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Two parking garage questions on Bradenton Beach ballot

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News, Featured.

BRADENTON BEACH – With vote-by-mail ballots already being cast, Bradenton Beach voters have begun deciding whether the city charter will prohibit or allow parking garages.

The Bradenton Beach ballot for the general election that concludes Tuesday, Nov. 3 includes two separate charter amendment questions pertaining to parking garages. City voters are being asked to vote yes or no on each proposed parking garage-related amendment to the city charter.

In August 2018, the city commission amended the city’s comprehensive plan and land development code in a manner that currently prohibits the construction of stand-alone or multi-level parking garages anywhere in the city. Those existing prohibitions could be lifted by a future city commission.

Amending the city’s comprehensive plan to allow for a parking garage would require the four-fifths supermajority support of a five-member city commission. Amending the land development code would require the simple-majority support of at least three commissioners. Both documents would have to be amended to allow for the construction of a parking garage. Currently, there are no plans or proposals to build a parking garage in Bradenton Beach.

Ballot Question 1

After a two-year legal battle, Bradenton Beach Ballot Question 1 was placed on the ballot at the request of the Keep Our Residential Neighborhoods (KORN) political action committee formed in 2018 by Reed Mapes and John Metz. Mapes has since moved and is no longer a Bradenton Beach resident.

The ballot language for Bradenton Beach Ballot Question 1 reads as follows:

“Amendment 1 to city of Bradenton Beach charter.

“Prohibition of multi-level parking garages only.

“Should the charter of Bradenton Beach be amended to prohibit the building of any multi-level parking garages within the city of Bradenton Beach? All other parking garages, facilities and structures are allowed as permitted by local law.”

According to City Attorney Ricinda Perry, the adoption of Ballot Question 1 would add language to the city charter that would prohibit the future construction of a multi-level parking garage anywhere within the city limits. Perry has previously stated the adoption of this proposed charter amendment would not prohibit the construction of single-level parking garages or parking facilities.

Similar to the existing height restriction placed in the charter many years ago, a parking garage prohibition added to the city charter could only be reversed by a future charter amendment approved by Bradenton Beach voters. If this amendment is adopted, the city commission would not have the authority to allow for the construction of a multi-level parking garage. That authority would lie solely with a future vote of Bradenton Beach voters.

Ballot Question 2

Suggested by Perry in response to KORN’s proposed amendment, and supported by the city commission earlier this year, Bradenton Beach Ballot Question 2 reads as follows:

“Amendment 1 to city of Bradenton Beach Charter.

“Prohibition of multi-level parking garages and mandated citywide voter referendum to increase its density.

“Should the city amend its charter to: (1) Prohibit the approval, development and building of any stand-alone parking garage structures in all residential zoning districts; (2) Prohibit any multi-level parking garage, structure, or facility exceeding a total density of one multi-level parking garage within the entire municipal limits; and (3) Establish a mandatory citywide voter referendum to increase the multi-level parking garage density?

Voter approval of this amendment would allow for the potential construction of a single multi-level parking garage in Bradenton Beach should any government and private entity choose to pursue such an endeavor.

According to Perry, if city voters approve both proposed charter amendments, neither amendment would be adopted and neither would be placed in the city charter because they would be in conflict with one another.

If city voters reject both proposed amendments, parking garages will remain prohibited according to the comp plan and land development code.

City prevails in KORN lawsuit

City prevails in KORN lawsuit

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – The city of Bradenton Beach does not have to put four charter amendments proposed by the Keep Our Residential Neighborhoods (KORN) political action committee on an upcoming city ballot.

The ruling by 12th Judicial Circuit Court Judge Edward Nicholas was issued at the Thursday, March 5 hearing that was a continuation of a hearing that began in December.

KORN initiatives

KORN, founded in March 2018 by chairperson Reed Mapes and treasurer John Metz, collected petition signatures from Bradenton Beach voters in hopes of placing four charter amendment initiatives on the November 2018 ballot.

The first proposed charter initiative sought to place in the city charter a citywide prohibition on multi-level parking garages. The second sought the mandatory hiring of a city manager empowered to hire and fire city staff. The third sought to prohibit the construction of anything but fences, driveways and utility services in building setbacks, and to require that all stormwater management systems be contained in the setbacks. The fourth sought to prohibit vacant city commission seats from being filled by commission appointment.

After receiving the petition signatures, City Clerk Terri Sanclemente and City Attorney Ricinda Perry identified several deficiencies, including ballot language that exceeded the state-imposed word limits, ballot language that contained political rhetoric and an attempt to decide land use issues by voter referendum.

