Planning Board/Local Planning Agency Regular Meeting

be done if you do. OK, let's go ahead >> call the meeting to before we get started. want to put something on the record real quick on Monday night. The world champion Philadelphia Eagles met the Green Bay Packers and and defeated the lowly Packers for the 4th straight time. So want to send out my condolences to all Packers fans everywhere. But particularly my dear friend and colleague here on the commission to up and in the NFC Championship will be painful. Yeah, but we have crush your hopes and dreams 4 times in a row. So here's to a 5th go. Birds. All right. And having said that, let's do the Pledge of Allegiance. >> It's really to the flag of the United States of America and to the Republic for which it stands. One nation under indivisible, liberty and justice for all. >> Let's do the pledge of conduct. We may disagree but be we will be respectful to one another. We will direct all comments to issues and we will not engage in personal attacks, OK, any changes to the order of the day? No, sir. Okay. There is since there are no land use administration public hearings. And as I understand that it's no citizen input And there are no minutes to approve. >> go ahead and the presentation of topics by staff. Is there anything I mean just to roll call Thank you. >> All right, Mister Newhouse, Mister Salem, here. Mister Christie's top sent Mister Clermont are. Mister Lim a and Miss Turley year. All right. >> No, I don't want apologize up her schedule, my part, but I'm going to leave at a 2. hope will rain done as fast as we can. Any presentation topics by staff? >> Yes, we do. If you all the student for the speaker the city attorney's office conjunction with the clerk's office to implement. >> Regular train trainings for board members. >> We're hoping on Elisa annual So you many of you may have already heard a lot of these topics today. >> But some, you know, maybe not. question was other. So we're trying to establish baseline for all. And our speaker today is really more he is part of the city attorney team. He's one of our consulting attorneys. He works out of the Saint Pete Clearwater area, mainly, but he is a local government experts in the state of and does the Sipes these type of presentations all all around state. And so we're very happy to have him here today. And I will now turn it over to him. Let him give you more of an introduction to fields. Yes, Mister Moore, thank you. >> Thank you very stated, my name is Randy Moore for purposes Dam. Just some guy who is here to give you some information about how you can do your job in the public, trust better I too, as it as interesting as it is too be a local government attorney. There's different tests or practice. I served as a city attorney for 4 different jurisdictions and Pinellas We work with your city attorney's office. I litigate on behalf of cities, which is to say I get to see things when everything goes pear shaped in your defending it in court and also there's a fund these part of my practice where I travel the state, educating. didn't appointed officials on public governance. I started my day in a much, much harder room teaching 6th and 7th graders for the Great American Tchen, a local government in Florida. And I remain convinced if we did more of that meeting, we have less problems in the minute on this. And but with I'm thank you for welcoming me chambers in your meeting. We're going to be talking today, principally about 3 topics. We'll start talking about ethics and your commitment as public officials will go into public meetings. Very briefly, I know a lot of you are already familiar with this. I'm not going to, you know, browbeat. You just want to make sure you have the information to be successful. And then the last part will focus on parliamentary procedure, rules, procedure and public meetings. We approach this and the reason your city attorney's office is invited us in to do this is the idea is you can't know until you can do better. And so, you know, better. And with all the with all the impetus towards, you know, bringing outsiders perspective to local government, sometimes what's lost in the context of how government works. And so with that, starting this presentation start on my presentations, which is the Florida Constitution and the notion that a public office is a public trust and the people should have the right to secure, insisting that trust against abuse fancy words to just say, while you're all here for different reasons and volunteered your time. I I know there's not a lot of fringe benefits serving on the planning board. You're doing this because you care about your community on some level or at least have a vision that you'd like to see implemented in your community. And so the reminder is that as you're doing that you're not just doing it for number one. You're doing it for all your property owners. Residents. Guests, visitors, you're looking to build your community at large and securing. That's against abuse is all right. On the other side of the table to keep you guys to that. Now there's a whole nother presentation re going to all the restrictions in chapter one, 12 on things you can and can't do on the ethics code which it's just a rule book in Tallahassee. But for our purposes, it's really about understanding your call to service and that you shall have not any interest. That substantial conflict with the proper discharge of duties, which is to say again, no person can serve 2 masters, right? If you're here, principally concerned with number one, necessarily the city of Sarasota's losing and that calculus. And there's not it's not supposed to be an equation they're not your your needs in. The city's needs are not always one for one. And sometimes you need to have to subordinate your own concerns. Your own in service of the public trust. And that's often a difficult charge. But we're talking about conflicts. I'm not just talking about voting conflicts like, oh, I can't vote on this. Does its, you know, I'm the architect of record and it's our building. We're talking about a broader sense. The situation under chapter one, 12 and which regard for private interest leads to disregard of your public duties. The law's nothing if not redundant. So you'll hear me say the same thing. A few different ways in hopes it takes so understanding rrf your ethical charge as public officers one of the contention allies that in your body here you are the planning board of the city. You have 5 members of 6 can be appointed by the school board. There's also one alternate who has ability to participate in the proceedings except voting unless one of your here members served for 3 year It's my understanding that sailing. You surfaces for 6. Thank you for all your service to this community. Truly, I don't see that tongue in cheek. There's a lot of things I will say I can take. But this whole Democratic experiment doesn't work. If people like you don't volunteer your time in service of your communities. So thank you the membership of your body. And no should be no surprise to you. Your appointed and removed by the city commission. If any of you have been paid. Please let me know. That was an These are volunteer physicians you have staff and officers, right? You have the chairman and vice chairman and your staff secretary. You're always supported year your city attorney's office to guide the process. So that is how the EU are composed. And as as