City Commission - Regular Meeting

Good evening, everyone, or good afternoon, or whatever we are, for the special meeting of the Delray Beach City Commission this Wednesday, February 18. If the clerk would kindly call the roll.

Mayor Thomas? Here. Deputy vice mayor Burns? Here. Commissioner Markert? Here. Commissioner Cassell? Here.

Great. We have a quorum. The the purpose of this meeting is we are going

to be

discussing the situation with the banyan tree out at the golf club. We're starting off with public comments. I'm asking the members of the public to come up to the the lectern. You'll each have they get three minutes, do they? Three minutes. But the shorter you keep it, the more likely I am to agree with whatever you're saying. So you will each have three minutes. So public comment, if you if you wish to public comment.

And and mayor, I just wanna disclose. I have to leave at 06:15 because I'm teaching a class We

better be

at American Heritage. We better

be done way before 06:15.

I've got 65 high school kids waiting for me We

better be done way before 06:15.

Eleven minutes and they get to leave. You might wanna give them a break.

Jim Chard, Delray Beach 33483. Good evening, commissioners.

Hello. Staff.

Oddly enough, I'm here to talk about the tree, and I I think that a lot has already been said, but there's a couple of things. I've I've consulted with some arborists who make make a case that it's entirely possible that removing the tree causes more damage to the bank than leaving it there. And in fact, the root structure is such that it enforces the integrity of the of the canal bank, along with a lot of other benefits as well. And a number of comments have been made that I think have been made without a lot of knowledge. I mean, is that the tree is invasive.

Well, it can't re in in The United States, it can't repopulate it. It doesn't have the the wasps that's necessary to pollinate the flower to cause the fruit. So when they talk about it being invasive, they mean it grows and that's it's that's it's real benefit is that it is big and it is is special. So to say that it is invasive, think is technically incorrect. And by the way, that growth can be directed through a number of different ways.

So if it it's not going to stop growing in the next hundred years, but we can direct where that growth goes and that can be, if we wish, away from it now. The other argument that I've heard is it's not a native. And somebody said, well, none of the New Yorkers are natives either.

Do you suggest we get rid of them too?

We're planted deeply here now. It's certainly a Florida friendly tree and it is one of the people who is pushing for Florida wild plants and and natives. We I realized that quite often you have to recognize that some plants are just not native, but we still need them for one reason or another. And what happens is when the entire ecology becomes non native and doesn't support wildlife, then you have a problem. This tree supports wildlife.

It will not repopulate. It will most likely hold that bank for another seventy years at least, and we should do everything in our power to maintain to expect it to do that. Thank you.

Thank you very much. Are there any other members of the public wishing to speak? Okay. Seeing one.

Hi. I wasn't planning on saying anything.

Name of ZIP code for the record, please.

Gail Clark. 33483, Delray Beach. It's always something. It seems like it's sea grapes, trees, mangroves. This whole situation reminds me of what the definition of a weed is. This tree, we didn't know it was there for seventy years. And why we know it's there is because we tore down every other tree in the area and all of a sudden discovered it. And the definition of weed is a plant that's going somewhere and you don't want it. And now all of a sudden, this is there where it's been all this time and where some people don't want it. And I think it's a shame, fortunately, I have been able to talk to a gentleman.

I think some of you are talking with him who's an arborist who's completely made a case more technically that Jim has. I know he's been speaking with him that, the same thing that keeping the tree, learning how to mitigate risk with it, how to take care of it, keep an eye on it is, a way to save it. And and also, if you consult with the forestry service, it could be considered a legacy tree. If a tree is the largest tree in the neighborhood, the area, the city, the state, a county, it could be deemed a legacy tree that is something basically to be saved and honored rather than destroyed. So I think that there's some more things that we need to know about the tree and how we can take care of it, how we can manage it, what it might mean to us rather than making it something joyful, rather than letting people that don't even live here create a death sentence for the tree.