In June 2018, the city commission cited these deficiencies and refused to forward the petitions to Supervisor of Elections Mike Bennett’s office to verify whether at least 10% of the city’s registered voters signed each initiative.

The city commission also convened a charter review committee to review the KORN initiatives and recommend alternative charter amendments to propose to city voters.

On July 5, 2018, KORN filed a lawsuit against the city seeking a court order for the city to submit the petition signatures to the elections office and place any initiative that met the 10% threshold on a future ballot. This resulted in a hearing before 12th Judicial Circuit Court Judge Lon Arend in September 2018.

In November 2018, city voters adopted all seven charter amendments proposed by the charter review committee.

In February 2019, Arend issued a final judgment ordering the city to present the KORN petition signatures to the elections office and proceed accordingly.

In August 2019, Bennet’s office determined three of the four initiatives met the 10% threshold.

On Sept. 5, 2019, Bennett sent Sanclemente a letter informing her that none of KORN’s charter initiatives would appear on the November ballot because the ballot language did not comply with Florida Statutes.

Enforcement sought

On Sept. 13, 2019, KORN attorney Robert Hendrickson filed a motion seeking the enforcement of Arend’s final ruling. Arend had rotated to another division so the case was assigned to Nicholas.

Hendrickson’s motion was first argued on Dec. 6, with attorney Chuck Johnson representing the city. The December hearing included opening arguments from both attorneys and testimony from Perry, who was called as a witness.

The hearing continued on March 5 with Johnson still cross-examining Perry. Perry said the charter review committee amendments adopted by city voters essentially addressed the same issues as the KORN initiatives. Perry noted one KORN initiative included the word “cronyism” and she mentioned the excess word counts.

Perry said adoption of KORN’s third amendment could result in the city having to repay millions of dollars in grant money received for city stormwater improvements made on private property through easements granted by the property owners. She also said setback restrictions would prevent the construction of private docks.

City Engineer Lynn Burnett testified the city is contractually obligated to maintain for 20 years any stormwater improvements completed using Southwest Florida Water Management District (Swiftmud) grant money.

Burnett said the adoption of that amendment could result in the city having to repay Swiftmud more than $2.2 million for grant money received and could also jeopardize the $600,000 anticipated for pending stormwater improvements.

During closing arguments, Hendrickson alleged the city willfully violated Judge Arend’s order by replacing the KORN initiatives with the charter review committee amendments. Hendrickson said the city did not have the discretion to do something different than what Judge Arend ordered.

Hendrickson claimed the city violated Judge Arend’s order by including KORN’s original ballot language in the city resolution presented to the Supervisor of Elections for placement on the 2019 ballot. Hendrickson said the city knew the ballot questions would be rejected as written because of their deficiencies.

Johnson contended Arend’s order did not specify the exact ballot language to be presented to city voters. He also reiterated the Swiftmud funding implications.

Judge’s ruling

Before issuing his verbal ruling, Nicholas addressed the change in judges.

“There is an inherent challenge in one judge interpreting and potentially enforcing a colleague’s order. I’ll do my best here to interpret Judge Arend’s order and rule in a way that I think is consistent with his order and the law,” he said.

“It is clear to me that Judge Arend’s final judgment allowed for the likelihood of challenge and allowed for the likelihood of further litigation. I think Judge Arend fully anticipated there might be challenges to initiative number 3. Putting private property owners in charge of maintaining stormwater management systems on their own property would almost certainly have resulted in challenge and litigation,” Nicholas said.

“Do I think it would have been preferable for the city to have asked the court for guidance in their effort to implement his order? Yes, I do. However, I cannot say the city willfully and intentionally failed to comply with Judge Arend’s final judgment,” Nicholas said.

“Judge Arend did not definitively say what language specifically should be submitted to the Supervisor of Elections. Judge Arend recognized the city still bore a duty and a responsibility to make sure the ballot language complied with Section 101.161 in Florida law. This is important. The plaintiffs’ motion for enforcement of final judgment and for sanctions is denied,” Nicholas concluded.

City prevails in preliminary Sunshine hearing

City prevails in preliminary Sunshine hearing

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON – Twelfth Circuit Court Judge Edward Nicholas has ruled in favor of the city of Bradenton Beach, denying three legal actions sought by Sunshine Law lawsuit defendant John Metz.