more allies in the city's code, you have a number of powers and duties actually para for his. So some of them are combined. But if you were to go Article 3 of the city's code Lanco, you'll see that it's these are your various duties. A lot of them are advisory. You are largely an advisory body provide recommendations in many instances. But you also so in that context, unlike in terms of legislating, you'll see where you initiate, review and recommend amendments to the city's comprehensive plan. Use to find consistency with the land use plan winners ordinances are changes that require that. You can review and make recommendations to the commission for Development Agreements. Review applications for minor conditional uses site plans. Some even come before you, as you know, take testimony under oath here in the side, specific types of quasi judicial hearings and we'll talk about quasi judicial hearings at some like that will probably be the media's portion of this entree. And so understanding that role really defines. You can't really build anything until we know who we are or said differently. If you don't know where you're going, you'll end up somewhere else. So before we end up somewhere else, any questions so far? I know we're we're breaking a lot of new ground here so far. Thanks for really and in through the tough stuff. So before we talk about rules of proceeding. And we we first need to understand public meetings in the state of Florida. Many of you are I'm sure familiar with the term the Sunshine Law, the Sunshine Law. Everybody talks about it like it's part of like visit Florida's cool branding for the Sunshine State. While I'm sure on some level that's on purpose. It actually comes from Justice Brandeis. In a letter he wrote to then fiancee in 18. 93. He said if the broad light of day could be let in upon men's actions that would purify them as the sun disinfects know. I've said this, pour a quote in a lot of rooms. I have yet to see a woman swoon at it section. I would put it in a letter to my paramour, but the idea was first, this was his early expiration of the idea of transparency. And then it's later memorialized in Harper's Weekly article on several decades later, he writes publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best best of disinfectants electorate like the most efficient policeman and the ideas. Again, that what happens in the sun is disinfected is not corrupt. It's out in the open. We can see it. We can hold people accountable to it. And so some light being that the best disinfectant. That's actually where this comfort comes from. Just a fun fact. at that point, we're talking about publicity as the idea of letting the public know not talking about, you know, Instagram, influencers and the like. But the idea of letting the public's business be publicized as opposed you know, something happening behind closed doors. And so from that, we get an article one section. 24 the Florida Constitution, the idea that all meetings of the municipality where official action to be taken, which public business is to be transacted shall be opened and notice to the public. That's compulsory. That's the shallot means. You got to do it. This applies to all the city's sports that are created by a law or ordinance or resolution or ordinance. And so your board at board citizen advisory boards, the commission, all of them are bound by this. And so what that means meetings of any board or commission, which official acts will be taken are declared to be public meetings. And there are specific requirements for public meetings and this is also found in the city's charts. All meetings of the city Commission shall be public. I'm memorializing that which is already said at the state. Now the courts have interpreted this is what we call the common law is just what the courts say about a lot over time and says any gathering of the members and which some matter which for civil action will be taken by the board is open to the public and the statute should be construed. So as to frustrate all of a subdued says, that's probably my favorite quote about it because all that means is if you think you found a way around the sunshine law, congratulations. You've probably found a way to violate the Sunshine Law. You know, it's all we didn't need. I put it on an afternoon. His mailbox and he left the post. It note on my door real thing I've been told, you we didn't need, but our wives got together and he told me and then I told her and then you can't do indirectly that what you can't do to another show. That's just a violation with more steps the law is supposed to be broadly construed to affect its remedial and protective purpose. Why this is important for you, folks. And why pivot to this right after we cover your powers and duties is your powers and duties defines what you folks can't talk about outside of this room. And that's true for all the boards and should any of you ascend the ranks of a city commissioner for county commissioner, one of the first things incoming elected officials often say we need to get the citizenry engaged. We need more volunteer bodies, more boards committees. We need the people. We have 5 people who love pickleball. We need a pickleball committee. Well, it's a great idea. But one of the challenges that you face is the moment you take the 5 people who care about pickleball the most put them on the committee and local government with official meetings. Those 5 people now can not talk about pickleball outside of that meeting. All right. So the powers and duties defined scope. If you folks want to get together and talk about the Packers and the Bears and any other team in the Eagles are eagles. I'm not sure, however, that it comes that's find you guys can get together and talk college football, basketball, whatever you want. >> As long as it's not about the powers and duties of the planning board that use it on. And that's really where you should be concerned. If you start saying, hey, did you see that vacant lot on 14th Street? I wonder if rezone that, you know, we can't afford to rezone that that way. That's a conversation you should not be having outside of a public meeting. I think you know that by now, but it's helpful to say here and also this is So for the benefit of your successors, should we get less than a year and a need to revisit some of these It's there. So the main take away when you're talking about the Sunshine Law is under Florida law. Any interaction between 2 or more members of the board or council if that interaction includes matters, that could reasonably come for the board is subject to the Sunshine Law. And again, you can't do indirectly or through technology that what you could not do following Twenty-twenty. There was a little spend there for about 3 or 4 years. I think we're just starting to come out of it where people kind of got either confused or perhaps comfortable are online, which We just did this. We just that and still counts. It all counts. You can each other's the M's. You can't meet in meeting. You can't pass posted notes. It doesn't matter if it's not on official letterhead, text messages, count Facebook messages, count all that stuff. A word of caution to you. Should any of you stay here and become very public in the way that you serve in this role, aureus and some other office, a social media can often be the biggest I wouldn't say trapped the challenge because one of the things that will happen is invariably let's say the city will post something that says development by Acme Corps to be heard tonight by the planning board. And you're sitting there on Facebook with nothing to do a traffic light and you don't want to have people with your own thoughts. So you just log in and you like that, right? And then another member who's got 3 hours before the meeting said sees the same post and comments can't believe we're hearing this tonight. We shouldn't be dealing with this at all. And some members of the public comes and says, oh, both of them were in the comments of that post and they were having he liked it so that he knew that he was voting in favor like And I have been in a meeting. 