Ballard B & B Issue

(The following are excerpts from all the documents I could find at City Hall (to date) regarding this issue. However, there could be additional material that I am unaware of. I’ve done my best to give you a short synopsis of each document but you may go to City Hall and purchase copies, if you wish to delve further.)

Please read my disclaimer at the bottom of page 2 and apply it here, also. I did my best with no malice intended. - Pat Chadwick

PLDRC - April 26, 1999: (Discussion on proposed Bed & Breakfast at corner of Barbe and Tangerine.) Resident Barbara Ballard (home not built) stated she understood a residence could have a three bedroom Bed & Breakfast but that she desired a four bedroom Bed & Breakfast so it could be listed by AAA. A long discussion took place regarding accessory use of a home as a Bed & Breakfast in single-family residential districts. Ms. Ballard was directed to approach the City Commission regarding a four bedroom B & B.

May 20, 1999: Ballards write letter to City Commissioners stating they were in the process of purchasing property on the corner of Barbe and Tangerine. It stated in part, “. . . and hope to start building our dream home by the end of July.” And, “Since we have four grown children between us who either come for dinner or come for the weekend from out of town, we naturally need several rooms!” Their wishes to have a small Bed and Breakfast in their home were also stated.

Commission Meeting – May 20, 1999: “Ms. Barbara Ballard stated that the only request she had was for permission to build a four bedroom Bed & Breakfast in order to be able to become AAA certified. That is their minimum requirement.”
“Atty. Alexander said that he felt as though the Commission should not entertain the request at this point because they have no vesting in the land.”

“Commissioner Clauser disagreed with Atty. Alexander.”

“Commissioner Shuttleworth stated he was concerned about parking, traffic and ‘stated that the proposal is too open-ended at this point.’”
Commissioner Tamburro stated that “he is opposed to any four bedroom Bed & Breakfast except on a main thoroughfare. There are currently no limitations on how much can be built.”

“Ms. Ballard indicated that all the neighbors seem to be positive except Mr. Tamburro.”

“The Commission requested that this be placed on the next agenda for consideration.”

“Ms. Ballard stated that she wished to make a formal complaint against Commissioner Tamburro for unethical behavior and remarks to the property owner.”

Commission Meeting – June 3, 1999: “Ms. Barbara Ballard requests Commission approval for a four bedroom Bed and Breakfast instead of a three bedroom Bed & Breakfast as per city ordinance.”

“Atty. Teal indicated that it is not a variance that is being requested, but rather an expansion of allowable use. He said that he felt as though the contract is not valid. There is no legal description, no survey has been done and there is just not enough information available. He stated that he is also concerned that this may trigger a subdivision of land which has no principal building. This raises the question of how you have an accessory use with no main building. Atty. Teal indicated by ordinance numbers various questions that arise. It is his opinion that not enough information is available to render a decision.” “Atty. Teal again voiced his concerns about sub-divisions and a minor replat and urged the Commission to proceed with caution.”

“Motion by Commissioner Clauser, Second by Commissioner Shuttleworth to approve Ms. Ballard’s request for a four bedroom Bed & Breakfast and to require that she apply for all applicable permits and comply with all regulations of the Bed & Breakfast ordinance.”
“Commissioner Tamburro indicated his desire to “go by the book” and felt as though it would be unwise to ignore the attorney’s advice. He said that he felt as though this would in essence create a commercial enterprise in a residential area.”
Many other concerns were raised.
Motion and second were withdrawn.

June 17, 1999: The Ballards closed on the purchase of the property. (See Ballard lawsuit.)

June 28, 1999: Minor replat was approved by the PLDRC. (See Ballard lawsuit.)

July 29, 1999: The Ballards purchased the piece of property on the lake across the street from the property bought in June 1999.

Commission Meeting - August 5, 1999: “Motion by Commissioner Clauser, Second by Commissioner Cherry to approve a Minor Replat of the Erdos’ property located at the intersection of Barbe St and Tangerine St. Motion carried unanimously.”

“Ms. Barbara Ballard requests Commission permission to construct a four bedroom Bed & Breakfast facility on the previously addressed site. A three bedroom facility is permissible, but a four bedroom facility requires Commission approval.”

Ms. Ballard indicated the request requires a simple “yes” or “no.”

Commissioner Tamburro takes the position that a Bed & Breakfast is an accessory use and therefore by definition requires a primary use.
(An hour long discussion took place.)

“Motion by Commissioner Clauser to approve a four bedroom Bed & Breakfast for the Ballards.”

“Commissioner Shuttleworth seconded the motion subject to amendments ensuring that the Ballards operate the facility for three years, the building plans come before the Commission for final review and that the Bed & Breakfast be in operation within two years.”
“Ms. Ballard volunteered to comply with these requests.”

Motion and Amendments were withdrawn.

“Motion by Commissioner Shuttleworth to approve a four bedroom Bed & Breakfast on the Ballard property, said Bed & Breakfast to be owner occupied and operated for at least three years, to be in operation within two years and subject to final building plans being approved by the City Commission. Second by Commissioner Clauser.”

“Commissioner Tamburro questioned whether the existing ordinance is valid and would like to wait for Municipal Code’s opinion. This borders on spot zoning.”

“Motion failed by a vote of 3-2. Commissioners Cherry, Tamburro and Mayor Craft voted in opposition to this motion. Commissioners Shuttleworth and Clauser voted in favor of this motion. A request for a fourth bedroom is denied.”

August 9, 1999: Ballards applied for an Occupational License for a Bed and Breakfast. (See lawsuit filed by Ballards)

October 21, 1999: Ballards filled out application for a residential building permit (#00-2449) without supporting documents (except for an uncertified plot plan). Permit was voided due to lack of action by applicant.

October 21, 1999: Ballards applied for a septic tank permit, etc. (See lawsuit filed by Ballards) (#DEL1999-681)

Commission Meeting - October 21, 1999: Ms. Ballard “addressed the Commission regarding the proposed moratorium on Bed & Breakfast facilities.”