Nicholas denied Metz’s request to disqualify City Attorney Ricinda Perry as the city’s co-counsel in this case. Nicholas also denied Metz’s request to make public the transcript and audio recording of the city’s private attorney-client shade meeting in September 2017.

In addition, the judge denied Metz’s request to be told what he said and heard during a Concerned Neighbors of Bradenton Beach (CNOBB) meeting discussion about parking garages.

Nicholas also denied Metz’s requests to be awarded attorney fees for the individual legal actions he sought during the Friday, May 3 hearing at the Manatee County Judicial Center in Bradenton.

The judge ruled in favor of the city’s proposed compromise regarding Metz’s request to continue and complete Perry’s pre-trial deposition.

Attorney Jodi Ruberg represented Metz at the hearing. His primary attorney, Thomas Shults, was on vacation. Attorney Robert Watrous represented the city and Perry was assisted by paralegal Michael Barfield.

The civil lawsuit filed in 2017 by the city and co-plaintiff Jack Clarke seeks a judge’s ruling as to whether Metz, Reed Mapes, Tjet Martin, Patty Shay, Bill Vincent and Rose Vincent violated the Florida Sunshine Law when discussing parking garage prohibitions and other city business during CNOBB meetings while serving as members of the city’s Planning and Zoning Board or Scenic WAVES Committee.

The case is scheduled for a non-jury trial before Nicholas beginning July 15.

Perry deposition

A deposition is testimony given under oath in the presence of a court reporter who provides a verbatim written transcript for the judge and others to review.

On March 20, Shults deposed Perry for more than five hours. He spent much of that asking Perry about her education, legal qualifications and another lawsuit filed against the city by the Keep Our Residential Neighbors (KORN) political action committee formed by Mapes and Metz.

When deposing Clarke in January, Shults alleged Clarke, Perry and the city acted in bad faith and filed the lawsuit because of Metz’s contentious history with the city and its officials. When deposing Perry, Shults did not pursue that line of questioning.

“Ms. Perry’s testimony will also be utilized for a bad faith component of this suit,” Ruberg said during Friday’s hearing.

Watrous said he originally objected to the deposition being continued but later offered to limit it to three additional hours.

“The entire morning of deposition was spent on items not relevant to this case. Why didn’t Mr. Shults ask the appropriate questions at the first deposition?” Watrous said.

“Mr. Shults is simply going to have to do the best that he can and focus his questions a bit more pointedly,” Nicholas said when issuing his ruling.

Perry disqualification

When seeking Perry’s disqualification as co-counsel, Ruberg cited case law and said, “Ms. Perry cannot be both an advocate and a witness.”

Watrous said Perry will not act as a trial attorney and will simply assist him during the trial. As a witness for the city, Perry will provide fact-based testimony regarding the type of issues presented to the Planning and Zoning Board – and whether parking and parking garages are something that could foreseeably come before that board.

“Reasonable foreseeability is the crux of the case,” Ruberg said.

When issuing his ruling, Nicholas agreed it’s highly unusual for an attorney also to be called as a witness. He said if this was going to be a jury trial he would be inclined to agree with the defense that jurors might have difficulty determining whether Perry was stating facts or her legal opinion.

Shade meeting request

Ruberg alleged compliance technicalities when arguing that the shade meeting transcript and recording be made public.

Watrous said the opening and closing portions of the shade meeting were conducted in public, the private session was conducted in compliance with state requirements and Metz and his attorneys already have the transcript for the public portions of that meeting.

“This is an attempt by Mr. Metz to invade attorney-client privilege,” Watrous said.

“The request for the transcript is not well-taken and is denied,” Nicholas said when issuing his ruling, noting this was not a close call for him to make.

CNOBB discussion

When contesting Metz’s request to be told exactly what he said and heard during the July 25 CNOBB meeting, Watrous said Metz has a copy of the meeting recording posted at the CNOBB website and the court reporter’s transcript.

“We’re going to play the actual tapes at the trial,” Watrous said.

During that July 25 meeting, Mapes proposed a charter amendment initiative seeking a prohibition on parking garages. Mapes asked CNOBB members if they shared his desire and whether such a prohibition would apply only to a city-owned paid parking garage and still allow a privately-owned parking garage.

In response to Mapes’ suggestion, Metz said, “I say that we do and that we put it more that no parking garage built for public paid parking or something like that. It doesn’t matter whether if it’s by the municipality or some huge corporation.”