12 years ago when Facebook was considered new 2 adults, at least and had to explain the import or an importance of a like for purposes of the Sunshine law. So you don't want to find yourself in that position. Suffice to say. The necessary question that flows from that is Randy. If you're saying that the sunshine law governs how we need well, how do I know we were doing it right? And there's 3 basic requirements. You have to provide the city provides notice of your meetings. Now, the most effective means to provide notice is your agenda. We'll talk about that in a little bit. But funny enough, if you go to chapter 2.86, of the Florida statutes which covers the public meetings law, you will not find the word agenda anywhere. All the often local concerns about. Well, the agenda has to be at the Thursday before the Tuesday meeting. And if it's not here and it's not posted that site. That's local stuff. Those are those might be local rules and the rarely used to invalidate anything, its guidance so that we ensure fair play. But note that I'm not saying not saying you don't need an agenda again. If you don't know where you're going on somewhere else, I don't go to meetings without agendas. We need to have some direction and clarity as to what's happening typically the way we do notice is by agenda. Now, how much noticed you good lawyer? Answer defense, right? If we're sitting here in the city of Sarasota and there's some storm the Gulf and it's speak at spaghetti or fettuccine your model. We don't know where it's going and it pivots and Now we know we have to have an emergency meeting. Make it 12 hours. Notice if that if we're going to take our only cow pasture in Orange Grove left and rezoning to high industrial. We more notice notices has to be obviously with when it comes to land, use, you often have heightened notice requirements. You have to look at what those are. The next part is in location. Location has to be place accessible and open to the public. As I was explaining to students this you know, Starbucks is a cool place that people from the public, though, but that's not where we have public meetings because Starbucks until somebody please don't come in here. We do not have our meetings say, hey, we're going to talk about this. If you're in favor, please come to this place. If you're against stay home, that's not how it works. Anybody gets to come in the last one is There's no requirement that your minutes be verbatim minutes your your secretary of staff or not. Court reporters, God bless any of them were trying to keep up with every word I said so far. And Dominican speak fast. But the minutes are supposed to capture the essential business of what you do right when you convened who was there, what was discussed at some point down the road, some poor schmuck who sitting in city attorney says he's going to be asked why did they do this like why can we only have a pool waterfall? That's only 4 feet. Real question been asked. Well, I don't know. Let me go back to the minutes and the resolution and the ordinance and see what was said in the fall. It says is resolution 2025 dash 2 past. Well, now we have no insight. So you're minutes should capture some of the essential discourse in business, even if it doesn't capture chapter and verse. That said, you're minutes, just document what happened? That doesn't mean what happened is necessarily real or true all the time, right? It can can say that, you know, Vice chair LeMay said that there was no dock at the property and we later find theirs in the record, plenty of places where it shows there's a dock. It would still be accurate to say that. You said that if that makes sometimes we've had that issue like, well, he said something wrong. I want to I want to free differently. We're talking about the record, especially quasi judicial hearings. And there's the difference between what what's true and what's in the record of what happened in the final part is public participation. I'm CE as long as we've had municipalities, we've had a version of the Sunshine Law. We've had some version of public maybe not in the innovation. We know now, but you can find cases from the 1930's on public records and public meetings. Interestingly, there was no statutory or constitutional right for public comment in public meetings until about 11 years ago. Now, many cities are needed, but there was a case where city finally said, hey, we're having a hearing in nothing says that anybody gets to talk. It just says that we're open for their observation and the court looked at and said, you know I don't like the result here. You know, the public showed up with their torches. Shorten, you know, brighten their pitch for sharp and they wanted to do something. And then you just said, please have a seat. And so the legislature very quickly around into the Florida statutes. So the public gets an opportunity to comment in reasonable proximity before any official act is taken. What that can look like in terms of your procedure, if you're doing legislative matters, that's they vote. They get to speak before you pass fail. An ordinance. If you're in the middle of an ordinance and you're considering an amendment to that that might pass or fail on its own. They should probably get a chance to speak before that amendment because let's say you are passing an ordinance to change the skate park hours or something. And you the original ordinance is we're going to escape our COVID. 95. I don't care at 95 Havel than working. Never have to hear. Then some of the proposed an amendment. We're gonna keep it up until 10:30PM. Well, now I care now I want to comment, right? So that's one of those things where, well, you're going to take an official act might substantively change my right. I should have an opportunity to comment. Now that said the right to be heard is as one of our vice president's famously said, not the same as the right to be taken seriously. Each of you give whatever credence you wish to the public comment. But as stewards of the public trust your job is to consider those concerns as you make your decisions unless there's legal direction. Otherwise. And I'm about to talk about the otherwise. But before I do that any questions, comments, concerns are cast for marks just forge right? Great. Can you talk in the Mike? How is? Determined? A potential meeting of board or commission members who? Our operating outside of that. You'll notice the quote, the pull quote, You had said. >> It could reasonably be construed to be relevant to something that's under consideration or would be it could come before the that the body later. a big if, isn't it >> the the if is only as big as the powers and duties of the board. I would say so if you have a library board whose only job is to review, which which books will be donated to the society and offloaded. That's a very narrow path with the borders with as many powers as you're planning board has. Yes, that's a very big if. And so the question is not a metaphysical one on like is there. >> Is in application pending right now because you could have an application before you. This is something I often have to counsel my body's own eye. I worked in a community where we we had a lot of regulations about short-term rentals and you have like 7 hearings to get an ordinance over the finish line. You get over like, oh, great. Now it's done so we can talk about it, right? Absolutely not. Somebody may sue us about this. This may be appeal be might have an election in 2 months. 