Just my opinion.

Thank you very much. Any other members of the public wishing to speak on this? Public comment is closed. We're not gonna get into discussion regarding the Banyan tree. You know, the genesis of this was really the the the the Lake Worth drainage district concluded at a at a recent meeting that we needed to cut this tree down in thirty days. Now, you know, I've read part I've heard parts of the meeting and parts of the stuff, and I've I've ordered the full transcript. But the city really never got a chance. And and and when you look at the notice, it was described as a discussion item. Wasn't really an action item I didn't see on the agenda. So I don't think the city understood it was going to be an action item.

And I really think if you're going to have a public hearing in in the form of a quasi judicial hearing for a variance, that your notice should so state. And I don't believe that so I don't believe they met that. But even if they did, the arguments that were being used to get, you know, to that to to the tree should be cut down really made no sense. You know, when they talk about having a tree, where, you know, a storm could come and blow this tree down. Okay.

Now the tree's been there for a long time. It's weathered Irma, Francis, Charlie, goat, know, what you name all the storms, it is it's weathered. And it has done so because it has a real really well embedded root system. So embedded so embedded that they didn't even know it was one tree. These were essentially branches coming out of this tree, of this root system.

I'm not done. Coming out of this root system. So it is so embedded that the if if if a storm did cause this tree to to go into the into the into the waterway, it wouldn't be because of this the the storm would have to be so great. We that would mean we would be being hit with a category five or category six storm. The flooding, the least of the flooding problems are going to be created by this tree.

It would be a region wide disaster where we would be having water, the water event, you know, rising, you know, the tidal tidal issues, everything. So to say that this tree, because it could get knocked over in a storm, somehow it's gonna create a a a catastrophic event, makes zero sense because it survived all of these times. The arborists that I spoke with all feel that this tree can be preserved. And like New Yorkers who I like coming here, I wanna keep this tree here too because it's 78 years old. The least we could do is to treat see if we could save it.

Now, yes, does it encroach on their property? Clearly. There is an agreement out there, by the way, before any of our times, that essentially says that the Lake Worth drainage district come in with ninety days notice and have us remove the tree. Notwithstanding, by way, what went on in the meeting the other day, which was, by the way, nobody up here even knew about that agreement until this morning. So there's a lot out there. And by the way, when that agreement was done, just like this last meeting, the city of Delray never really had an opportunity to present what I consider competent evidence. You know, when we all sit up here and people are doing variances, they come with their experts. And they get they sit, we listen, we say, yeah, we agree or we don't agree. We never had that chance. The least they could do is to let us have a chance.

So my view is and I'm gonna turn this over to mister Moore because he wants to kind of give a history of how we got here. But we do have some options at this point to to at least get our case heard. And this is where I'm trying to go. And I've discussed it with the city attorney earlier today. And she provided me this book of all the agreements which we have in place.

There's a series of four different amendments that we have with this agreement. And again, I don't want to say the heavy handedness of the Lake Worth Drainage District. You know, we we really were we we we were never really in the game, and they just really dictated terms. I don't believe that that's proper. I believe we we have just as much right to see if we can save that tree as they do to say it should be cut down. So that's where I'm trying to go. That's why I called this special meeting.

Ask a question?

Certainly. Is

my understanding is the tree is on their property, though.

It is partially on the it encroaches. Yeah.

90% of it's on their property. So it's technically technically their their tree. Correct?

I I

mean, if it's their tree on their property

We're that we're gonna see we're gonna see where we're gonna see where that goes. Because even if it were on their property, it's still, do do think, falls under the legacy aspects too. There are a lot of reasons that we have not explored as to whether we wanna save this tree or not.

I don't disagree with you. Everybody wants to save the tree, but as we sit here today, there's two things we know. Right? One, it's on their property, which they have property rights on their property. And I can tell I tested that. I live on a a canal, and they came in and took out my tree because it was two inches over. No question. Get get rid of it. But also this I'd like to know if this in this original encroachment licensing license agreement entered into by the city in Lake Worth drainage in 1994, the line in it that says Delray Beach shall be responsible for the payment of the reasonable of the reasonable attorney fees incurred by or arising out of Yep.

