the property with his kids. As he rode on the property, he could
see doors left open, air conditioning units had been stolen, and windows were broken.
Mr. Metz exhibited and talked about a letter from John McCoy to Bruce Barkett seeking
to know what happened on that property. He read the response to Mr. McCoy, and presented
April 24, 2008 40
Special Call Meeting (The Source)
more evidence to show there was no residential treatment taking place in the period discussed.
He compared timelines from staff and Linda Wakefield and insisted there was no activity, and
that the property was vacant during the period. He resides across the street from the subject
facility with his wife and five children, and declared that this is a commonsense issue and a
safety issue. He argued the use of the property and asked staff how the County would react if the
use is allowed, and Mr. King sells the property, and the new owner wants to turn it into a
residential treatment center for sexual predators.
Director Boling was not sure that was an issue they would get into. To get into that
issue of use, staff would probably have to look to see if there were any other laws, State or
County.
Mr. Metz reiterated that this was a safety issue, especially for children, and he was
concerned because there was the potential for 18 convicted criminals to be living across the
street from his home. He wished the facility could be placed in another area that is suitable,
remarking that it doesn't belong in any neighborhood.
The Chairman called a break at 3:46 p.m., and reconvened the Hearing at 3:57 p.m.,
with Administrator Baird absent.
Attorney O'Haire resumed his arguments by reflecting on the timeline prepared by
Linda Wakefield. He pointed out that the timeline (chronology: Alcohope, p. 128 of backup)
showed that on April 1, 2005 residential clients and telephone services linked to the Alcohope
program were moved to Hanley Hall, and reasoned that since Case Managers have already been
relocated, all facilities on campus were now vacated. On May 15, 2006 (according to page 129
of the backup chronology) the Mobile Crisis Response Team members Chris Paganelli and
Robert McGuire moved into the Administration Building. That was too late, he argued, because
that was more than a year later, and there was no grandfathering anymore for any purpose at all.
April 24, 2008 41
Special Call Meeting (The Source)
Attorney O'Haire suggested that all that was heard about timelines occurred after John
McCoy wrote his letter; none of it was available to John McCoy when he wrote his letter, and the
Planning and Zoning Commission zeroed in on that point and chastised Planning. He concluded
his presentation by introducing an audio-visual clip of the Planning & Zoning Commission
meeting of 12/04/06 to show what transpired at that meeting.
(Clerk's Note: entered into evidence by Attorney O'Haire, Exhibit 7, a CD of PZC
meeting of 12/04/06 discussing Alcohope/New Horizons and The Source)
(Clerk's Note: Administrator Baird returned at 4:02 p.m.)
Commissioner Flescher requested clarification to earlier comments by Ms. Metz that
she was told that "the group would have a place to land." Ms. Metz's understanding was that
case workers in the field would have a place to sit down to work, without having to return to
their office in Fort Pierce. The only activity she saw at the facility was in May when she
witnessed a couple cars there, just before the "For Sale" sign went up.
ATTORNEYHENDERSONRE-CALLEDLINDA WAKEFIELD
Attorney Henderson reminded Ms. Wakefield of the Metz's statements that prior to the
storms the facility looked abandoned and stayed abandoned until May 2005. Ms. Wakefield
reaffirmed her prior testimony that residents were in residence immediately prior to the
September 2004 hurricanes.
Ms. Wakefield affirmed that the facility was evacuated due to Hurricane Frances; and
that the residents were moved back in for a very brief time after Hurricane Frances had passed.
She also recalled that Hurricane Jean forced another evacuation. In response to whether there
April 24, 2008 42
Special Call Meeting (The Source)
was a time after Hurricanes Frances and Jeanne that the residents were moved back in prior to
their departure on April 1, 2005, Ms. Wakefield said it was October 5, 2004. Attorney O'Haire
asked Ms. Wakefield if she could explain why the place might have appeared vacated to area
residents in 2004, and she thought perhaps they were confusing the hurricanes (Wilma versus
Jeanne and Frances). Looking at her journals, she was positive that her timeline is accurate.
Chairman Bowden asked Ms. Wakefield if she physically saw people at Alcohope
during the questioned period. Ms. Wakefield saw them there in early 2005 (February maybe).
Vice Chairman Davis also questioned the time period of occupancy, where, according to
Ms. Wakefield's testimony, the facility was vacant 4/1/05 and it was not reoccupied until
5/16/06, which is more than a 12 -month period.