3 new people come in and that were the towing or removing or amending this ordinance. So it could conceivably come before us. It's not only based on like, well, I've read the paper and nobody's talking about the chops anymore. So I can talk about vape shops all day long. Know that's if that's something within the scope of what you addressed then that's something you shouldn't be talking about. Does that make sense? >> Yeah, I'm just I'm just trying to understand. So the meeting to discuss the Eagles and the Packers. Yeah. Who anyone seeing the 2 of those gentlemen having a beer and and talking about that could say. They were discussing something that can some conceivably come forward. So is it about the appearance or is it about the You've touched that I there's the >> I am here as Randy Moore. Attorney at law, which is to say I practice in the court of law of the question you're touching on is one of the court of public opinion. And those are 2 very, very different venues with very different rules. I'm not convinced the court of public opinion has rules beyond. You're not allowed to change your mind based on new information but the the court of public opinion is often what you folks wrestle with as lawyers and your legal advisors. We will have often come to you with the spark level approach of can you do a or B? Yes, legally, you can. >> Should you do it as a matter of prudence is really a different question. And in a broader sense for how you serve in this or any other role when you're working with the with the lawyer, our job is risk management. We tell you here be dragons right? I know for certain one of the 5 use the Dragon Slayer. You're just convince your Don Quixote will take all comers. You've got this and there's another one of you sitting at this table right now and not know what I don't know, which one who will also be like dragon's. I did not sign up for dragons. I want off of this map, right? That's your risk. Tolerance. That's a different question. And so when it comes to the and I've had that issue many times, we're said, hey, I saw those 2 members after the meeting at Applebee's. It's always Applebee's at that. And, you know, they were in the corner, the Applebee's and they were talking is like okay have a map of the Did they say? And this is where we're going to put the water treatment plant. Where did you just see them in the corner of a room? As an example of that, I had a community where there was a very contentious hearing about a city official potentially being hired or fired. that meeting ended and everybody slowly, no doubt of the room. And then a contractor was in the room who might fill that role. And then 2 of the remaining official stay back. And they were all talking the doors for transparency. Everybody could see them into the lights were low. The doors have been locked. Everybody moved out. So I got a call the next day. You're too commissioner. Stay with the contractor. They had a pretty it seems like one of them is pretty emotional as a pretty, you know, intense conversation raking the sunshine. So I don't have evidence of a sunshine law violation of the the framework for one. Let me look into it. And when I asked you know, we met with them, but we were all, you know, the first guy is divorced. The second guys on his 3rd marriage and the 3rd one was about to get divorced and they were talking about the woes of divorce. And I said to them, you guys should have taken that to an Applebee's. But, you know, like you didn't have that having that meeting. There is yeah, the court people are going to look with a lot of scrutiny. And so yes, be mindful of how people perceive what you're doing. But that's not the same as the if what could come before your board discussion. Any other questions on sunshine law. Anything like that? Alright, forging ahead. We're going to focus on really the heaviest part of what you folks lift. This is the the main course in this in this in this is the legislative versus quasi judicial hearings. Your legislative hearings are where you are making policy or as an advisory body recommending policy to the city commission. You guys get to just make it up. As long as there's some kind of rational basis for what you're doing. You can say yeah, we just think the skate park should be open till 09:00PM. And that's what we think. And, you know, go for it. You're not really going to face challenging. You have a lot of leeway. You might have people who are upset about the decision. That's not the same as you've done something unlawful. So you get a lot more. You get much wider berth when you're when you're legislating. In a quasi judicial hearing, you are no longer making the law. You are applying stab most law to facts and evidence presented to you in a hearing process in that quasi judicial means you are kind of like a judge. That's the main difference. So you are you have to put your own personal views. Aside at that point, even more than the public trust a man's now you're getting less like a public official more like officer of the court and saying I have to be impartial and recognize that people may have writes, I even disagree with in this process. But we as a city have already made the law. We recommended a comp plan amendment. We have a comprehensive plan in place of our comprehensive plan. Doesn't address acts. We have allowed that. And so that's one of those calls to bodies like this that I make city commissions is try to be proactive if there's value in doing so for your community, right? If you if you're seeing a trend, you know, as 7 or 8 years ago, the trend was on the medical dispensaries, merit medical marijuana dispensary is opening up before the legislature passed a law on that. It was kind of the Wild West and so cities were saying if you don't do anything about this at some point, your going to close, so do it now and make your rules. And so, but once you've major rules, if you just say, hey, anything that calls itself medicine is treated like a pharmacy. Well, somebody comes and tells you I'm making a pharmacy, then that's it. You don't have to like what they're selling, right? As long as there's no law prohibiting it. Incidentally, one thing to consider for your body. I heard one of you asking staff like, really there's no applications today. One thing we've seen with some planning boards in the last. 3 years, really is a reduction in how much legislative stuff is brought before you land development, regulation changes. That's not an accident. by design and terms of state law. Because under state law. Post Ian and even more so post. Alina Milton, you may have coverage about various legislative bills in the past says you can't pass any land-use regulations that are more