Certainly does say that.

Hang on. The district entering into and enforcing the agreement. Now the question to this is, within that agreement, we agreed to remove that tree. Is that correct?

Well, let me let me just let you get yeah. Yeah. Yeah. I wanna I'd like mister Moore to speak.

But wait. These are important things for people to understand.

Agreed. And under a legal analysis, which I have done, you know, the whole question is whether or not the contract was properly entered in to begin with. I I'm I'm I'm taking the position that we never had the opportunity to fully we were we were unequal partners going into this contract.

It was executed in 1994 with four amendments. Are you going to go back to litigate that this

was not fair contract? I read it. I read it.

But, I mean, we are you're I mean, I'm just saying to you, this this is what I You

know, I'm I'm trying to move forward with a positive here. If I

know if

you wanna negative about why we can't do things,

we can do to have a rational discussion

that is you're for first saying why we can't do it. Please.

I'm I'm you're

out okay. I'm I'm taking the

out of order. You're taking the floor back again. Mister Moore. Okay. Thank you.

You're up. Thank you. So my interest is to offer a brief staff summary in terms of why we are in this place, and the genesis of it was Tuesday, 01/06/2026, a month and a half ago in which there was no agenda item to this effect formally. However, staff and I had an opportunity to discuss the status of the golf course renovation program, the clearing activities, etcetera, and we then decided to offer a brief update to the city commission. It was via five a of that particular agenda, and again, it was not a formal agenda item.

It was the something I decided that we should share with the city commission because, of course, it was brought to our attention that this large banyan tree existed on the general site. So in the process of the initial clearing of Derry Beach Municipal Golf Course as a function of the renovation program, we, of course, came across the banyan tree and, of course, since that time we learned about the associated agreements with the Lake Worth Drainage District and to the point of the coverage area there had been estimates communicated since then that it represents about 90% of their footprint Not to mention the piece relative to indemnification and other particulars that would obligate the city of Delray Beach to be financially responsible for any legal expenses associated with considerations to this effect. Obviously, not just only the city of Delray Beaches, but the that of the Lake Worth drainage districts as well. So to help address the question that was raised here at the dais, I thought I'll offer that background and clarification. During the January 6 presentation, we talked a little bit briefly about the process of working with the Lake Worth trainers districts to secure permits for the golf course renovation itself and this was revealed in that particular process to go forward and myself working closely with staff, we thought to ourselves, well, hey, if there's an opportunity to save this tree, we can take a look at it.

We talked about the merits of that particular consideration January 6 and everybody said okay. Staff, in addition to golf course contractors, talked about the idea of, if at all possible, we can make this opportunity available. If we could make the banyan tree part of the renovation renovation program and keep it on-site, that would be fantastic because of course, with the clearing of the golf course as part of the renovation, it does include the planting of roughly 845 new additional trees. In addition addition to all the good work associated with the renovation program, it does include 845 new native trees on the golf course as part of the renovation program. But again, our interest January 6 was to offer a brief update, wasn't initially planned, was not a formal agenda item, but to bring to the city commission's attention the potential opportunity we made available.

In hindsight, perhaps more could have been ascertain the history of the Lake Worth Drainage Districts and their illustrious history of not allowing or issuing permits for the preservation of banyan trees or any other form of vegetation that is part of their footprint, part of their right of way, part of their property, etcetera. That has never been accomplished in this regard and as far as last week's meeting, there was not a special hearing to address this particular consideration. It was really a function of their regular board meeting which takes place every second Wednesday of each month, right outside the Delray Beach corporate limits in which their office is located. So this was a regular board meeting agenda item in which they addressed this particular topic and again, a lot of due diligence was facilitated in preparation for that discussion as well as in the aftermath to include clarification regarding the provisions of the associated agreements in kind. In conclusion, I wish for the commission and the public to please understand and embrace that the philosophy of the city of Delray Beach and the staff is, if there's any time an opportunity exists to preserve a tree, save whatever we can, we take every effort to do so.