Atty. Alexander indicated “that she should not be included in the moratorium but that should the ordinance change before her facility is complete, she would be subject to any new provisions contained within such an ordinance concerning safety, health or welfare.”
“Commissioner Tamburro indicated that he had performed considerable research on this issue and that a Bed & Breakfast permit can not be pulled until a house is built. Also, he questioned the applicability of State Statute 166.041 in this case because Bed & Breakfast were never an agenda item and consequently, in his opinion, this ordinance does not exist.”

Commissioner Tamburro “indicated that he would file a suit if necessary.”

Commissioner Sonnenfeld “wanted it very clear that when Ms. Ballard pulls a permit, it must be for a residence only and that an Occupational License for a Bed & Breakfast may be pulled only after the residence is constructed. Also, it must be very clear that if the ordinance changes, Ms. Ballard is subject to all changes that are added unless such proposed changes are designed to be applied to her only.”

“Motion by Commissioner Shuttleworth, Second by Commissioner Cherry to give assurance to Ms. Ballard that she is allowed to construct a three guest room Bed & Breakfast facility on her site at Tangerine and Barbe streets.”

“Commissioner Sonnenfeld wished to clarify through the attorney that they would not be exempted from future changes to the ordinance and that when they pulled a permit it would be for a residence, not a Bed & Breakfast facility. This needed to be very clear because the ordinance clearly states that a Bed & Breakfast is an accessory use. Also Ms. Ballard must adhere to all provisions of Section 7.02.04 of the Code of Ordinances.”

“Atty. Alexander indicated that this was correct.”

“The vote was as follows: Commissioner Shuttleworth, yes; Commissioner Cherry, yes; Commissioner Sonnenfeld, yes, with the clear understanding of the stated restrictions and provisions; Commissioner Tamburro abstained from voting. Commissioner Tamburro indicated that he did not feel as though the ordinance is valid and will not vote. Mayor Craft, no.”

October 25, 1999: Barbara Ballard attended her first meeting as board member of the PLDRC.

Commission Meeting – January 6, 2000: “Motion by Commissioner Sonnenfeld, Second by Commissioner Long to direct the PLDRC to define and clarify the Bed & Breakfast ordinance and present a revamped ordinance to the Commission. Motion carried unanimously.”
“Mayor Shuttleworth indicated that he would contact Ms. Ballard if a time-frame specifically relating to her Bed & Breakfast was to be an item for discussion at the next meeting.”

Commission Meeting – January 20, 2000: Ms. Ballard was asked by Mayor Shuttleworth for a time frame for construction. Ms. Ballard indicated that she is reluctant to commit until she speaks to her attorney. She has received nothing more than what is an allowable use by ordinance….

“Ms. Ballard indicated that she would try to establish a reasonable time-frame.”

July 12, 2000: According to the Ballard lawsuit, the Ballards applied for a building permit on this date but City Hall has not been able to substantiate the claim and have found no such record.

PLDRC - August 28, 2000: (Discussion on Bed & Breakfast issues.) It was suggested by a board member that Bed & Breakfasts should be placed in “Multi-Family” or “Mixed Commercial Districts.” Since the city did not have “Multi-Family” it was suggested that “Mixed Commercial” would be viable. It was agreed by most (board member Barbara Ballard disagreed.) that Bed & Breakfasts were a commercial enterprise.

PLDRC - February 26, 2001: “A) Discussion and recommendations regarding appropriate land use district(s) for Bed and Breakfast establishments.”

It was pointed out that Bed & Breakfasts were an allowable accessory use in residential and non-residential districts.

DeLand does not have Bed & Breakfasts unless they are an accessory use of a single-family home – 50 yrs of age or older.

DeLand allows Bed & Breakfasts in residential districts -only if one side of the property abuts Commercial – thus Bed & Breakfasts are “transitional”.

A motion was passed to place Bed & Breakfasts in Mixed Commercial Districts with Board Member Barbara Ballard voting against it.

March 1, 2001: Barbara Ballard applied for a residential building permit (#01-2602).

March 23, 2001: Permit #01-2602 for a home was signed by the inspector and fees paid by the Ballards also in late March.

April 5, 2001: Letter from City Administrator to Ms. Barbara Ballard in regards to attached opinion pertaining to the Bed & Breakfast issue:
The property is zoned for a single family residence and a building permit would be issued for the construction of a single family residence.

“Section 7.02.04, Code of Ordinances of the City of Lake Helen, provides that “Bed and Breakfast facilities shall be an allowable accessory use in residential and non-residential districts. The property owners of residences currently have a use by right to use three (3) rooms of a residence as a bed and breakfast” … “additional rooms would require a special exception.”

The PLDRC proposed amending this Code (it is pending) to allow Bed & Breakfasts in Mixed Commercial.

The provisions of Section 7.02.04, Code of Ordinances of the City of Lake Helen, do not apply at this time as no underlying use exists relative to which an accessory use could be initiated.

The action of the City Commission granted the Ballards no rights but merely restated the provisions of Section 7.02.04 as applied to the property of the Ballards.
The Ballards would be subject to the provisions of that Code amendment (Ordinance 2001-04 - Ordinance placing Bed & Breakfasts in Mixed Commercial Districts)

PLDRC - April 10, 2001: Mr. Findell said that there would be a public hearing on the revised Ordinance concerning Bed & Breakfasts on April 23, 2001.

April 20, 2001: Letter from the Ballards to the City of Lake Helen saying in part, “. . . we have previously been approved for the construction of a bed and breakfast. . . Please issue our license immediately.”

PLDRC - April 23, 2001: A motion was passed to approve the proposed new Ordinance with board member Barbara Ballard voting against it. This Ordinance placed Bed & Breakfasts in Mixed Commercial Districts.
Ms. Ballard resigned from the PLDRC after this meeting.