burdensome or restrictive. And hopefully those words are not defined so if it's just more than what it used to be, that's likely more burdensome restrictive would have to see. But as a result of that, you've seen a lot of cities have less proposals coming before their land development bodies for consideration. And there may be things that are hurricane related. I had one community say, hey, we would like to change. We found after Ian back in 22. we notice that the rubber mulch was clogging up. Our storm drains during storms. We want to eliminate rubber mulch as a as a permissible substrate in certain communities that, well, that's a burdensome land. Rick, I don't think that's what the legislature was worried about. It's not stopping anybody's ability to rebuild a home, but it is captured in scope. And so I would you know, I advise them at least at that time against it. So those are the sort of things that you may have seen. A change in how much volume you have or what the volume looks like less regulations, more applications right? So as we talk about your applications, most of your applications are quasi judicial hearings. If you're ever in doubt about whether hearings quasi judicial first just ask, we'll tell you. I'm usually it's announced or on the Hey, these are the quasi judicial hearings of the day but also when you really should be looking for is ascertain double criteria. Is there a list of things that somebody has to do to get the thing they're asking for? And so when you're looking for Kurt who says, hey, I'm trying to build a bowling alley. Well, the bill, the bowling you have to have noise buffering parking drainage ABC D E somebody says I would like site plan approved for for my bowling alley. You should be looking wears ABC, D E your feelings about whether they're doing me on bowling in this place. I don't like this newfangled colorful bowling. I want the old school. I want cigarettes. When asked race, you know, that's not you. What you culturally may want is not at issue. It's just whatever we've already put in our code right ignoring criteria or evidence or even creating criteria can make a policy decision that leads to litigation for your community. And we've seen this were board say, you know, I I just feel like. I see the criterion, Mister Attorney. I hear what you're saying. It's ABC D E, but I really can't believe that we're not asking what the neighbors think. I think we should be factoring in the neighbors position on this and there's nothing in the code that does that safe. So I'm I'm voting this down because the neighbors are against it. So you've just said, I see what the laws and ignoring the law and I'm doing what I feel like. And that can create exposure and whether it's an appeal or a lawsuit challenging the city's, you and impeding some buddies, property rights. And so we have to be mindful of that again, because you're kind of acting like a judge. When you're voting on ordinances and resolutions, especially at the commission level, you have to vote unless you have a legal conflict. A legal conflict is typically defined something that makes your money go up or money go down. And that's the only thing that stops you from voting on stuff. At your level when you're in a quasi judicial setting. And same true for commission when they're in a quasi judicial setting. You have one more bases to object to abstain and that's to keep a fair hearing. If you say, listen, I've gone on record that I had. I grew up on the East Coast. I saw the Surfside condo tragedy happened as long as I live. There will never be another building over 6 feet in the city that requires my approval. I just don't I can't get behind it. No, there's nothing you can persuading. Somebody comes and says, hey, we need to go a little higher. We've got, you know, we've got this title concerned. We want to elevate above that with FEMA plus this. And so we need to go for higher to be able to have this other infrastructure. Well, you've made it clear that if they're going to need permission from you, there's no way no amount of evidence that would ever persuade you. Well, then you may also abstain to ensure fair proceeding where they may seek your extension to ensure a fair and so be just be mindful of that as it relates to quasi judicial proceedings. Any questions on that stuff? Yes, sir. I just want to be clear. It sounded like you said public input relevant or decision in a quasi judicial hearing. And I know that's not what you meant >> it. So if the public comes in and provides information on that for the mic. Thank you. If the public, if the public provides information in the form of facts and information that bears on the specific factors that we've been asked to. >> To use to decide the issue. Of course that's relevant. True avoiding the deposition style inquiry. I would say yes, it depends what flavors. And that'll take me to the next slide. So the importance of clear findings of fact and conclusions of law can find the criteria. So one of the things that is very helpful for staff and especially if your decisions are going to carry be legally defensible is not just saying you have this whole hearing where you have public input everything and none of you says anything move to approve. Take Vo. Yes, yes, yes. Unanimous vote. I don't know why you approved. Or if you deny why you denied it. Stating in the record, I find that the criteria are satisfied or, you know, I I can't support this because one of the criteria says a variance and that's not the minimum you this sport doesn't variances, but this is not the minimum variance necessary or, you know, for site plan approval. I see no evidence of buffering addressed here. There's nothing in the record that says they've sufficiently buffer buffer does element number 7. That's really, really helpful to your city or to your board. And there may be times where the city on the South side doesn't agree with your conclusion. That's fine. As long as you have evidence to sustain it. Right. And so speak to that in a moment. When a decision is challenged, it get what what an appellate court reviews is less and less each tier. So the first time that your decisions challenge, it will go to the circuit court, right? The Circuit Court for Sarasota County and the court will look at 3 things, the competent, substantial evidence procedural due process and essential requirements of law. I know some of you are attorneys. So I get to the case sites. You can go look at yourself if you wish to. But the those are the 3 criteria. And I'm going to talk to each of those on the next few slides. But that's all they're looking at. So let's say, for example, when you're sitting and hearing, you say, whoa, you know, staff says, oh, we have a perfect map that demonstrates this everything that you guys are asking about. We've got a map that covers it but it's not here with us now. Know you can see it. We don't we don't have it. On appeal. The city cannot put that map and the record. The court can only look at what you folks were looking at and it will not relay the evidence. The court gives you a lot of difference if they say they had this evidence and they reached this conclusion. Recent minds can disagree. I'm not going to say they should have decided to different way. I'm just gonna say is there a defensible way to get where they got? Does that make sense a lot of was a lot of words, you know, I asked you're pretty simple question. You said to be done