HomeMy Public PortalAbout07-08-2004 Special Session
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272
Minutes
July 8. 2004 SpeclaI Meeti"ll
Page 1 of3
Minutes Approved: September 13, 2004
Town
of
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MINUTES
SPECIAL TOWN BOARD MEETING
July 8, 2004
PRESENT:
PUBLIC:
STAFF:
Mayor Joe Phelps, Frances Dancy, Mike Gering, Eric Hallman, Brian Lowen, Evelyn Lloyd
Andrea Shapiro, Brenda Bryant, Bill Crowther, Paul Newton, Donna Gaster
Demetric Potts, Bob Hornik, and Margaret Hauth
Mayor Phelps called the meeting to order at 7:34 PM. He asked for additions to the agenda. Commissioner
Gering asked to receive an update on other lawsuits if the Board moved into a Closed Session.
Mayor Phelps asked that Commissioners Lowen and Hallman indicate their stand on the Corbinton
Commons project, since they were not on the Board when the vote was taken. He asked them to indicate the
reasoning for their opinion as well. Commissioner Hallman said that the decision about the lawsuit is not
about the project for him, it's about whether the Town believes it followed its rules and defending the
decision and procedures. Commissioner Lowen said he likely would have supported the project if he had
been on the Board and was very interested in Carillon locating on the site. He said he hesitated to comment
on how to proceed. Mayor Phelps said he was interested to see if any Board members were interested in
negotiating with the owner, as they have been asked to. He added that he would like the members to indicate
their support or opposition for the project before voting on the next legal step, which might be considered by
the judge. Hornik said that the Court of Appeals is only supposed to consider the information in the written
record of the case, not new information or opinions of the parties.
Commissioner Gering said that he sees the decision as one of defending the Town against an injustice. He
said he thinks the members all agree that the judge's decision was unjust and the Town followed the proper
steps and processes in considering the request. He said not filing the appeal would indicate that the Board's
original process was flawed and not worth defending. Commissioner Lloyd said she agreed with Hallman
and Gering.
The members discussed the proper time to move the discussion to a Closed Session. Hornik said that there
is no legal requirement that any discussion be "Closed", but that discussions regarding lawsuits are one
allowable topic. He added that discussions about strategies, new information, and other sensitive topics
should be covered in a Closed Session. The members discussed whether the decision to defend the lawsuit
was by an actual vote of the Board and discussed how the actual votes on Corbinton were made. Mayor
Phelps asked for copies of the signed judge's orders and Hornik distributed them. The members took time to
read the documents.
Commissioner Lowen said he understands the position of Commissioners Hallman and Gering and he
understood Mayor Phelps' concern about risk and cost of processing the appeal. Commissioner Gering said
he agrees with Hornik's assessment of very limited risk. Hornik said that since Coleman has discussed
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273
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July 8. 2004 Special Meeting
Page 2 of 3
Minutes Approved: September 13. 2004
further litigation, he expects Coleman to file further lawsuits. He added that he has discussed the issue with
Mike Brough and they agree that Coleman's chances for success are very minimal.
Mayor Phelps asked if the Town's insurance would definitely pay for any damages potentially awarded by
the court. Hornik said he has not reviewed our policy specifically, but yes, in his experience, the insurance
would pay. Mayor Phelps said there is still a cost to the Town for Hornik's time up until the insurance
attorneys take over and Hornik confirmed that. Mayor Phelps said he is still concerned about risk. The
Town was aware of the time constraint for licensed assisted living; he asked if the judge could force the
Town to accept an unlicensed facility. Hornik said that there is no certainty in court. He said that he and
Brough agree that Coleman can't meet the required findings for a claim of interference by the Town in the
contract between Coleman and Carillon. He and Brough think Coleman would have to file a takings claim
instead. He said the standard for takings is that no economically viable use is left to the property beyond the
purchase price. Hornik noted that the site would still be zoned R-20 and would be profitable if developed
under that zoning. He said he and Brough don't see a takings claim being viable.
Mayor Phelps asked for confIrmation on the next steps. Hornik said the court of appeals is a three judge
panel. If Coleman sues, the case will be heard in Orange County with a jury. Mayor Phelps asked Hornik to
confirm that Judge Barber's ruling had been a surprise. Hornik said it was. He said there is no certainty in
the courtroom and that is one reason parties settle out of court. A settlement is certain, even ifboth sides are
not fully content with the outcome. Mayor Phelps asked the Board if there was another course they would
prefer. Hornik added that the filing of the notice to appeal does not commit the Town to file the appeal and
would not foreclose any discussions the Board wants to enter.
Upon a motion by Commissioner Gering, seconded by Commissioner Dancy, the Board moved to go into
Closed Session as authorized by North Carolina General Statute Section 143-318.l1.(aX3)toconsultwith
Town Attorney concerning the position to be taken on behalf of the Town regarding Corbinton Commons by
a vote of 5-0. The motion was declared passed.
Upon returning to Open Session and upon a motion by Commissioner Gering, seconded by Commissioner
Hallman, the Board moved to pursue the motion of reconsideration in the Corbinton case in light of the new
evidence by a vote of 4-1 with Commissioners Gering, Hallman, Lloyd, and Lowen voting Aye, and
Commissioner Dancy voting Nay. The motion was declared passed.
Commissioner Gering moved to pursue an appeal of the judge's ruling in the Corbinton Commons case.
Commissioner Hallman seconded the motion and asked the members to make this decision unanimous.
Commissioner Gering thanked Mayor Phelps for his important questions which helped Commissioner
Gering confirm his opinion. The motion received a 3-2 vote with Commissioners Gering, Hallman, and
Lloyd voting Aye, and Commissioners Dancy and Lowen voting Nay. The motion was declared passed.
Commissioner Dancy said she would like to change her vote on the motion to reconsider since she thought
that was the motion on the appeal.
Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to
reconsider the vote on pursuing the motion to reconsider in the Corbinton Case by a vote of 5-0. The motion
was declared passed.
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Minutes Approved: September 13, 2004
Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to pursue
the motion of reconsideration in the Corbinton case in light of the new evidence by a vote of 5-0. The
motion was declared passed.
Mayor Phelps asked if the Board was interested in pursuing a discussion with Coleman. Commissioner
Lowen said that was his preference rather than pursuing the appeal. Mayor Phelps asked if individual
members could approach Coleman. Hornik advised that any member who decided to do that, clearly
represent to Coleman that they were not speaking for the Board.
Mayor Phelps adjourned the meeting at 8:53 PM.
Respectfully submitted,
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