Regarding Friday’s hearing, Barfield said, “Mr. Metz’s actions wasted approximately $15,000 of attorney time and taxpayer funds and three hours of court time. The city continues to urge the defendants to give due consideration to the favorable settlement offers made.”

KORN Petitions Rejected

Commission rejects KORN initiatives

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News, Featured.

BRADENTON BEACH – Bradenton Beach Commissioners have rejected four charter amendment initiatives pursued by the Keep Our Residential Neighborhoods (KORN) political action committee.

Barring a court order or a new petition initiative done according to the city charter, KORN’s proposed charter amendment questions will not appear on the city ballot this fall.

KORN’s charter initiatives propose a citywide prohibition on multi-level parking garages, hiring a full-time city manager, increasing setback restrictions and prohibiting vacant commission seats from being filled by commission appointment.

The commission based its decision on KORN not following the charter’s referendum procedures and on insufficiencies and concerns cited by City Clerk Terri Sanclemente, City Attorney Ricinda Perry and City Engineer Lynn Burnett.

After nearly two hours of debate on Thursday, June 21, the commission adopted three motions. The first was for the commission to uphold Sanclemente’s decision to reject the proposed amendments according article 4 of the city charter. The second stated KORN’s initiatives do not comply with Florida Statutes 166.031 and 101.161. A third motion directed city staff to defend the city charter and represent the city in any litigation arising from the KORN petitions.

All three motions were approved by 4-1 votes, with Commissioner Randy White in opposition.

As he left city hall, KORN chairman Reed Mapes said, “I’m calling my lawyer.”

As of mid-day Monday, a lawsuit had not been filed.

Petition insufficiencies

On June 4, KORN treasurer John Metz submitted the signed petitions to the clerk’s office with a note citing 88 signatures for the parking garage petition, 87 for the vacancies petition, 83 for the setbacks petition and 76 for the city manager petition.

The referendum requirements in the city charter and state law require verified signatures from at least 10 percent of the registered electors in the preceding general election. According to the Manatee County Supervisor of Elections Office website, Bradenton Beach had 744 registered in November 2017.

“Now you put us in a position where we either don’t follow our city charter or we go to litigation.”
– Jake Spooner, Bradenton Beach Commissioner

On June 11, Sanclemente sent Metz a letter stating KORN didn’t form a five-member petition circulating committee, didn’t use the city’s required forms and didn’t provide accompanying affidavits stating each petition was signed in the presence of a committee member.

“This office has testimony that petitions were mailed to residents and were not signed in the presence of a committee member,” Sanclemente wrote. “Accordingly, your petitions are deemed insufficient pursuant to the city charter.”

KORN was given 10 days to file amended petitions. Sanclemente recapped these insufficiencies for the commission and said Metz refused to accept the petitions mailed back to him.

During that morning’s Charter Review Committee meeting, the city engineer said KORN’s setback amendment could negatively impact stormwater retention. She recommended revising the amendment language or addressing those concerns in city code instead. Perry said the amendment could expose the city to Bert Harris claims.

KORN John Metz
KORN treasurer John Metz tells city commissioners KORN’s charter initiatives were conducted according to state law and not the city charter. – Joe Hendricks | Sun

Commission discussion

“We’re using the same process that was used last year, a state process under 166.031,” Metz told the commission.

He was referencing charter initiatives pursued by the Concerned Neighbors of Bradenton Beach (CNOBB) in 2017. Perry said those voter-adopted charter amendments still contain unresolved conflicts.

“The city is a conduit through which we operate. There’s nothing the city’s to do except to follow statute. I’m here to ask you to send these petitions on. I think there’s enough litigation going on that we don’t need more,” Metz said.

“Did you follow the procedure in our charter?” Cole asked.

“It’s not appropriate,” Metz responded.

“You don’t find it appropriate, but our job is to follow our city charter. Now you put us in a position where we either don’t follow our city charter or we go to litigation. Why didn’t you follow our charter?” Commissioner Jake Spooner said.

“We’re not required to,” Metz said.

Perry said the Elections Office only determines whether enough verified petition signatures were obtained and it’s up to the commission to review referendums for compliance with the charter and state law.

“You were sworn in to uphold this city’s constitution, which is its charter, and state law,” Perry told the commission.

Perry said state law limits ballot summaries to 75 words and ballot titles to 15 words. The ballot summary for the vacancies amendment contains 102 words and the setbacks summary contains 89. According to Perry, all four ballot titles exceed 15 words.