April 25, 2001: Letter from City Administrator to Ms. Ballard that an Occupational Permit for a Bed and Breakfast had not been issued because the “principal use, which is required by the Code for a bed and breakfast use to be an accessory to, did not exist.” Also, it was stated, “You have recently been issued a building permit for the construction of a residence. At the time the home is completed, a final inspection will be conducted and, if the construction is in compliance with all applicable codes, a certificate of occupancy for the home will be issued.”

Commission Meeting – May 17, 2001: “Consideration of Ordinance 2001-04, amending Sections 2.02.02 and 7.02.04 of the Code of Ordinances relating to Bed and Breakfast facilities, on first reading.”

“Commissioner Tamburro questioned Mr. Findell on his definition of adverse impact.”

“Mr. Findell stated that adverse impacts to residential neighborhoods generally related to number of vehicles, people, outside activities (special events, weddings); defined as noise not typically encountered on a routine basis.”

A long discussion took place regarding this subject with many audience members participating.

“Motion by Commissioner Sonnenfeld, Second by Commissioner Tamburro to approve Ordinance 2001-04, amending Sections 2.02.02 and 7.02.04 of the Code of Ordinances relating to Bed and Breakfast facilities, on first reading. Motion passed 3 – 2 with Commissioners Long and Cherry dissenting.”

May 23, 2001: Letter from the Ballards to the City of Lake Helen requesting “grandfather status.”

June 13, 2001: Letter from the Ballards to the City of Lake Helen requesting to be placed on the Agenda before the Public Hearing regarding Ordinance 2001-04 at the June 21, 2001 City Commission meeting.

Commission Meeting - June 21, 2001: “Commissioner Long requested that it be stated for the record that his wife worked in the office of the Ballard’s attorney (Richard Taylor).”

The Ballards request “grandfather status” concerning their anticipated B & B.

“Commissioner Sonnenfeld indicated that he had a problem with the Ballards’ continual inability to specify a time-frame for completion of their project. He stated that Ms. Ballard had agreed at the January 20, 2000 Commission meeting to confer with her attorney and then provide the City’s attorney with a time-frame for completion of their project. However, she neglected to fulfill this obligation as a time-frame for completion was never offered.”

“Motion by Commissioner Long, Second by Commissioner Cherry to take the necessary action to give grandfather status to the Ballards in order to allow them to complete their proposed bed and breakfast and use it as such.”

Commissioner Sonnenfeld stated “that he felt that the PLDRC’s recommendation to move Bed and Breakfasts into the Mixed Commercial land use district was made as a reaction to a public welfare concern to protect privacy rights in residential neighborhoods.”

City Attorney Lonnie Groot indicated that “the Ballards’ issue of vested rights was moot as discussion on their desire to have a Bed & Breakfast had revolved around an accessory use which had not existed because there had been no principal use. Because the accessory use could not have existed without a principal structure, discussions pertaining to it were purely hypothetical, in Atty. Groot’s opinion.”
“Motion and second withdrawn.”

“Motion by Commissioner Long, Second by Commissioner Cherry to amend Section 7 of the proposed Bed & Breakfast Ordinance to read as follows: “This Ordinance shall become effective on February 1, 2002.” Motion failed.

“Motion by Commissioner Sonnenfeld, Second by Commissioner Tamburro to adopt Ordinance 2001-04, amending Sections 2.02.02 and 7.02.04 of the Code of Ordinances relating to Bed & Breakfast facilities, on second and final reading. Motion carried 3 – 2 with Commissioner Long and Cherry dissenting.”

“Motion by Commissioner Long, Second by Commissioner Cherry that the Ballards, John Smart, Mr. & Mrs. Grady Snowden and Mr. & Mrs. James Morris be exempted from the provisions of Ordinance 2001-04. Motion failed 3 – 2 with Commissioner Sonnenfeld and Tamburro and Mayor Shuttleworth dissenting.”

September 6, 2001: Letter from Ms. Barbara Ballard stating she is withdrawing from running for election for Zone 4 Commissioner.

October 2001: Lawsuit filed by the Ballards against the City of Lake Helen to exempt the Ballards from Ordinance 2001-4 as their Bed & Breakfast facility is being constructed.

November 6, 2001: Motion to Dismiss filed by the City Attorney for numerous legal reasons. (See document)

City Commission - December 6, 2001: (new Commission) “Discussion regarding disposition of litigation related to the proposed Ballard Bed and Breakfast establishment, per Commissioner Long’s request.”

Commissioner Long indicated that he desired to repeal Ordinance 2001-04 (Ordinance placing Bed & Breakfasts in Mixed Commercial Districts) or amend the effective date of the Ordinance to January 1, 2003 or for the city to grant all necessary permits to the Ballards and develop all settlement documents or settle with the Ballards.

“Motion by Commissioner Long, Second by Commissioner Cherry to assign the City Administrator and the City Attorney the responsibility of developing criteria that could be considered in the development of a settlement and could be used in settlement negotiations to be considered by the Commission specifically for the Ballard issue to be discussed at the February 7, 2002 Commission meeting. Long, Cherry, Snowden and Finn voted “yes” with the mayor voting “no.””

DEFENDANT, CITY OF LAKE HELEN’S,
MOTION TO DISMISS COMPLAINT

        COMES NOW the Defendant, CITY OF LAKE HELEN (hereinafter the “City”), and requests the Court to enter an Order dismissing the Complaint and action filed in this case, and in support thereof, the City states as follows:

