City prevails in preliminary Sunshine case hearing
BRADENTON – Twelfth Judicial Circuit Court Judge Edward Nicholas has ruled in favor of the city of Bradenton Beach regarding the reasonable foreseeability of a parking garage being something that would come before the city’s Planning and Zoning Board.
Nicholas’s ruling came in response to a partial summary judgment requested by the city and presented on Thursday, June 20, at the Manatee County Judicial Center in Bradenton.
Reasonable foreseeability is a central argument in the civil lawsuit filed by the city and co-plaintiff Jack Clarke in 2017. The trial is scheduled to begin on Monday, July 15.
After hearing from both sides during last week’s hearing, Nicholas said denying the city’s request for partial summary judgment would be the safe and easy thing to do.
“However, there is no universe wherein the issue of whether a parking garage should be permitted or approved in a small community would not come before a planning and zoning board. If that’s the issue before the court today, that is not a close call,” Nicholas said.
The lawsuit alleges former Planning and Zoning Board members Reed Mapes, John Metz, Patty Shay and Bill Vincent violated the Florida Sunshine Law by discussing parking garage prohibitions and other potential board business at Concerned Neighbors of Bradenton Beach (CNOBB) meetings in 2017. Former Scenic WAVES Committee members Tjet Martin and Rose Vincent are also named as defendants.
Judgment sought
Attorney Robert Watrous represented the city at last week’s hearing, accompanied by City Attorney Ricinda Perry and paralegal Michael Barfield.
“We have provided the court with voluminous information that parking garages were discussed at CNOBB meetings and they sent correspondence that this was on their written agendas,” Watrous told the judge.
“This is a classic example of individuals who were appointed to a city board, chose to form an organization and chose to discuss the same topics in their CNOBB meetings as they had been discussing at their P&Z meetings,” Watrous said.
“The Florida Government in the Sunshine Law was enacted to protect the public from closed-door politics,” Watrous said, noting the law is “construed to frustrate all evasive devices.”
“Not only was it reasonably foreseeable, but if one looks just at the April 12th and 19th (2017) P&Z meetings an issue of parking and parking garages did occur and was subsequently discussed weeks later in CNOBB meetings,” Watrous said.
“There’s been an argument made that there was a cure of this situation by the resignation of the P&Z members. That is only a partial cure. Case law is very clear that the cure can’t un-ring the bell and the plaintiff is still entitled to a determination or a declaration of the fact that there was a wrongful act,” Watrous concluded.
Shults’s response
Metz’s attorney, Thomas Shults, questioned whether the request for summary judgment was facially insufficient. He noted the request did not pertain specifically to the July 25 CNOBB meeting that included discussion on a potential petition-initiated charter amendment that would have banned parking garages.
Shults argued the defendants, as private citizens, had the constitutional right to assemble and discuss potential amendments to the city charter.
Shults acknowledged that in 2018 the current planning board members reviewed comprehensive plan amendments that now prohibit parking garages citywide.
At one point, Bill Vincent stood up and told Nicholas it was not reasonably foreseeable that a parking garage would come before the planning board because it would have been inconsistent with the city’s comprehensive plan.
When those 2017 CNOBB meeting discussions took place, the comp plan still allowed parking garages in several zoning districts.
“I can say with 100 percent certainty – not reasonably foreseeability, but absolute certainty – that this is a very issue that should and would come before a planning and zoning board. I feel like I’m missing something, it’s so obvious to me,” Nicholas said.
“Whether or not there is a Sunshine violation here, that remains to be seen,” he added.
Nicholas said he didn’t know how his ruling would impact the trial. He said he would not limit any arguments made by the defendants but said there is no need to further litigate reasonable foreseeability.
Shults questioned Nicholas’s ruling and suggested he refrain from issuing a written order because there were more hearings scheduled. In response, Nicholas told Shults the court was in recess.
Afterward, Watrous said he agreed with the judge’s ruling and he appreciated it.
Perry said the city must now prove at the trial that the CNOBB discussions and email exchanges occurred and that those actions violated the Sunshine Law. CNOBB meetings were recorded and posted at the CNOBB website. The recording of the July 25 parking garage discussion and several parking-related emails and documents will be presented as evidence.
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