‘Law review’
Legal Issues Highlight City Commission Meeting
By Bari Auerbach

From initiating the hiring process for a new City Attorney – to a landmark eminent domain court ruling plus zoning matters requiring commissioners to serve in a quasi-judicial capacity, a litany of “legal issues” highlighted the April 14 Sunny Isles Beach City Commission meeting.

City Attorney Search
Following the announcement that City Attorney Lynn Dannheisser is resigning to join a private practice, the Commission voted in favor or creating a committee to recommend candidates to fill the position.

“The procedure is to form a panel of experts [Sunny Isles Beach City Manger Christopher Russo, resident business people and city attorneys from other municipalities] who will review [qualified] candidates,” Mayor Norman Edelcup explained. The Mayor later noted that he along with Russo and Dannheisser would be choosing City Attorney selection panel members subject to the approval of fellow commission members. He also said (as of April 14) George “Bud” Scholl was one of the resident business people slated to serve on the selection panel.

“The City Attorney position is being advertised - and then the panel will make a recommendation to the Commission as to their top choices,” Edelcup said. Subsequently, the Commission will meet with the candidates and select a person to be the new City Attorney. A 30 to 60 day time frame was proposed for conducting the interviews.

New Assistant City Attorney
With Sunny Isles Beach Deputy City Attorney Hans Ottinot moving on to become North Miami’s new City Attorney, the “right person” to take on the job is newly hired Erica Wright – formerly Assistant Attorney for the City of Miami.

Born in Colorado Springs, Wright started with the City of Miami Attorney’s Office in 1999 and was assigned to the General Commercial Division handling contracts and other general business matters. Prior to becoming an Assistant City Attorney, she worked in private practice. A graduate of the University Miami School of Law, Wright is a member of the Dade County Bar Association, Young Lawyers Association and has served on the Board of Directors for the UM School of Law and Black Lawyers Association.

‘Fond Farewell’
During the April 14 City Commission meting, Ottinot was recognized for “dedicated service and professional contributions” while serving as Deputy City Attorney for the past five years.

“I can’t tell you how much working with Hans has meant to me – not only on a professional level but on a personal level the relationship has been like a ‘hand and glove’ with the beneficiaries being the City Commission and people of Sunny Isles Beach,” Dannheisser said.

Commission members also commended Ottinot for a job well done, wishing him future success as he prepares to take on the role of North Miami City Attorney. “Remember the name ‘Hans Ottinot’- he’s going to be a superstar,” Commissioner Danny Iglesias said

Expressing his appreciation to the City of Sunny Isles Beach, Ottinot said, “I’d like to thank Lynn [Dannheisser] for hiring me; the Mayor and City Commission for supporting me; the City Manager [Christopher Russo] for trusting me; as well as Chief Maas and city staff members I’ve [enjoyed] working with.”

‘Law of the Land’
A recent ruling by a Miami-Dade County Circuit Court Judge paved the way for Sunny Isles Beach to acquire an acre of property located on the north side of the Government Center building through eminent domain proceedings – and now, to avoid further litigation, the city is entering into a lease agreement with Vanguard Car Rental USA Inc.

“As a matter of background, the City of Sunny Isles Beach was awarded fee simple title of the property located at 18080 Collins Avenue - commonly referred to as the ‘Alamo site’ by the Circuit Court,” explained City Attorney Lynn Dannheisser.

“As a condition of requiring fee simple title, the city is required to provide just compensation to the property owner [Raanan Katz of RK Associates] which ultimately will be decided by the court. Presently, the court has requested the city make a deposit in the amount of two million two-hundred fifty thousands dollars, which was the amount of the last appraisal, into the registry of the court…and we’ve complied with that request.

“In addition to compensating the property owner, the City is required by law to compensate the tenant on the property (Vanguard Car Rental USA) for that portion of the property presently under the lease that will now be used by the City for its lease hold interest - agreed by the parties to be $450,000.