This was a arduous consideration, an arduous request because as it turns out, Lake Worth drainage districts has never in known history granted such an authorization. Although the opportunity to be heard via their regular meeting had been made available 02/11/2026 as we discussed the subject publicly 01/06/2026, we simply made an effort to do what we can. So I'm actually very proud of the fact that we made an effort in this regard. However, we must recognize recognize the realities of why we are where we are and in many respects, that is very unfortunate. The good news moving forward is the scope of the renovation does include 845 new native trees to be part of renovation program and we look forward to implementing that as we move forward.

Nevertheless, an arduous request, very challenging. Nevertheless, we gave a tremendous effort to get to that place and we did discuss it with the commission publicly once we learned about the remote possibility, and I emphasize it is a remote possibility. Nevertheless, there were some inconveniences pursuing this particular consideration. Nevertheless, very proud of our efforts, And quite frankly, think you all should be as well.

Thank you.

Thank you. I want to just mention one thing. And this is because, I mean, I've read the provisions of the contract. When a contract is drafted in such a way as to essentially say that we get to whatever we do, you have to pay us the legal fees without a prevailing party condition, these are very onerous. Courts have viewed these kinds of things as very one-sided and onerous.

We we are not without some argument here as a municipality to try to preserve this tree. I wanna see what we can do to save the tree. I understand what the contract says. I happen to think that these are so one-sided as to be unconscionable in certain provisions. We can argue the point. But when you have a when your when you when your legal thing says, essentially, if you challenge something, even if you're right, even if you're right, there's no prevailing party. You have to pay our attorney's fees. I gotta tell you, we're a municipality. No, we don't.

Well, we agreed to that.

I know what We signed. What was agreed to. But this is not the first contract that's been looked at and then thrown out because it's it's it's it has unfair terms. So, I mean, it happens not frequently, but not infrequently either. So

Does the city attorney want to speak to that? Because you are

I'm gonna thank you. Will get to the city attorney if you want to be recognized. Would you like to you and I have spoken about this

We did.

A number of times here.

So Do you want me to respond?

Please do.

So I I understand what you're saying, mayor, but there's a there's a couple of things. Number one, this agreement has been in place since 1994.

Mhmm.

So it with four different amendments. It's hard to say now when we're challenging something that was agreed upon to say that it's unconscionable because candidly, we had counsel that approved the form and sufficiency of this agreement. You know, I I don't know if I would go so far as to say that the term is unconscionable. It's it's not usual. We don't typically have these types of terms in a contract.

It's usually, like you said, prevailing party or everybody pays their own. So, it is an unusual term that you don't see, but I think I would be very hard pressed to go to court and challenge an agreement that was executed the year I graduated high school and now saying that, you know, certain portions of it are unconscionable. I think we would have a very hard time challenging that. While I understand the frustration with the hearing before the Lake Worth Drainage District and I do agree with you that it was listed as a discussion item. They did put backup materials in there.

Candidly, they didn't even need to put this on their agenda. They simply could have given the city ninety days written notice that they wanted us to remove the tree and it would have been at our expense because that was what was agreed upon back in 1994. So I think a lot of what went on, you know, the other side of it is that from my understanding and as you know, I wasn't at the hearing and my attorneys weren't at the hearing. However, there was some concern about what kind of language could be drafted that would properly indemnify the Lake Worth Drainage District if in fact they wanted to let us keep the tree. And if you read these agreements, there is pretty significant language that basically, you know, they're an additional insured on our insurance, you know, where sovereign immunity applies.