        (1) The Complaint fails to state a cause of action upon which relief can be granted. The Plaintiffs do not allege that they have a primary use of the subject property that is the subject of their Complaint, but, instead, allege that they are entitled to a contingent “accessory” use that would be inferior and subordinate to a primary use once one is established on the subject property (a fact that the Plaintiffs do not allege). Indeed, the Plaintiffs ask the Court to grant a legal status to an accessory use that, at one point in time under the provisions of the Code of Ordinances of the City of Lake Helen, could have been placed on the subject property, when the primary and underlying use was in place under alleged facts that state that the primary use is not complete and that there is not a present use of the subject property. Accessory uses are subordinate to the primary permitted and lawful uses of property and cannot exist without a primary use being in place The Plaintiffs continue to refer in their Complaint to permits for a bed and breakfast facility when there is no such use is physically or legally possible until a primary use is located and established on the subject property. Indeed, the Plaintiffs, in paragraph 47 of their Complaint, state that they did not intend to open any facility on their property until October, 2001 The requested injunctive relief is improper and cannot be granted absent allegations and showings of illegality, fraudulent acts or acts of a clearly oppressive nature None such allegations have been made end none can be proven. As stated below, the Plaintiffs allegations repudiate any purported cause of action that may have been attempted to be pleaded. The Plaintiffs have purported to state a cause of action upon which this Court cannot grant relief and that is inappropriate as a matter of law. In any event, the Plaintiffs request that this Court order the County to exempt the Plaintiffs from an amendment of the Code of Ordinances of t he City of Lake Helen and grant them special treatment and status relative to the new Code provisions. Property owners are not entitled to rely upon zoning codes and rand use regulations remain in a static condition never to be changed..

        (2) The Complaint is barred by the doctrine of laches. To the extent that the Plaintiffs may have had rights under a prior ordinance of the City, the Plaintiffs delayed taking actions that they could have taken and did not proceed in an expeditious manner to attain an accessory use of property that was dependent upon the construction and use of property for a primary use. The delays that the Plaintiffs elected to incur were not the fault of the City

         (3) The Complaint is barred by the doctrine of waiver To the extent that the Plaintiffs may have had rights under a prior ordinance of the City, the Plaintiffs acted in a manner that resulted in the waiver of the rights. The Plaintiffs, to the extent that any hardship may have resulted to them, have caused the hardship to fall upon themselves and the hardship is self imposed. The Plaintiffs delayed and did not proceed in an expeditious manner to attain an accessory use of property that was dependent upon the construction and use of property for a primary use.

         (4) This case is not ripe for adjudication as the Plaintiffs have not sought any approval that has been denied by the City. The Plaintiffs complain that they are entitled to a subordinate and inferior use to a primary use when there is no allegation that the Plaintiffs have been denied any permit of any type whatsoever relative to the primary use of the subject property

        (5) This Court is without jurisdiction as the Plaintiffs seem to rely upon a “decision” that was made by the City Commission on June 3, 1999. That decision, which required the Plaintiffs to” .. apply for all applicable permits and comply with all regulations of the Bed and Breakfast Ordinance”, was not appealed. Rule 1.630(c), Florida Rules of Civil Procedure, provides that “[al complaint shall be filed within the time provided by law, except that a complaint for certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed.” (Emphasis added) Similarly, Rule 9 110(c), Florida Rules of Appellate Procedure, provides that a petition for writ of certiorari must be filed within 30 days of the date of the rendering of the order to which the petition relates.’ (Emphasis added). Thus, the Court is without jurisdiction to hear any complaint raised or appeal asserted pertaining to the action of the City that may have been taken on June 3, 1999. In any event, the action of the City requires that the Plaintiffs comply with the applicable Ordinance and obtain all required permits. That is exactly what the Plaintiffs now ask this Court to excuse them from doing Even assuming that the action of June 3, 1999 was appealable, the Plaintiffs attach to their Complaint, as Exhibit “B”, a copy of a Warranty Deed that purports to show that title to the subject property did not vest in the Plaintiffs until June 17, 1999.

        (6) The Complaint asks this Court to become a “super zoning body” and engage in legislative activities in contravention to the provisions of Article II, Section 3 of the Constitution of the State of Florida which provides that “[t]he powers of state government shall be divided into legislative, executive and judicial branches, No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” The Plaintiffs ask this Court to suspend the effect of a legislative act of a local government. The Plaintiffs ask this Court to step into the place of the governing and legislative body of a local government and, in essence, repeal an Ordinance, duly enacted by the governing/legislative body, in order that the Ordinance will have no effect upon them. The Plaintiffs ask this Court to legislatively exempt them from an Ordinance, the validity of which they do not attack.

        (7) The Complaint does not allege an exhaustion of available administrative remedies and the Plaintiffs have not exhausted available administrative remedies. The Plaintiffs do not allege that they have been denied a building permit or certificate of occupancy pertaining to the property that is the subject of this litigation:

      (8) Assuming, for the sake of argument only, that the Plaintiffs have been wronged, they have adequate available remedies at law such as an appeal of acts of the City or an action for a regulatory taking, etc. If the Plaintiffs have not acted timely as to any legal remedy, that failure to act is not the result of any actions of the City

      (9) The allegations set forth in the Complaint and the exhibits to the Complaint repudiate the claims and request for relief set forth in the Complaint. The Plaintiffs desire that the Court preclude the City from amending its Codes and ordinances. The Plaintiffs attach an un-executed copy of the City’s Ordinance Number 2001-04 and recite, in paragraph 46 of the Complaint, that the Ordinance was enacted on June 21, 2001. In paragraph 47, the Plaintiffs allege that the Plaintiffs intended to open a bed and breakfast facility in October, 2001. The Plaintiffs allege that they had rights vested in them relative to the subject property on June 3, 1999, but Exhibit “B” to the Complaint clearly shows that title purportedly vested in the Plaintiffs not until two weeks later - on June 17, 1999. The Plaintiffs do not allege that the Ordinance attached as an exhibit is invalid in any respect.

DATED this 6th day of November, 2001

Comm. Long requested a discussion regarding the disposition of the litigation related to the proposed Ballard Bed and Breakfast establishment. He stated, “It is my understanding and strong conviction that Ordinance 2001-004 proved to be grossly unfair to Larry and Barbara Ballard who were in the process of getting their bed and breakfast up and running before this ordinance was passed. From reading all documents pertaining to their bed and breakfast and attending meetings pertaining to the same even before I became an elected official, I remain strongly convinced that the door to their endeavor was never closed pure and simple. Now we are faced with a lawsuit and even though our city attorney believes we are in a good position to defend the City’s actions, I do not agree that this is the way to arrive at the proper solution. I know that there is always more than one approach to solving a problem. However, in a case where the resulting solution is obviously wrong, the whole problem needs to be reconsidered. Our community has public officials, that’s us, who really care about its citizens and try to improve the community in a balanced and fair manner. Because this is so, I am confident now of the ability of working things out amicably and to the benefit of all. I have met twice with Lonnie and once with Don regarding this matter and I confess it’s been a tad bit hard to get my arms around some of the legal ramifications, be as it may, here are four options beginning with what I deem least preferable to most preferable”.