“During the eminent domain proceedings, the City and Vanguard were able to settle all claims that Vanguard may have against the City with respect to its lease hold interests. More importantly the city and Vanguard were able to resolve potential claims that may have been an impediment to the acquisition of the property by the City.

“Under the terms of the settlement, the City and Vanguard have agreed to amend the existing twelve-year lease Vanguard has with the previous owner. Per the proposed amended lease, the city has agreed to take over fifty percent of the property upon acquisition…essentially - the City would have exclusive use of the west side of the property while Vanguard will have exclusive use of the east side of the property for a period of four years - unless the parties agree to terminate in the fourth year.

“Upon acquiring the use of fifty percent of the property, the City has agreed to pay Vanguard $180,000 of the $450,000 lease hold interest for the use of the east side of the property. Vanguard is required to pay rent to the city reduced by fifty percent for the remaining term of the lease - until the lease hold interest is reduced to zero.

“At this point, an appeal has been filed by the ex-property owner (RK Associates). As a result of that - Vanguard and the City have agreed the City will not [use] fifty percent of the western portion [of the land] until the appeal is finally ruled upon. Immediately thereafter, the city will follow through on its partial taking subject to all the terms and conditions set forth in the addendum.” According to Dannheisser, the city intends to utilize the land as a centralized place for storage of buses and city vehicles utilized by the Public Works Department.

‘Quasi-Judicial Law Review’
On April 14, the City Commission approved the site plan for a proposed six-story, 17-unit condominium slated for the west side of Collins Avenue at 179th Drive while serving in a quasi-judicial capacity. “’Quasi-judicial’ means [Commission members] act as a judge - similar to the judges in the Dade County Courthouse when they hear a case…and there are standards of evidence that have to be met,” City Attorney Lynn Dannheisser has explained.

Elaborating on the ramifications of serving in a quasi-judicial capacity, Dannheisser said, “Like every judge in the courthouse, judges are not entitled to receive communications from either the plaintiff or defendant without both parties being present and without the matter being noticed…Therefore, any communications from the applicant would be improper unless that communication occurred in the presence of the public or any objectors…And likewise, it would be improper for the Commission to receive any communications from an objector or someone who has something to say about it and needs to present evidence.

Recognizing Commissions are slightly different from judges, the Legislature passed a law that said, ‘Every city can adopt an ordinance which would set forth a procedure to be followed such that if any communications are made on a zoning matter inadvertently, it can be disclosed and therefore shield both the Commission and the parties…The applicant [is specifically shielded] from having their application, if granted overturned.”

Why zoning proceedings are ‘judicial’
“ I would like to explain just how ‘judicial’ a zoning procedure is,” Dannheisser said. “When listening to a zoning matter, [commissioners are] listening for the evidence and record that’s being created…The point is, whether you realize it or not, [as a Commission], you’re taking evidence, you’re listening to evidence - and ultimately it is that evidence that will either be able to sustain your decision one way or the other in the appellate courts,” Dannheisser said. “So in essence, [certain zoning issues] are judicial proceeding and as such, [the Commission] really needs to avoid communications from either neighbors, citizens of the community or applicants.

“ [City] staff can communicate with [the Commission and the public]…Normally when there is no communication beforehand from an applicant [or the public] trying to sway [the Commission’s] opinion, staff will just give you their report as to whether or not this application meets code requirements and issues you need to listen to evidence for. [Staff] will not lobby you.

“In the past, when there has been communications, it has been necessary for [staff] at times to counteract this information you may have received. But if there are no communications we’re not put in that position and we can be just completely neutral when giving you staff recommendations…and then the decision is left up to you.”

‘No Law Against Celebrating’
Before the April 14 City Commission meeting concluded, Mayor Norman Edelcup noted, “The City’s birthday [since incorporating in 1997] occurs in June of every year and I would like to propose we celebrate annually on the third Saturday of the month of June with a fireworks display in lieu of having it on the fourth of July…We’ll have to wait and see where the best location in the city is for the party based on [recommendations] from the fireworks company.

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