like the form of my question. But you didn't really answer my question, correct? Because I'm not there in the presentation yet, but I'm getting there right So thank you for that. I'm I'm I'm laying out the framework. So there's the 3 issues on appeal. Evidence due process, essential requirements of law. So now I will get your question because that's the side of it. Competent, substantial evidence appellate review does not include re weighing the evidence for this reason. The board make findings of fact, inclusion of law. What is competent, substantial evidence such evidence will establish a substantial basis of fact from which the fact is you can be reasonably inferred or evidence as a regional mind would accept is adequate to support a conclusion. So to answer your question, sir, on the public coming up, I was not saying that the public should be completely discounted, but what you have to consider is whether they are actually providing competent, substantial evidence that a court will consider competent substantial evidence. I'm reminded of the Internet meme for for restaurants is come have the worst meatball guys. Meatball sub. Some guy on Yelp ever ate, right? That's an opinion. So every time we get into a land use hearing you're almost guaranteed to have somebody come up and say this is going to help or destroy property values. This is either going to help or destroy the aesthetics of our community. And this is going to help or destroy traffic. And what you're doing is an irreversible act as to one of those 3 things that is not competent, substantial evidence. That's just an opinion. If you had an appraisal that would give the property values. If you have a traffic study that speaks to traffic. If you have those kinds of things that support that are evidentiary. But somebody saying I've lived here 5 years and I can tell you if you do, this will never get drainage again based on what evidence, right? That's just some buddies assertion. And so I would say as a by way, of example, one of my one of my that dozens, if you will, in public hearings and quasi judicial hearings. I was in a community where they were considering the approval of the site plan for what would be the largest indoor gun range in the Tri County area. At the time. And so we had a site plan approval hearing and in that community site plan approval was noise. Buffering sound buffering. Traffic drainage parking, all those things. So staff comes up says we've reviewed the application. They that met all the buffers. They've done there within the setbacks. They've met all of the considerations of site plan approval. We recommend approval of this application. Applicants represent lawyer comes up and says, hey, guys, you heard it. Staff says we should approve this. We've done everything. And I would tell you, we've done everything and then some. Here's some of the ways we partnered with you on this and, you know, we asked for your approval and then it's open to public comment. And for this meeting started at 7. So for roughly 3 hours, we talked about the Second Amendment. Columbine. 9.11, I think at some point we talked about begin to park. It went in all kinds of directions. And at the end of that, my colleague who was the board attorney said, ladies and gentlemen, now that we've close public comment, it's my duty to remind you this is a quasi judicial hearing on site plan approval. Nothing you have heard in the last 3 hours has addressed any of the criteria which are ABC D E F G. And it is my instruction. You as you're trying to ignore. Everything that you have received this evening because none of it addresses site plan approval. And it's only a call to make a policy decision. Now, the cool thing about that moment was a bitterly divided room unified one man because what they heard was you just wasted my time in in to the extent that they thought they were making a policy decision, I suppose that might be true. But that's an example of. Yes, the public certainly has an opportunity to be heard. They should absolutely without hesitation. And if the public is offering competent substantial evidence you can and should take that into account. But if you're simply receiving an opinion that says like this is bad, don't do it or I don't think this is going to look right or this doesn't have that Sarasota feel. I don't know what that means as it relates to your criteria and as if we're eyeing the attorney I would say I don't I'm not seeing competent substantial evidence of the criteria based on a comment like, you know, I did. This isn't a good fit for us, OK? So again, that was a lot of words. But my question was about opinions. My question was about facts and information. So once again, if a member of the public provides facts and information that bears on the factors were supposed to apply. It's it can be competent, substantial evidence that we should and have the opportunity to use and weight room. Yes, I'm not sure why feeling slightly combative. I I felt like I answer the question. I'm sorry that it didn't come across that way. But yes, if you are receiving facts, anything that meets the standard for competence of potential evidence regardless of who the speaker is. Yes. So if the public is providing you competent, substantial evidence, yes, you can and should consider. I ask you what I thought was a really simple, easy softball question. And you unite. So I didn't understand your response. That's that's why I'm taking this tone, which is a little bit of frustration because you didn't answer what I thought was. pretty simple, straightforward, easy question. Ask a question. But because the mind is that a lot of things that come to mind, you asked that question, but you get give people here. A lot of experts that offer. Facts that I can really verify on the spot is that fact and I don't know whether or not to take that into account at that point. Sometimes they're able to sway one that comes to mind. clearly as a woman to come up and there's a a condo building that had the incorrect or misleading acreage calculation. And there you know, the amount of affordable housing we had to account for on that. That number that calculation dawn was verified because I had to shoot for me. Sometimes come to pick them up and say things and like, oh, that's a really good County verified at the moment. And that's, guess, to a way to do. I ignore it has an not part of the ultimately you folks are the judges. You decide what credence to give evidence that's presented. And you can say I was presented this evidence. I don't find a reliable. And so you know that that's a a a decision to you. And only you folks have the ability to make in that moment. And when I say court will re way, they won't come back and say unless you just straight up, said to push, too, was 222 right. Like unless you do something like that, no court is going to way that. Could I ask a sort of a follow on to the follow on? >> Which is? As to timing. So if during the applicants presentation quasi judicial hearing or >> on rebuttal. What could be considered competent? Substantial evidence is introduced. Can you consider that? other words? It's not just 2, but when. Because we've had examples, so the cards, for example, where the issue was, whether or not procedures been followed. And it wasn't in the pre meeting materials. It was presented at the hearing at the Quasi Judicial hearing. So this timing matter. I think timing matters but only as much as