Comm. Long’s four options were as follows:

1. A new ordinance which would repeal Ordinance 2001-04.

2. A new ordinance which would amend the effective date on Ordinance 2001-04 to January, 2003.

3. A proposal to settle amicably out of court with the Ballards to be based on the following:

a) the City would grant all necessary permits to authorize the use of the Ballards’ property as a bed and breakfast facility after having granted the Ballards vested rights on the use of the property as a bed and breakfast facility,

b) the City would accept the occupational license relative to the Ballards’ bed and breakfast facility,

c) the City would issue a development order recognizing the Ballards’ facility as a non-conforming use within the City,

d) that the Ballards would release the City from all liability relative to this matter,

e) that the Ballards and the City bear their own fees and costs relating to the litigation,

f) that the City Attorney would take all actions to assist the City Administrator in developing the January 17, 2002 agenda item and contact the Ballards’ attorney lo develop all settlement documents.

4.The Commission consider at its meeting of January 17, 2002 a potential settlement of the Ballards’ lawsuit to the mutual advantage of all involved.

Mayor Shuttleworth indicated that this matter was currently under litigation as the previous Commission had decided that all new bed and breakfast establishments be placed in the Mixed Commercial Land Use District. The Mayor stated that new developments had arisen since then which had prompted the Commission to consider bed and breakfast and lodging facility placements as part of a broader Comprehensive Plan review to take place in the Spring. The Mayor indicated that this would include an extensive review of bed and breakfast facility operations. The PLDRC would be tasked with developing appropriate lot size regulations, landscape and setback requirements and consider allowed activities to be conducted at bed and breakfast establishments. He stated that these regulations were not yet in place and yet Comm. Long was requesting that this issue be considered tonight with discussion involving two new commissioners who had not yet had adequate tune to familiarize themselves with the Ballard issue, which had originated almost three years ago. Mayor Shuttleworth indicated that he had hoped the Commission would support a comprehensive study of bed and breakfast establishment regulations in the Spring as part of a larger Comprehensive Plan review to commence at the PLDRC level.

Comm. Finn noted that he could not comment on unfamiliar past issues, indicating that he had reviewed the minutes from meetings in which discussion on the proposed Ballard bed and breakfast had occurred which still left many of his questions unanswered. Comm. Finn commented that the only way in which he could examine the issue before him tonight would be in the context of the greatest public good. He noted that the existing lawsuit promised, considerable expense to the City with no guarantee of the City prevailing and if the examination of this lawsuit was the issue tonight, he would venture the opinion that a $10,000 to $20,000 lawsuit expense to the City was not in the greatest public good.

Comm. Snowden noted that this was a very polarizing issue and indicated that he desired adequate time to review all the material surrounding this issue. He stated that he was not prepared to make an ill-informed decision because the result of this action could subject the City to further jeopardy.

Mayor Shuttleworth requested that Attorney Groot comment on the pending lawsuit.
Atty. Groot indicated that he felt comfortable defending the case. He noted that he felt that the City had a strong case and was confident that the City should prevail if the correct laws were applied.

. . . . Mayor Shuttleworth commented that he felt that there was an overriding community interest present, and because of this, the City should adhere to the lawsuit process. (This discussion continued for a very long time.)

Motion by Comm. Long, Second by Comm. Cherry to assign the City Administrator and the City Attorney the responsibility of developing criteria that could be considered in the development of a settlement and could be used in settlement negotiations to be considered by the Commission specifically for the Ballard issue to be discussed at the February 7, 2002 Commission meeting. Motion carried 4 – 1 with Mayor Shuttleworth dissenting.

(Later) Mr. Lou Benton approached the podium and indicated that PLDRC members did not have a personal agenda and applied the “fairness rule” to every issue which came before them. He noted that issues were discussed in detail before a determination was made. He expressed his dismay that the Commission seemed to be overlooking the considerations of an entire neighborhood in contrast to one family’s desire to construct a bed and breakfast facility in a residential neighborhood. He noted his displeasure in the Commission’s inability to consider the entire neighborhood and questioned why the City would choose to settle a lawsuit just to avoid litigation. Mr. Benton cautioned that if this was to become policy, then the door would become wide open for any individual to sue the City on any basis knowing that the City opted to settle claims instead of litigating them.

Mr. Rich Tamburro approached the podium and noted that the City responded to the Ballards’ initial request to construct a bed and breakfast facility by informing them that under the current ordinance they did not require permission to construct a three bedroom bed and breakfast facility.

He commented that when Ms. Ballard appeared before the Commission to request permission to construct a four bedroom bed and breakfast facility, a motion was made although subsequently defeated, to allow her to do this as long as she complied with the current bed and breakfast ordinance. He noted that the current bed and breakfast ordinance placed bed and breakfast facilities in the Mixed Commercial Land Use District. He explained that even when she was given assurances, the assurances were based on her ability to comply with the current ordinance. He stated that Comm. Sonnenfeld had requested that the City Attorney clarify for Ms. Ballard what would happen if the ordinance were to change prior to the Ms. Ballard’s ability to secure an occupational license for her proposed bed and breakfast noting that the attorney had indicated that Ms. Ballard would be subject to the rules of the new ordinance.

Mr. Tamburro commented that Attorney Grant’s legal opinion on the Ballard case indicated that she was never given permission to construct a bed and breakfast noting that the City Attorney worked for the citizens and that the City should abide by his legal determination.