Attorney Henderson said they conceded that and explained that they have not been
arguing that. He said the intended use of the property by The Source is really irrelevant, but there
has been testimony regarding that and he felt like he must clear that up, and would ask Tom King
to return for questioning.
Commissioner Wheeler said if it would make a difference, he agreed with Attorney
Henderson, and felt the testimony and what the use of the facility is, was irrelevant. He
explained why it made no difference.
COMMENTS FROM COUNTY STAFF AND BOARD MEMBERS
County Attorney William Collins presented the issue as it has been framed by Attorney
O'Haire "that there has been cessation of use for over a year," noting that even by the
chronology of New Horizons as presented (at page 128 of backup) and the burden of proof
approving abandonment of non -conforming use, lies with the party asserting that abandonment.
April 24, 2008 43
Special Call Meeting (The Source)
He stated that The Source has shown through its own testimony and the chronology of New
Horizons that the property was not used or occupied at least for a period of over one (1) year;
and that creates the presumption of an intent to abandon the property and puts the burden back
on the property owner to rebut the presumption of abandonment, and that would be up to
Attorney Henderson to do at his closing.
Attorney Collins argued that ultimately there was a contract because there was a later
contract with Lowe's Realty in which the property was sold from New Horizons to I AM
Ministries, despite the unsigned listing agreement which Attorney O'Haire objected to earlier.
He reminded the Board that the argument is, the listing agreement showed there was not a
consistent attempt to sell, but the issue for the Board is, was there an intent to abandon or were
they making good faith efforts to have the property put in a status where it could be occupied.
Attorney Collins discussed the rule of abandonment, and whether the effort to put the
property back in use was made. He pointed out that there has also been some evidence with
respect to the hurricane permits, that the permits were not applied for in 2004/2005, but there
were blue tarp temporary repairs done to protect the property; and that the permits were not
actually applied for to do the repairs until two years later when I AM Ministries/The Source had
actually closed on the property. He felt that was attempting to demonstrate that there was no
effort by the Sellers to do repairs during that period, when they could, under the hurricane
reconstruction period, have gotten more than one year for cessation. He submitted to the Board
that the rule being argued was, if use ceases for any period greater than a year, it is considered
abandoned and nonconformity is lost.
Attorney Collins noted that the exception that the staff pointed out was for hurricane
situations where there were no reconstruction timeframes, and the ability to put property back in
use may take substantially more than one year. Therefore, the issue perhaps is, was that effort
put forward to get the property back in use or was it simply marketed haphazardly and any
April 24, 2008 44
Special Call Meeting (The Source)
improvements done by the seller after closing. That was generally how he understood Attorney
O'Haire's arguments, and felt it was in Attorney Henderson's court, in the Closing, to show that
there was not intentional and voluntary abandonment; and that there were consistent efforts to go
forth and make the useable property as it formally had been used as a residential treatment
center.
Director Boling reiterated that staff had reviewed this and partially relied on data from
Mr. Barkett's letter dated September 27, 2006. Looking at the timeline, he asked if there was
some portion of the site used or some component of the residential treatment center use going on,
intermittent or sporadic, or did the use completely cease for any 12 -month period. Under the
reconstruction aspect of Section 904, he asked if that modified or applies to the cessation of use.
Director Boling argued other points of consideration as follow: If the Code says you are
allowed to rebuild a nonconforming use or structure that houses a nonconforming use, do you get
to use it; does the Code allow you to rebuild a structure that has been damaged by the hurricanes,
but not let you use it for the previous use or not. He said staff's reading of Section 904 and the
practice of the County has been to allow that timeframe to be modified when there is hurricane
damage involved, and there is nothing in Section 904, he continued, that speaks to how long one
has to recover from a hurricane. Therefore, we do not apply one (that provision) and have not
done so for people recovering with repairs.
Commissioner O'Bryan questioned staff regarding Section 904 of the Code that deals
with hurricanes and recalled that said section referenced another section of the Code. He asked
Director Boling if that was correct.
Director Boling affirmed it was correct, and elaborated that that specific Section of the
Code that is referenced had to do with the 50% threshold (if a building is damaged, 50% or less
one could rebuild it; and if it is damaged 50% or more one could not rebuild it.)