if it's during the hearing process than it's timely. >> Right. If you've already major voting hearing is closed. But if your if you're at the hearing, whether it's in the pre applicant submissions, the agenda packet or presented or Lee during the hearing. All of those are part of the record that would go into a quasi judicial hearing. What along this line? We people who are present or sucker appear either for or against something they will come up here like, let's say a developer. They come up here with their team. They have their engineering. >> Team, they have whatever. And they present them as experts and we accept them as such. Then sometimes we'll have some be a member of the public will come up and present themselves as a as an expert. Well, I'm a retired environmental professor. And, you know, this issue will with heavily on a climate issues and whatnot. Those are kind of tough because I don't know really who they are. If they say, you know, and it's all like you said, we're judges. You know, we kind of come in, you know, we read the backup material we feel is all we know the issue and also and somebody comes in with something like this or we'll get a few of them. Sometimes we get 50, 60 people coming up here and they all have some very that we are used to be on the planning board back in Bakersville, California. And what we did was. And they're presenting things that seem to be substantive evidence. But it's still. We don't know. You know? >> Yeah, I would say again, there's there's 2 ways that I would address that first. you folks get to weigh the credibility. you may wish to consider what your rules procedure say about being qualified as an expert and having someone status as such. You know, do you require cities to be qualified as an expert, you must submit a copy of your CV. You must do ABC D and will consider you an expert and up until then you're just some guy who says they used to do that or GAO. He says they used to do this thing and that's why you have this evidence or information. But that would be another way that you may wish to consider addressing That's one of the nicer jump apologizes. The next the want that to the constantly that fresh and me traffic and water were in Florida Keys. >> So every time there's traffic analysis, somebody is an expert who spends every day the lies calculating these things comes up says, hey, this isn't going to affect traffic. It's, you know, a minute this impact. As you know, over and over again, where in even trouble as board. I live on this block and I can tell you he's wrong like that's. That's opinion from from where from where I see from where I sit and how I've seen that analyzed by courts. Yes, some person saying I live on this block. >> And and I can tell you, I can't get and I will never be able to get out. Once you build this is that that's an opinion. It's not substantiated air or stormwater engineer says something that is a fact like meaning that the city staff and already agreed with that on the record and that's been pulled in as evidence. That is what we need to look at. >> Nets not. That's not what I'm saying. I am saying you give that the week. You wish to give it. But whether it is whether it rises to the same kind of evidence, they are not the same. Evan and ultimately you folks give that evidence the way you wish to. As I understand it, the city isn't now vetting everybody who comes up and sits in that chair on behalf of a developer or an entity. >> Okay. So if if a member of the public comes up and said I've been environmental engineer, I work with organization and I say this that the other thing based on fact, not opinion that he or she offers they're actually similarly situated. And if you have the bias that you're going to believe everything, an applicant expert says and public experts says my pin you're not doing justice, but that's for each of us to decide. Separately, right my problem is I just don't want a situation where somebody is coming in and putting in my opinion, their finger on the scale and saying don't listen to the public, value the public believe everything you hear from those paid folks, but don't believe what you hear from the other folks. That's not right. Mister Chair do believe Mister Christie's on zoom. And I think he had question is, well, OK, terrific myself. I apologize again for your time. Yes, sir. Thank you. Mister Christie. >> Thanks. not not ready to say that at this point. But as I understand the point of this, the public has a right of input. The public can offer their opinions, but just because they have an opinion of the matter, doesn't make it automatically competent. Substantial evidence is that I think that's assisting summer. Yes, sir. But but if they offer as they raise, the concern does not mean we have to give it anyway. Let alone can actually consider it and evaluating and a quasi-judicial proceeding. >> But if the public coffers, facts related to the criteria that we're looking at actual human experience in the area or expertise or a variety of other things that we've seen every single day. We absolutely can take those things into consideration and should, in my opinion. And my my recommendation to you in terms of process, I'm not here to to tell you. What you need to do specifically. My advice to you would be regardless of how you approach that calculus. Just make clear what you're relying on the record when you make decisions. So you could say yes, I you know, if if the chair disagreed with members, Salem, only good news because we've been if the chair agree agreement. Mister Salem disagree. Mister Salem, Mister Salem was weighing, said he bay believe this based on staff's report. The chair Toledo says 2 members of the public to come forward and identify themselves as scientists and this. And that's the evidence they're relying on now. We have competent, substantial evidence what I wanted to get with that was one of the opinion is challenged or an order decision of this body of the commission's challenge, a quasi judicial for the attorneys who ultimately defended at the next tier. All I want is some evidence I love when there's competing evidence because competent substantial evidence is some evidence. It's not beyond a reasonable doubt. So if if to, if you if you say we reach different different decisions because we're relying on different evidence or I am here we use when you considered. I disagree that it's credible. I'm going with this great, whatever the decision is, we at least can say how the body got there. And that's really more work. Where I'm coming from is just making clear what your what the foundation for your decision is, right. So the evidence is what it is in the hearing. It doesn't come into existence because we recognize it as such. The evidence is what it is when we make a determination we should tell why we made the determination, including if we relied upon certain facts and evidence abstention have us, we should try to explain that. And that would help you if you were defending it. offset. Yeah. Thank That's the point. And so that's the first element. The next element in appeal in the 20 3 elements. The next is due process, which is really, really procedural due process is notice and an opportunity to be heard. The notice should be fair and the opportunity to be heard should be meaningful, right? It can be and that that should be a close quote on that a meaningful time in a meaningful manner. But meaningful meaning