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Longboat Key Wednesday, Mar. 5, 2014 3 years ago

Colony hearing on hold until May

by: Kurt Schultheis Senior Editor

The taxpayer bill alone for an anticipated Colony Beach & Tennis Resort public nuisance hearing included $2,400 to reserve Temple Beth Israel, $10,257.75 in attorney fees to prepare for the hearing, $243.50 to mail registered letters to affected parties and numerous hours of town staff preparation that can’t be calculated.

The only problem is three days’ worth of anticipated hearings scheduled for the Longboat Key Town Commission to decide if Colony structures at 1620 Gulf of Mexico Drive constitute a nuisance never really got started this week.

At the start of the public nuisance hearing Tuesday at Temple Beth Israel, Colony Beach & Tennis Resort Association Attorney Don Hemke informed the commission his client had not been afforded due process, explaining that some expert witness reports from the town were not provided until Feb. 26 and one report, a wind report analysis, was not released until yesterday.

“Due process requires documents be made available to get counter experts and people to review those reports,” Hemke said. “We haven’t had near enough time to address this.”

Hemke also said it was the town’s duty to inform mortgage holders of Colony property about the hearing.
Former Town Attorney Dave Persson, who sat with the commission at the hearing due to his previous legal knowledge of the Colony and because he works for the same law firm as Town Attorney Maggie Mooney-Portale, agreed with Hemke’s assessment that not enough due process for the association had been made.

Persson made the legal opinion after Assistant Town Manager Anne Ross announced that much of the information for Tuesday’s meeting, including maps, resolutions and inspection reports, were uploaded to the town’s website Feb. 25. And the wind report wasn’t submitted until late Monday afternoon.

“Due process is a meaningful opportunity to be heard,” Persson said. “If a report was issued yesterday, I don’t think that’s due process.”

Persson, though, said it was his legal opinion that mortgage holders didn’t need to receive notice about the hearing.

Persson suggested continuing the hearing at least 30 days.

Commissioners wrestled with whether to hear some evidence at Tuesday’s hearing, but Persson warned them that an election later this month meant that at least one new commissioner would be on the dais the next time the commission reconvenes.

“I want to do this carefully and correctly and not even all of the commission candidates are out in the audience,” said Commissioner Phill Younger.

Commissioner Jack Duncan and others also expressed hesitation with moving forward.

“I don’t want this to be challenged legally,” Duncan said.

Commissioner Terry Gans said it would be a mistake to hear some of the evidence Tuesday and more of it almost two months later.

“I don’t want to hear some of this today and the rest of it later,” Gans said.

The hearing was continued until 9 a.m. May 28 at Town Hall. The hearing could also continue on May 29 and May 30.

Commissioners expressed frustration and apologized to those in attendance, including Colony unit owners and other interested parties that traveled from up north to make the hearing.

“I assure everyone the town takes this matter very seriously,” said Mayor Jim Brown. “The town has a $170,000 budget line item to handle this Colony issue and this isn’t an inexpensive process for anyone, but we want to do it correctly.”

After the hearing, Mooney-Portale told the Longboat Observer the town “tried to put pressure on the experts to submit their supplemental reports sooner.”

“We had most of the reports in, but not all of it,” Mooney-Portale said. “Attorneys can question due process and throw up anything on the wall and see what sticks and in this instance, the due process wasn’t met and it stuck.”

Asked if the town thought there might be a due process issue leading up to the hearing, Ross said she wasn’t aware of one until right before the hearing.

“Our marching orders were to make everything available as soon as it became available,” Ross said. “That’s what we did.”

Hemke told the Longboat Observer “the town did the right thing.”

When asked if he informed the town if he had an issue with reports coming in later than expected prior to the hearing, Hemke said he did not and only informed town legal counsel about his plans right before the hearing started.

Brown and Commissioner Lynn Larson expressed frustration with its legal counsel after the hearing.

“This was a waste of time and a waste of money,” Larson said.

Brown said he was going to have to investigate the issue further.

“There’s going to have to be questions asked and questions answered from our legal counsel,” Brown said. “If you think there might be a reason to notify someone, you should notify them. And as far as submitting documents on a timely basis for the other party to review, that seems like a no brainer.”

Bond Reversal
The Longboat Key Town Commission agreed at its regular meeting Monday to revise an ordinance that requires the Colony Beach & Tennis Resort Association to post a bond of $250,000 for the town to use in extreme circumstances. The bond was reduced back to the original $50,000 amount and the association has agreed to withdraw its legal challenge that challenged the increased bond. The town can revisit the bond amount in future ordinances though. The current ordinance with a $50,000 bond amount is valid through April 30.

Contact Kurt Schultheis at [email protected]


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