The word “outrageous” appears in the parking garage summary and “cronyism” appears in the vacancies summary. Perry’s June 19 memo to the commission referenced a Florida Supreme Court ruling that says, “The ballot summary should tell the voter the legal effect of the amendment and no more. The political motivation behind a given change must be propounded outside the voting booth.”

Perry said state law no longer allows land-use referendums and Cole noted the charter’s building height restrictions predate the change in state law.

Chappie said the first question to be answered was, “Does the charter apply or not?”

Perry said the charter was created according to state law and works in tandem with Florida statues.

“It’s not specific to KORN. Our charter has to be followed,” Spooner said.

“This is an attempt to stop these KORN initiatives,” White said.

White said the state process provides citizens with another option if they feel they’re not being heard at the local level.

“Had the city been willing to work with us, we’d probably been able to work all those items out. We’ve found that very much impossible,” KORN chair Reed Mapes said regarding last year’s referendum efforts.

“That’s not true. The city was clearly pleading to work with CNOBB to set up a charter review committee to get it done correctly. CNOBB said no,” Chappie responded.

“What is the problem with following a simple procedure?” Cole said of this year’s efforts. “If you would have done that, it would have allowed us to say yes, let’s put it to the voters without breaking our own city charter.”

Related coverage:

Charter Review Committee appointed

Commissioners discuss parking garages, more

Bradenton Beach Parking Garage

Commissioners discuss parking garages, more

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – City Commissioners want to prohibit parking garages citywide, but they don’t feel amending the city charter is the way to do it.

In other charter-related business, the commission plans to appoint a Charter Review Committee (CRC) that among other things will debate the need to hire a full-time city manager.

Parking garage

At its April 19 meeting, the commission supported Commissioner Ralph Cole’s suggestion that the land development code (LDC) and comprehensive plan need to be amended to ensure that multi-level parking garages cannot be built anywhere in Bradenton Beach. Cole said the language currently contained in the land development code and the comp plan do not mirror one another when it comes to parking garages.

City Planner Alan Garrett told commissioners the comp plan currently allows for parking garages in two of the city’s dozen or so comprehensive plan zone designations. The commission wants to change that to ensure that no multi-level parking garages can be built in the city.

The commission discussion was partly inspired by the Keep Our Residential Neighborhoods (KORN) political action committee’s efforts to place a parking garage prohibition charter amendment question on the November ballot.

City Attorney Ricinda Perry said she does not think state law allows the city charter to be used as the means to address land use issues like a parking garage. She agreed these concerns should be addressed as commission-enacted amendments to the land development code and comp plan.

City Manager?

During the April 19 meeting, some commissioners shared their thoughts on hiring a full-time city manager – another charter amendment proposed by KORN.

Cole said previous CRCs have discussed hiring a city manager but never recommended it.

“It always comes down to the budget and you’d have to fund another position. Can we afford it? Would we have to raise taxes for the manager’s position?” Cole said.

Mayor John Chappie said he prefers the city’s current weak mayor form of government because it provides equal decision-making authority for all five commission members. He feels this prevents a strong mayor or city manager from having too much influence on the decision-making process.

During public input, KORN founder and treasurer John Metz expressed support for a city manager. He feels a city with a $3 million annual budget needs a professional manager.

He suggested a city manager trained in the execution and fulfillment of contracts could have prevented the delays the city’s experiencing with getting a floating day dock installed alongside the Bridge Street Pier.

Chappie, Perry and Cole disagreed with Metz’s opinion that a city manager could have prevented the delays the city has been subjected to by its dock contractor, Technomarine.

“I think it’s running very well the way it is,” Commissioner Marilyn Maro said of the city’s current form of government.

Maro praised the monthly department head meetings that provide commissioners with updates from staff regarding their efforts to carry out the commission’s directives and she encouraged residents to attend these meetings.

Charter review committee

The city clerk’s office will accept applications for CRC members through May 7. Chappie will then nominate members for the commission’s approval. Commissioners can also recommend committee members.

The appointed committee will conduct a comprehensive review of the city charter – the legally binding document that determines how the city is governed and operated.

The CRC will be asked to review and clarify three charter amendments adopted by city voters last fall. The committee also will be asked to help better define the residency requirements placed on city commissioners and commission candidates.

The committee will have the ability to review, but not alter, the four charter amendments proposed by KORN. The committee could then propose its own amendments to address concerns raised by the KORN amendments.

The committee can also propose for commission consideration any other charter amendment the committee feels would be beneficial to the city and its citizens if supported by city voters in November.