Mr. Tamburro cautioned the commissioners to not appear as if they were endeavoring to assist individuals as opposed to the community as a whole. He concurred with Comn. Finn’s ideology to err on the side of the citizens noting that there were approximately twenty citizens in Ms. Ballard’s neighborhood opposed to the construction of her proposed bed and breakfast. He implored the Commission to protect the privacy rights of these individuals indicating that commissioners should allede to the greatest public good as opposed to assisting a private entity.

Mr. Tamburro indicated that the previous Commission elected to submit this issue to PLDRC members whose task it would be to develop criteria for the regulation of bed and breakfast facilities. He noted that this was the fairest way to settle this issue as PLDRC members were not politically motivated and would consider the welfare of the City as a whole prior to making their recommendations. He requested that the current Commission adhere to the plan of the previous Commission by allowing the PLDRC to develop criteria for the regulation of bed and breakfast facilities. Mr. Tamburro noted that a City ordinance regulating bed and breakfast establishments would affect everyone, whereas a separate development agreement allowing one individual to operate a bed and breakfast would not only be subject to change, depending on the needs of that individual and the vicissitudes of the Commission at that time, but would appear as if the Commission were favoring that individual over the general welfare of the community.

Mr. Ralph Kelly approached the podium and indicated that although the Commission had expressed interest in the concerns of the neighbors of the proposed equestrian facility on Pleasant Street, the neighbors of Ms. Ballard were never questioned as to their thoughts and feelings regarding her proposed bed and breakfast facility in their neighborhood. He noted that he felt bed and breakfast facilities were commercial enterprises and therefore did not belong in residential districts. He also commented on the scurrilous language of the proposed proprietress questioning the clientele that this type of person would attract. He mentioned that workers tasked with constructing the Ballard residence were quite noisy and rambunctious, noting that problems with negatively impacting the neighborhood’s solitude were already present and the bed and breakfast facility was not even yet in operation. He implored the Commission to consider the neighbors of the proposed bed and breakfast facility prior to allowing such a facility to operate in a residential area.

Mr. Roger Sonnenfeld approached the podium and noted that it appeared that confusion was evident amongst commissioners regarding the Ballard bed and breakfast issue. He requested that the Commission review the issue thoroughly before rendering a decision. He noted that this was a divisive issue and hoped the Commission would research it carefully to ensure that a tenable determination could be made.

Mr. Sonnenfeld commented that the Clauser bed and breakfast issue was unrelated to the current issue. He noted that the Clausers owned an existing bed and breakfast facility the operation of which had generally received the approval of city residents. He noted that the Ballards’ bed and breakfast facility did not exist and although approval to construct a residence was granted, the operation of the bed and breakfast was an accessory use to the primary residence. He indicated that if, once the construction of the residence was finalized, it met the criteria for an accessory use of a bed and breakfast facility, then an occupational license would have been issued to them for its operation as such. He noted that the Ballard issue extended over a two year period from the genesis of this issue to the time when the Commission adopted an ordinance to place bed and breakfast facilities in the Mixed Commercial District due to the absence of standards for the operation of bed and breakfast facilities in residential districts. Mr. Sonnenfeld stated that the PLDRC had recommended to place bed and breakfast facilities in the Mixed Commercial District until such time as criteria could be developed for the operation of bed and breakfast facilities in residential districts. He reiterated his suggestion for the Commission to thoroughly review the background information on the issue before rendering a decision.

Reverend Grady Snowden agreed that criteria needed to be developed for the regulation of bed and breakfast facilities noting, however, that he felt that this particular issue required immediate attention.

Ms. Barbara Snowden approached the podium and spoke to the benefits of bed and breakfast facilities.

5. Mr. Rich Tamburro, of 160 Barbe Street, will address the Commission regarding potential liabilities facing the City and reasons to proceed with the motion to dismiss the pending bed and breakfast lawsuit.

Mr. Tamburro approached the podium and indicated that he wished to protect the quality of life enjoyed by many Lake Helen citizens. He noted that he had received numerous phone calls regarding the current bed and breakfast litigation and that he had been designated as a representative to present the viewpoint of opponents to settling this issue out of court.

Mr. Tamburro disseminated a document he had prepared to the Commission entitled “Potential liabilities from conflicts with the Lake Helen Comprehensive Plan”. In his attempt to illustrate the seriousness of the situation he also provided commissioners with a newspaper article about a land use challenge which reported that an apartment complex in the South Florida community of Jensen Beach had violated local growth rules. He noted that even though its development had been approved by the city commission, judges had ordered that the complex be demolished because it violated the City’s Comprehensive Plan. He commented that it appeared in cases of land use disputes, that the court system sympathized with residents as opposed to developers. He also noted that Comprehensive Plans were typically sympathetic to residents as well, promoting quality of life over individual rights.

Mr. Tamburro indicated that the document he had presented to the Commission was information he had taken directly from the City’s Comprehensive Plan. He noted that one of the theories behind the presented information was that allowable uses as defined in Comprehensive Plan (land use) disputes utilized a settlement procedure similar to the Harris Act. The settlement procedures outlined in the Comprehensive Plan allowed certain types of negotiations to occur and negotiation procedures which were not adhered to could be challenged in court.

Mr. Tamburro noted that page 23, paragraph D of the Comprehensive Plan indicated that growth was designated to occur from the center of town and expand outwards. This particular item, he noted, was consistent with the previous Commission’s decision to place bed and breakfast establishments in the Mixed Commercial Land Use District, located in the center of town. He also commented that the zoning classification for residential districts was termed “dwelling units” which did not include rental units, boarding rooms, etc.

He also noted that page 34 referred to negotiations of compensation, which should be performed through judicial proceedings.
He commented that page 21 referred to land use regulations enacted by the City which should incorporate standards to ensure stabilization of neighborhoods through the elimination of incompatible and non-conforming land uses.