April 24, 2008 45
Special Call Meeting (The Source)
Commissioner O'Bryan's next question was to County Attorney Collins, asking if
Alcohope moved all their activities on April 1, 2005, and they were no longer affiliated with
New Horizons, then was it a moot point whatever happens after that because it was not under
Alcohope, which was the owner of the property, and they had disassociated themselves from
New Horizons.
Attorney Collins said the fact that the tenant left to go to Hanley Hall does not mean that
the property loses its status as nonconforming. He thought it was then up to the owner to
maintain that nonconforming status through reconstruction or sale or lease to a new tenant.
Commissioner Flescher asked staff what waivers, amnesty, or lack of obligation was
applied, for the permitting process for residential or commercial, at the time of hurricanes.
Director Boling explained the provisions of the reconstruction (the 50%) rule, saying there was
nothing in the Code, and we have not applied a timeframe, for how long a person may take to
effect repairs because of damages from a hurricane. He said if there was no amnesty one needed
to have a building permit.
Vice Chairman Davis needed clarification on the 50% rule of grandfathered structures,
and Director Boling explained the section of the Code that deals with reconstruction of non -
conformities.
Chairman Bowden asked Director Boling to explain how damages are assessed, and
Director Boling said it was with difficulty, because they have to determine which building was
damaged because of a hurricane and which was not.
Commissioner Wheeler asked how staff determined if the grandfathered clause applies
to this; and would they have ruled the same way knowing and hearing all they had today.
April 24, 2008 46
Special Call Meeting (The Source)
Director Keating said it keeps getting more confusing and the facts keep getting more
muddled. He said they were still operating under the provisions in Bruce Barkett's letter, that
there was a crisis counseling staff out there from right after 2005 until 2006. Therefore, staff s
determination was based on the fact that the use never completely stopped. However, hearing
both arguments, he felt they were even more unsure after today than they were before.
Commissioner Wheeler remarked that after today, we need to look at our procedure on
these things.
CLOSING ARGUMENTS BYATTORNEYHENDERSON
Attorney Henderson, sought to disprove cessation of use, based on the earlier testimony
of Ms. Wakefield. He admitted that the property was vacated on April 1, 2005 by residents and
that buildings were in use by employees, the Mobile Crisis Response Team that moved back in
on May 15. Therefore, at first glance, one might argue that there is a one-year period that the
property was not in use, and therefore the ordinance requires that the nonconforming use is no
longer valid. But he is saying that is not quite the case, and it is not the proper analysis, because
there has to be shown an intent to abandon the use. He referenced an earlier point by Attorney
O'Haire who contended that Alcohope signed a lease in 2003 to move elsewhere, which proved
they intended to abandon their operation. That, he felt, was not the criteria, because according to
testimony they did not move out until April 1St
Attorney Henderson argued that the criterion was, what did New Horizons intend. He
recapped the testimony from Linda Wakefield and the Pastor from the Crossings which purports
that there was an effort being made from April 1, 2005, all the way to the acquisition of the
property by The Source, to find a buyer for the property that would use it as a residential
treatment center. Ms. Wakefield also testified that the Director of New Horizons recognized the
April 24, 2008 47
Special Call Meeting (The Source)
fact that the facility being built at Hanley Hall was going to be a "for -fee" facility, that they
needed a place for residential treatment facility at no fees.
Attorney Henderson referenced the one-year listing agreement with Lowe Realty,
starting in December 2005 and ending December 2006, to show there was proof of activity that
the owner of the property, New Horizons, was attempting to find a buyer for the property. He
believed that the proof that they submitted concerning that listing of the property for sale, rebuts
any presumption that there was an intent to abandon on the part of New Horizons. And that, he
contends, fits squarely within the Lake Worth case discussed earlier.
Attorney Henderson felt that the activity regarding repair to the property that took place
from the end of the hurricanes of 2004 and at various points in between, also shows a lack of
intent to abandon the property, and that it fits squarely within the Bow Point Case cited earlier,
where the motel owner was conducting repairs for a period of 18 months and the city in that case
was trying to shut them down because he had gone over the one year. Therefore, that should, on
the issues of cessation only, lead the Board to a conclusion that there was no intent to abandon
the use of this property by New Horizons. Adjunct to that, he said, there was the hurricane
ordinance, and they have submitted proof that there were in fact three hurricanes during that
period of time (Frances, Jeanne & Wilma), all declared natural disasters. Therefore they think
this property qualifies under that ordinance; and as Director Boling indicated, the ordinance has
been interpreted consistently in this County as excusing an owner of a nonconforming use of
structure from the application of the one-year cessation period. He pointed out that in the John
McCoy letter dated October 3, 2006, it is shown that staff relied heavily upon that ordinance; and
relied more on that than on the question of whether there was a complete cessation of use of the
property for a period of one year.