we don't say if you are in favor of this, please come forward and speak into the microphone. If you are against Lee's going to be in the hallway, whisper it in your hands and we have Preece available for confession, right? It's it's a mean meaningfully heard on both sides on the specific parameters of the notice and opportunity heard are not evaluated by fixed that that is to say there's not one way to do it. It kind of depends on what you're Again, the difference between saying we're going make this building taller versus we're going to rezone several months square miles of the city are very different things. And so procedural due process simply constrains government decisions. give consideration people's liberty interest in the process. Notice and an opportunity to be heard does not mean actually being heard. What I mean by that is sometimes we say, hey, this hearing is going to happen on Tuesday, December 15th. I don't know if that's a real day Tuesday, December 15th 2025 be I'm supposed to be on a cruise. I'm going I'm going to Italy that day. I can't be there for that. Well, that's the day. So maybe get somebody to represent. You write a letter, submit a report to whatever, but that's the day we're having here. You have an opportunity to be heard. The fact that you're out of the country are traveling is not the same thing. Why couldn't be there isn't always the can I just follow up on that? Because it's the second time you've made a point. In that neighborhood. >> Your opportunity to be heard. The meeting properly noticed. Right? Yes, sir. Ordinarily in a competent, substantial. You can introduce competent substantial evidence ex post facto that right. If you're not there, you choose not to be represented. You had your chance. Just to make sure because as the we're all using the Expos back to me after the Yeah, if the meeting happens and we've made this board has made its decision. >> And somebody says, oh, I I didn't know I I didn't check the city website and I was traveling. But here's the report that changes everything. Well, the hearing happened. We should have had that before the here. Yes, there's that that that there's not new evidence now, whether you have some kind of future. Listen, a lot of decisions get revisited by if there's some procedural mechanism by which that is lawfully revisited. Well, then now you have a new entry point. You didn't have but failing that? Yes, it is. The hearing is where where it happens. >> Mister Newhouse commune introducing like in back up ahead of the meeting as competent, substantial evidence. >> Now I'm thinking about a specific case and what I do want to name it. But I think everybody knows what I'm talking about. Why do where you where, you know right now, you know, >> You know, I don't know. Haha, I don't know their their we we've allowed alternate ways to get evidence and eating ahead of time ahead of time to find that's different, right? Do you have the materials letters to that? You know, a letter I later 15 in favor, you know, whatever the math is on in foes, not after that, but not after the fact. Once the hearings close, that is when I say. >> The court appeal is not going to take that is new evidence that that because what the court is saying is you already had a judge not going say that just doesn't know what they're doing. You're presumed to be competent. You've been a port. You've been appointed. You've been, you know, vetted on some level by your city commission. So I'm not going to say, well, had I been there, I could have decided to better. And now here's some new stuff. They didn't have. So I'm going supplement their decision with my own right now. You have to have court is trusting that if you had this in front of you, I'm sure you would have made a different decision, but you didn't. So I'm not considering it either. So there's no new evidence on appeal. So that's the procedure process in the last one is essential requirements of law. And this is really just that you're reading from the right shoe to music. Did you apply the right law if somebody was here on a variance where they're trying to get a variance for height because their property and relates right. It's the deeper in some higher in others. They say, oh, I want a variance for the high and again, I know this board variances, but I want a My my my fence can be higher. You of the 7 feet. But if I did that, it would work and you start applying the code for shrubs. Well, no, you deviated from the central requirements of law. That wasn't the law. You should have been applied. It's often easy tear to so to to satisfy essential requirements of law. Another way that you typically see it violated is it goes hand in hand with procedural due process. They say you deviate from the central requirements along when you told nobody gave no notice. No opportunity to be heard. That's a deviation from an essential requirement of law due process. And so both things, you know, 2 things can be true. You have of due process and essential requirements of law, a defect in that case. Any questions on that? So that covers that appellate review go back to the slide just to show you. I said that near the appellate review narrows. So from you from here, if in a decision is appealed directly, if the if you have the final quasi judicial or the commission as the final quasi judicial decision, it goes to the circuit court from there. It goes up another tier when it goes up and that second time they don't even consider competent substantial evidence. They only look at procedural due process and central parts of law. So the review gets narrower as it goes up with more deference to the original decision. Each time it's a front. So that brings us to the opportunity to be heard in in public meetings. Generally, it's essential that people be free to seek redress of their grievances and express their opinions to all government officials. This comes directly from Chapter one 12. That is the ethics code in I mentioned earlier, the right to be heard coming from Florida statute like about 10 years ago. This is that language. The opportunity to be heard occurs in a meeting that is during the decision making process with INRIX reasonable proximity in time before the meeting, which the board's official action takes place. And there are some limited exceptions. There. So some takeaways on the opportunity to be heard. The public has the right to comments. Me 2 or by members of the body private conversations inside bar should be avoided. There's nothing more frustrating. Won't I won't say nothing but one of the more frustrating things being a city attorney, especially in a quasi judicial hearing is when you start seeing board members, Christie is talking and Claremont and DeLay or having a sidebar discussion over here. Even if you're off microphone now with the question is what are they talking about? And it's not conform their decision now I'm sitting ordinarily on the same side of the day, says you and I know you're turning each other saying his heart and he should be asked to remove or jackets are just say that into the microphone. It avoids the court of public opinion thinking you're saying something else and backed dealing in an open meeting, right. so avoid those receipt of messages, private notes or emails during meetings should be avoided time limits on public comment are permissible as long as they do not unreasonably restrict access when it comes to constitutional rights, we