Mr. Tamburro stated that the City’s disregard of the aforementioned items would subject the City to potential liability. He noted that the City’s allowance of spot zoning would also subject the City to potential liability. Mr. Tamburro referred to pipeline issues when he noted that this issue was defined when the Gateway Corridor Standards were adopted and indicated that in order to have been “in the pipeline” and therefore not subject to an adopted ordinance, an individual must have presented development plans to the PLDRC as a concept plan development review request.

Mr. Tamburro then reviewed real estate law noting that if it could be demonstrated that a bed and breakfast establishment in a residential neighborhood impeded a homeowner’s ability to sell his/her residence, then that homeowner was entitled to seek relief from the City Commission under the Harris Act.

Mr. Tamburro lastly noted that he felt that Comm. Long and Comm. Finn should abstain from voting on bed and breakfast issues as they could reap personal gain from the result of a vote on this issue. He noted that many residences could not be converted into bed and breakfast establishments due to their small size (averaging 5.4 rooms), noting that the size of Comm. Finn’s and Comm. Long’s residences allowed them an advantage over the average Lake Helen household.

Mr. Tamburro ended his discourse by explaining that he felt that the previous Commission had rendered the correct decision by allowing the court system to decide the outcome to this issue. He noted that a hearing for dismissal would utilize an arbitrator at minimal cost to the City. He indicated that he would follow through on his desire to have the City adhere to its Comprehensive Plan and would utilize the services of the legal profession to achieve this goal, if necessary.

Discussion regarding Ballard settlement litigation conditions.

     Mayor Shuttleworth indicated that the City Commission had directed the City Administrator and City Attorney to devise a list of conditions to be used for a settlement negotiation with the Ballards. He noted that the City Administrator had interviewed the Ballards’ neighbors to receive input as to what conditions they would like to see included in this agreement. He commented that since this issue was currently in litigation, he would not recognize anyone from the public for comment on this issue unless public input was solicited by another commissioner.

     Atty. Groot concurred with Mayor Shuttleworth noting that tonight’s discussion was devised to be strictly a status report on the direction which had been given to the City Administrator by the City Commission regarding the Ballard litigation.

     Mr. Findell noted that prior to the development of a settlement agreement, he felt it in the City’s and the Ballards’ best interests to contact neighbors in the vicinity of the proposed bed and breakfast site to garner input on their conditions for the allowance of a bed and breakfast in their neighborhood. He indicated that he had contacted neighbors immediately adjacent to the proposed bed and breakfast and also residents across the lake from the Ballards. He indicated that people residing across the lake would be affected because noise from the bed and breakfast would be amplified across a body of water. Mr. Findell indicated that the concerns of the Ballards’ neighbors if a bed and breakfast was to be located in their neighborhood would allow the Commission to receive as much information as possible in order for commissioners to make an informed decision regarding stipulations for a possible settlement. He noted that it was his intent to present these concerns to the Commission tonight in order to receive further direction from commissioners as to how or if these concerns should be addressed.

     Mr. Findell noted that the primary concerns of the Ballards’ neighbors included noise and traffic and parking issues.

     Mr. Findell indicated that he felt that commissioners would need to decide if they wished to address these concerns as stipulations to be included in a settlement agreement. He noted that he had touched on the range of concerns accumulated from approximately eighteen residents.

     Comm. Cherry expressed her dissatisfaction with the approach Mr. Findell had taken in the development of a settlement agreement.

     Mr. Findell indicated that he was directed by the Commission to develop an agreement and was given a considerable degree of latitude in performing this task. He indicated that he felt it would be unfair to the City and to the Ballards to perform this task blindly without first establishing criteria for the proposed bed and breakfast. He noted that he wished to solicit input from those directly affected by the proposed bed and breakfast in order to address those issues as stipulations in the agreement.

     Comm. Cherry stated that she did not feel that it was necessary to survey the neighbors and was annoyed by the length of time this process was taking.

     Mr. Findell inquired as to on what basis a settlement agreement would be devised if no criteria was first established.

     The Mayor concurred that established criteria was necessary prior to the development of a viable settlement agreement.

     Mr. Findell added that it would be more productive for the City to solicit input from the Ballards’ neighbors in order for the appropriate stipulations to be crafted into the settlement agreement.

     Comm. Long indicated that he had perceived a greater sense of urgency in developing this agreement than what was currently being followed.

     Mr. Findell noted that the Ballard site was still not yet completed and that due to this, the Ballards were not in a position to have guests occupy rooms. Mr. Findell noted that he had granted the Ballards a conditional certificate of occupancy for their home because they had indicated to him that they needed to vacate their current place of residence. Work needed to be finalized on the stormwater berm for their new residence before a final certificate of occupancy could be issued to the Ballards by the City.

     Atty. Groot recommended that commissioners not try to craft a settlement agreement tonight, but offer direction to the City Administrator as to what criteria they would like to see included in said agreement. He noted that it was not guaranteed that a development agreement would be the tool that would be used in reaching a compromise with the Ballards. He indicated that different elements could be used in a compromise such as an amendment to the ordinance or a development agreement and cautioned commissioners not to lock themselves into any particular element.

     Atty. Groot recommended that commissioners negotiate important issues in a settlement agreement with the Ballards to be determined by Commission consensus issue by issue.

     Mr. Findell noted that half of the people interviewed indicated that noise would not be a concern if the bed and breakfast were to be limited to three rooms with no outside activities allowed. A percentage of those indicated that outside activities could be allowed on a limited basis as long as the activity was concluded before dark or the 10:00/11:00 range. Also people interviewed expressed concern with outside amplification and number of guests attending the outside event. Most said, however, that they would exempt a Fourth of July celebration from the aforementioned concerns.

     Comm. Finn viewed these concerns as two issues: events in general with particular attention being paid to the sensitivity of the neighbors and events which would cause the lake to be used as a giant amplifier. He felt that possibly from yard events and back yard events could be addressed.

     The Mayor noted that parking concerns needed to be addressed when discussing outside events allowed at the Ballards’ bed and breakfast.

     Mr. Findell noted that no one interviewed liked the idea of on-street parking.