Attorney Henderson, in conclusion, reminded the Board that he had mentioned earlier
the concept of equitable estoppel. He remarked that he did not have a realistic expectation that
April 24, 2008 48
Special Call Meeting (The Source)
the Board would rule that they are estopped from reversing this, if that was what they wanted to
do, because most Boards would not agree with equitable estoppel. He argued that when his
client signed the contract to buy the property, the client conducted due diligence and conducted it
in a manner that was sufficient. He believed that if one gets a determination letter from the
County, they should be able to rely on that and not have to conduct their own investigations into
the facts on which the County relied.
Attorney Henderson then alluded to Attorney O'Haire's criticism of The Source for not
hiring an attorney to look into the background of that determination, and asserted that being a
lawyer for a long time, he would have accepted that kind of determination letter as being reliable.
He pointed out that to date, his client has spent over '/2 million dollars on this property, which
will not be recovered, if they are not able to develop this residential treatment center. He
believed Attorney O'Haire's witnesses are confused on the question of when the property was
vacated, because Hurricane Wilma occurred in October 2005 and at that time the property had
been vacated, so if that is the hurricane they are thinking of, then there is no inconsistency in the
testimony. But if they are talking about prior to September of 2004, The Source's testimony and
the proof presented shows that the property was actually occupied by residence during that time.
He noted that when questioned about whether the property had been vacated prior to the storms
of 2004, the witnesses used expressions like, "I believe," "to the best of my knowledge," and
giving the benefit of the doubt, Attorney Henderson believed they are confused as to 2005 and
2004. He reserved the right to make a final response.
CLOSING ARGUMENTS BYATTORNEY 0IHAIRE
Attorney O'Haire began with the issue of whether there was confusion of the date of the
hurricanes, and argued that there was no confusion and that the witnesses knew which storm they
boarded up for. He therefore did not think confusion was an issue, and felt the real basic issue
April 24, 2008 49
Special Call Meeting (The Source)
was not any use of the property by New Horizons, because New Horizons did not use it for
anything until Alcohope had left. He pointed out that what The Source is trying to do is to
piggyback on Alcohope's use of the property, and it is known that Alcohope, in October 2003
had made the decision, and not just an intention, but had made a legal commitment to leave that
property before there were any storms, by signing a lease with the hospital entity, and promising
to build a new facility on the hospital campus.
Attorney O'Haire argued that there is no ambiguity that Alcohope intended to abandon
the property, because they did on April 1, 2005. He suggested that there could be no debate or
arguments in that regard because there was no one from Alcohope to counter what Alcohope
actually did, and that was, they promised to leave in 2003 and left in 2005. He alluded to
references from Attorneys Henderson and Vitunac about a case involving a property owner who
had the intent to lease the property, and felt that was not the same as having an intent to sell the
property. He argued that when one leases a retail property and intends to continue to lease it,
that person intends to use it as retail to successive tenants. But when one intends to sell a
property one has no control over what a new owner is going to do and so the intent is not to have
a continuing use. He contended that it cannot be, because it is not going to be your use once you
sell it. He further argued that an intent to sell is not the same as an intent to lease, because it
does not indicate any intention about what use the property would be put to. Therefore the cases
do not give any guidance at all.
Attorney O'Haire thought the hurricane waiver was a total "red herring," because
Alcohope was leaving before there was any storm; and they left after the storm had occurred, as
they planned to do before there was any storm on the horizon. Therefore, they are not entitled to
any additional time for repairs. He argued that New Horizons use of the property was all through
the testimony of Ms. Wakefield, and questioned where were the people she claimed were
working on the property after April 1, 2005, and why we have not heard from any of those
April 24, 2008 50
Special Call Meeting (The Source)
workers. Attorney O'Haire contended that the neighbors know best and they did not hear from
anyone who was working on 37th Street.
