Loading...
HomeMy Public PortalAbout07-08-2004 Special Session . . . 272 Minutes July 8. 2004 SpeclaI Meeti"ll Page 1 of3 Minutes Approved: September 13, 2004 Town of Hll!,~ 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 1 . . . 273 Minutes 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. 2 . . . 274 Minutes July 8, 2004 Special Meeling Page 3 of 3 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, 3