     Comm. Finn indicated that he was not a proponent of outside events for this area due to the noise ramification that the lake would provide, but he noted that he realized that the Ballards might need to hold an occasional outside event in order for their business to survive. He also felt that the hours for these outside events should be fairly restrictive in consideration of the neighbors.

     Comm. Snowden indicated that he felt the Ballards’ hours should correlate with public park hours which were also located in residential neighborhoods. He also commented that the front yard/hack yard idea might not be feasible due to the sensitivity of the neighbors situated at the hack side of the Ballards’ residence.

     Comm. Long commented that the hours for the events should be dependent upon the number of events allowed per year.

     Comm. Finn noted that if a large number of outside events were allowed annually, then he felt that this allowance would precipitate a straying from the bed and breakfast concept. He indicated that outside events should remain as a limited ancillary use to a bed and breakfast.

     Mr. Findell suggested that the number of guests accommodated on site could be limited to the availability of parking at the bed and breakfast.

     Comm. Snowden noted that guests could be shuttled from a different off-street parking location to the bed and breakfast for outside events.

     Comm. Cherry felt the allowance of six small weddings/receptions annually was reasonable.

     Comm. Long noted that he was against the use of outside amplification, such as a P.A. system, but that he did not have a problem with the use of canoes on the lake.

     Comm. Finn disagreed noting that this allowance would initiate problems with commercial use of the lake.

     Atty. Groot concurred indicating that allowing the Ballards to let their paying guests use canoes on the lake could be interpreted as a commercial enterprise and would open the door for others to use the lake for commercial purposes.

     Comm. Long felt that the sale of alcoholic beverages should be prohibited.

     Comm. Cherry indicated that she felt that the owner should be required to reside on premises.

     Comm. Long felt that retail sales should be limited to guests only. He questioned the length of stay condition.

     Mr. Findell noted that if owners of a bed and breakfast were not successful catering to short-stay clientele, those owners might elect to cater to long-term clients thereby converting their establishment from a bed and breakfast to a hoarding house. He suggested that to alleviate this concern, length of time for stay of guests should be limited to two weeks to one month.

     Comm. Finn concurred noting that certain exceptions to this rule could be considered. He noted, for instance, that film crews sometimes required a longer stay in order to conclude their film productions.

     As for number of meals served, Comm. Finn commented that this bed and breakfast should remain as such by serving breakfasts only to guests of the bed and breakfast. He mentioned that the exception to this rule would be the service of food to the guests of a special event held at the bed and breakfast.

     Mr. Findell commented that for commercial businesses, screening of the garbage handling site was required by Code.

     Comm. Finn concurred noting that he suggested a limitation be placed on the number of garbage containers and/or the size of the dumpster.

     Mr. Findell indicated that the parking area should be landscaped as it would be for any commercial site with a continuous shrub hedge surrounding the parking area.

     Comm. Finn noted his problem with a paved parking area indicating that this requirement was environmentally unfriendly.

     Mr. Findell responded that either a paved or pervious paved area was required by Code. He stated that it was less expensive for an individual to perform the former, which is why most people opted to pave their parking areas.

     Mr. Findell commented that most of the individuals interviewed requested that a landscaping buffer be placed at the Ballards’ property line on Barbe Street. He indicated that he would research the Code to verify exactly what type of buffer would be required.

     Mr. Findell questioned if commissioners preferred the sale of the use to run with the land or be terminated upon conveyance of the property to the buyer.

     Comm. Finn indicated that he felt that the use of the land should comply with the ordinance on record when the sale of the property occurred.

     Atty. Groot noted that it would be very unusual for a land use to be a personal right. He indicated that a use usually runs with the land.

     Mr. Findell concurred but indicated that in this particular situation, the use was not an appropriate land use, but was a condition in the settlement of a lawsuit. Due to this, the land use becomes a personal right and a concession to the individual for the purposes of settling the lawsuit.

     Mr. Findell indicated that he would stipulate in the settlement agreement that the use of the property would run with the individual as opposed to the land and that further discussion could continue on this concern alter the agreement was developed.

     Discussion returned to noise concerns when Comm. Finn questioned what the Commission felt was the definition of an outside event.

     Mr. Findell indicated a common sense perspective on the definition of an outside event would include an activity conducted outdoors involving more than the guests of the bed and breakfast, i.e., weddings, receptions, private parties, etc.. Mr. Findell noted that an important distinction would need to be made between private parties for guests of the bed and breakfast and private parties hosted by the owners of the bed and breakfast.

     Atty. Groot referred to item 9 on the list of criteria suggestions submitted by Ms. Ballard for the operation of her proposed bed and breakfast which stated that uses allowed at the proposed bed and breakfast should include “other activities not listed that are usual and customary to bed and breakfasts”. He commented that a “usual and customary” use was an ambiguous term and recommended that the Commission require specificity as to what activities would and would not be allowed to occur at the bed and breakfast.

     Comm. Finn indicated that he would limit the number of outside events at the bed and breakfast due to the amplification of noise by the lake.

     Mayor Shuttleworth concurred, but asked that these limitations be defined.

     Comm. Cherry queried as to Mr. Findell’s thoughts on this issue.

     Mr. Findell indicated that he felt that twenty to twenty-five people would be unobtrusive in a small neighborhood.

     Discussion ensued as to the number of events to be allowed at the bed and breakfast annually.

     The Mayor passed the gavel to Comm. Cherry and excused himself from the meeting due to illness at 10:00 p.m.

     Commissioners agreed to allow twelve indoor or outdoor events to occur at the bed and breakfast if the guest list was to be limited to twenty-five people per occurrence.

     Mr. Findell noted that activities at outside events should be concluded by sunset.

     Comm. Long felt that one hour after sunset would be an appropriate time to end outside event activities.

     Comm. Finn noted that outside amplification should be prohibited for the courtesy of the neighbors.

     Mr. Findell indicated that he felt that he had sufficient direction after tonight’s discussion to draft a settlement agreement.