Letter to the Editor

Monday, April 10, 2006

Editor
Cedar Key News
Box 334
Cedar Key, Florida 32625

Dear Editor:

Local newspapers published a series of accounts in recent weeks about the progress of the renovation and historic preservation of downtown Cedar Key. A hotel and other commercial enterprises are planned by the developer, Cedar Key Holding LLC. The developer intends to meet the requirements for a 20% historic preservation tax credit. As one who was previously licensed to practice before the IRS as an Enrolled Agent, I would advise that the developer should be concerned about qualifying for the tax credit if laws were violated in the certification process.

First, let me establish that I am in no way against Cedar Key Holding LLC development plans. I am against the apparent use of double standards by our governing body. These apparent double standards have led to concerns about possible violations of the Laws of Cedar Key (the Code) as they pertain to the historic review and certification process, and possible violations of the Florida Sunshine Law (286.011). These concerns are the reasons for this letter.

The concern that violations of state and local laws have occurred within our city government arose through local news reports covering the December 14, 2005 and January 3, 2006 Cedar Key City Commission meetings. These news accounts were later verified by certified commission meeting minutes. Questions and issues that arose at these meetings about the hotel development, and the replies and comments by City Attorney David Coffey, are troubling. It appears David Coffey, and unknown city officials, were involved in removing the Historical Preservation/Architectural Review Board from the Code mandated Certificate of Appropriateness process and may have thereby violated the Code and Florida Sunshine law in doing so.

The certified minutes of a December 14 City Commission meeting raises concerns. The progress of the CKH LLC preservation project was discussed. Commissioner Vanessa Edmunds, who is also the Vice Mayor, was reported to have remarked that the Historical Preservation/Architectural Review Board process had not been completed. David Coffey, reportedly responded that the commission is not required to get recommendations from the HARB. Coffey's response conflicts directly with the Code as it applies to the HARB organization and responsibilities.

The Code states Under the General Functions, Powers and Duties for the HARB (11.03.02), "The Board shall act as an interested party at a public hearing to approve, conditionally approve, or deny an application for a Certificate of Appropriateness." The Code requires HARB representatives to be at such meetings. That they attend as an "interested party" requires that the Commission hear them before making a Certificate of Appropriateness determination. This was not done by the City Commission. David Coffey's advice inappropriately ignores these provisions of the Code.

Commissioner Edmunds then noted the HARB asked for a scale model of the development from CKH LLC. The certified meeting minutes reported Coffey replied that such a submittal was not a requirement of the Code. He added this was part of the reason the application process didn't go back to the board." This Coffey response seemingly violates the Cedar Key Code just described as well as provisions of the Sunshine Law.

In excluding the HARB from further participation in the certification process, David Coffey, and any other city officials involved, (Coffey et al) were inhibiting the HARB from performing their official duties required by the Code. Again, under the General Functions, Powers and Duties of the HARB the Code states in part that the HARB, "shall review development proposals for visual compatibility and advise the City Commission on the criteria for Certification of Appropriateness as provided in Section 3.01.05 of this Code."

Section 3.01.05 of the Code lists eleven areas that must be considered before issuing a Certificate of Appropriateness and the HARB must advise the City Commission on them. While a scale model may not be specifically stated in the Code, the authority for the HARB to request one is consistent with their mandated duties.

Apparent violations of the Florida Sunshine Law (Section 286.011) have also occurred. The certified minutes reveal the Vice Mayor of the City Commission was unaware that the HARB has been excluded from the certification process. Ex parte discussions therefore occurred between Cedar Key government official(s) and the developer. The decision to overrule and remove the HARB from the process was an "official act" and occurred out of the public eye. There is no public disclosure record in City Hall as to who made the decision and when. This indicates a violation of the Sunshine Law by any city official, board member, or staff involved (Coffey et al).

Section 286.011 states meetings must be open to the public at all times where "official acts" are taken. It further states no formal action shall be considered binding except those made at a public meeting. Section 286.011 does make provisions for ex parte communications with local officials if the municipality establishes a process to disclose these ex parte communications. The City Commission had not done so at the time the earlier Commission meeting minutes were certified.

The state law also stipulates a public official must be a member of the board in question to discuss board issues ex parte with an applicant. David Coffey et al are not members of the HARB and the law prohibits them, public officials, from speaking about HARB matters in an ex parte communications. It appears the decision was made without consultation with the HARB, or even all commissioners.

The certified City Council meeting minutes on the January 3 City Commission meeting, where the Certificate of Appropriateness for Cedar Key Holdings LLC was approved, reveals two HARB members in attendance expressed concern about the rush to approve the development. The fact a development scale model had been agreed to earlier by the developer was surfaced. The minutes reported Coffey responded that scale models are expensive and are not required by the Code. The criteria, "scale," the HARB must consider is in the Code. The HARB "request" for a scale model is therefore consistent with their Code mandated duties. Why the developer could not provide a computer model as a less expensive alternative was apparently never considered.

The minutes also state that Commissioner Edmunds commented that the application needed to be acted on right away. The HARB made its requests at their board meeting back in September 2005. Why the sudden rush in January 2006?

As a citizen, I am using this letter as a means to petition the City Commission to revisit the entire HARB issue vis a vis the development. The HARB wanted a town hall meeting. If my understanding of the Code and Sunshine Law is correct, David Coffey et al does not have the lawful authority to cancel an HARB requirement in a secret, undocumented ex parte manner out of the public eye. Attorney Coffey is also wrong in stating the HARB has no legal basis to challenge the decision. The Sunshine Law stipulates "any citizen" can seek an injunction in the circuit court against a municipal decision. It may well come to that.

In my opinion, if laws have been violated, the developer has a vested interest in getting matters straight so as not to jeopardize the future claim for a tax credit. It is also my opinion that David Coffey should consider the possibility his developer role points to a potential conflict of interest. If so, he should either recuse himself from all development matters before the City Commission, or even consider resigning as the city attorney.

Citizens of Cedar Key need to take note of and become informed about the development process in the heart of our historic city. The development will have impact on all of us for decades to come. It is imperative it be done right so no unpleasant surprises surface in the future. In closing, there is some old military administrative guidance our City Commission should consider; "Find the order, read the order, follow the order."

Robert Whitener