Attorney O'Haire submitted to the Board that there was no evidence and they have to
base their decision on what the courts call "competent and substantial evidence." In summation,
he reiterated that the property was abandoned by Alcohope; they intended to abandon it; their
intention was clear from the lease that they signed; it was abandoned, and their timeline proved
they did it. He submitted to the Board that they have no option but to say the use was not
grandfathered, and it was an incompatible and an inappropriate use. Because what was once
perhaps a compatible or an appropriate use, is not right any longer, especially after it has been
abandoned.
ATTORNEYHENDERSONIsREB UTTAL/FINAL STATEMENT
Attorney Henderson deduced from Attorney O'Haire's "excellent presentation" that he
apparently wanted a strict interpretation of the one-year provision, but a not so strict
interpretation of the provision dealing with the filing of appeals.
Attorney Henderson re-emphasized that he did not believe it is relevant as to what the
intentions of Alcohope were at the time; the arguments are about a nonconforming use; and the
owner at all times was New Horizons. He believed the question is whether they intended to
abandon this use on a permanent basis. The evidence shows that they did not, because they were
trying to find a substitute owner that would do the same thing as Alcohope was doing, and
because they were making repairs. Further, if they had intended complete abandonment, they
would have abandoned the place and not even bothered with repairs.
April 24, 2008 51
Special Call Meeting (The Source)
FINAL COMMENTS FROM BOARD MEMBERS
Chairman Bowden invited comments from all Board members.
Commissioner O'Bryan referred to inconsistencies in the evidence presented and noted
that Mr. Lowe was not there to verify the real estate lease; there was no original signed copy; and
there was no true date on the lease to show that it did go into effect. He gave his understanding
of the issues as presented, and remarked that the biggest thing in his mind was the timeline
provided by New Horizons (beginning April 1, 2005 when the facilities on campus were
vacated). There was also the June 2005 breaking and entering; and when power went out in
October 2005, which was not restored until April 2006 and then the Mobile Team came in May
2006, which, in his timeline, is greater than 12 months. Commissioner O'Bryan believed this
goes back to the 50% rebuild rule and does not apply to the continuing use criteria. He did not
see that the use was continued within the one-year period, and thought the one-year period was
valid, and therefore would deny staff's recommendation.
Commissioner Flescher remarked that there was only one timeline and everyone was in
agreement. He also discussed the timeline of April 1, 2005 when all activities ceased, and
personnel and occupants vacated the facility, up to the time (May 15 or 16, 2006) when the
Mobile Crisis Team moved in. Commissioner Flesher disclosed that he contacted staff about the
permitting process and work being attempted, and it does not appear that there was any steadfast
evidence that there were any confirmed work being done by staff. To him, the only thing that
had extreme clarity in today's process was the two dates, and that was what he rested his
decision and support upon. He acknowledged that The Source provides a well needed service to
the County.
Vice Chairman Davis did not think the subject property was in use or was occupied
during the 12 -month period to meet the requirement.
April 24, 2008 52
Special Call Meeting (The Source)
Commissioner Wheeler felt everything was said and proceeded to make a Motion.
MOTION WAS MADE by Commissioner Wheeler,
SECONDED by Commissioner Flescher, to uphold the
appeal and to deny the recommendations of staff.
County Attorney William Collins clarified that the appeal is to overturn the Planning
and Zoning Commission's (PZC) decision, and if the Board voted to uphold the appeal they
would be overturning PZC's decision.
THE MOTION
Commissioner Wheeler restated the Motion.
MOTION WAS MADE by Commissioner Wheeler,
SECONDED by Commissioner Flescher, to make a
finding that P&Z was correct.
Chairman Bowden thanked everyone for coming and being so patient. She declared that
after listening to all the evidence today, she too came to the conclusion that PZC ruled correctly.
There were no further discussions.
The Chairman CALLED THE QUESTION and the
Motion carried unanimously. The Board found that the
Planning and Zoning Commission's ruling was correct.
April 24, 2008 53
Special Call Meeting (The Source)
BK . 130 bC d83
6. ADJOURNMENT
There being no further business the Chairman declared the Meeting adjourned at 4:59
p.m.
ATTEST:
nNib--)
Jeffre K. on, er an a L. Bowden, C airman
Minutes Approved: AUG 19 2008
BCC/Special Call Meeting/The Source/AA/2008/minutes
April 24, 2008
' 6gci4bC 1VfetA (The Source)
54
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Ik 13L ` PG 982