So there's language in there that if I had you know, if we had had that, that argument could have very well have been made to say, we appreciate your concerns, but back in 1994, that was a concern and in fact, it was written into the contract. So, I, you know, it's unfortunate that there was an opportunity to be heard and I think that probably could have done a better job. You know, I don't know if it would have made a difference though. It may not have made a difference. At the end of the day, there's contractually binding agreement that says that or term that says that if they tell tell us to remove the tree from their property, we have to comply and we have ninety days to do so.

In fact, if we don't comply and they're forced to enforce this agreement either in court or any other way, our taxpayers are gonna be responsible for that. So I I think it's it's it's challenging and,

you know And how do you argue with this report that they produced in February 2026? But back to the questions I was asking. City attorney, the tree is not on our property. It is on their property. Correct? We went to this hearing and we offered to assume liability in exchange for keeping it, and they said no. Is that correct? Right. According to the agenda item,

we sought authorization to allow the Banyan tree

to remain. So, yes. Right. And so and then now when we, one, have this report that shows risks, potential damage, and and all that we could assume. And we are willing to assume a lot now that I'm reading this report. I probably should have seen this report before we had that discussion to go even even make that offer. But we've done a lot in our effort to save the tree, sometimes but you have to say, it's not our tree. They it's their property. It's their property rights. I don't understand what we're going to fight.

Even if we get an arborist who says it's not a problem, they're not going to go and take the report that they paid an expert to do and say, you're right. This report is inaccurate and we accept what you're saying. They're not going to do that and we know that. And then you pile on the fact that if I'm reading this correctly, if we go and fight this, we are accepting responsibility for their legal fees. I cannot see any scenario in this state or any other where people have very obvious property rights that we are going to overcome their right to do with what they want on their property.

I can't if you, mayor, can find me a case where anyone has been successful, I may think it's okay to try this, but I there's no such case in this state that I'm aware of. We couldn't stop them from taking that beautiful Banyan down in Palm Trail, that gorgeous property. I think it was on this Stom was developing and everybody in that neighborhood wanted to protect that tree and we could do nothing because it's it's private property. And, you know, I think there's a misconception in the public that we own this tree. We don't own it.

We just said, when the time comes that we remodel, we will take it down. That doesn't mean we own it. That just means we obligated ourselves to that condition in the past. So I I'm trying to understand what you think we can do and accomplish here.

I guess what I'm saying is and I looked at this report too. And these are snapshots of saying when you have the uplifting winds and you have all this other kind of stuff, what they are saying is that we would be hit with some catastrophic storm, level five or level six, that would take this tree down. And my argument is this tree falling into the canal will be the least of this community's problems if we get hit with a category five or a category six storm, and they know that. And we didn't have the opportunity because it was really I don't think we knew it was going to be kind of an evidentiary hearing to go in there. We thought it was a discussion point, which is what the agenda said.

And we didn't really have time to present any arguments such as, sure, this tree may go into the canal. You're going to have about another 500 trees going into the canal. You're going to have you're going have the flooding because of all the rains. You're going to have the storm surge. You're going to this so that to to say that this is the this is the going to be the big problem as a result of of of when it when it falls in. When you look at that root system, it's not falling in anywhere.

They're saying a category three plus could do it.

We've had category threes and category fours that we treat and

category it doesn't require a category five. They're saying category three plus and this

Yeah. I understand that which we didn't challenge.

But Can I can I jump in on that? I I can't sit here quiet anymore. There were two people that went to that meeting a week ago that took time out of their personal busy schedules to attend, myself and missy Barletto. We were the only two representatives from Delray Beach that cared enough about that tree at that moment to get up and go over there and spend a lot of time there. And that's just a fact. Mayor, you called me a failure in your goofy newsletter that you put out, that you wrote or your handlers wrote. Somebody put it.

I did not first of I did

You referred to me as a failure. And and I, sir, I I I think that's one of the more despicable things that's been said to me, and I'm surprised that Alright. Well, first of I can't I don't I haven't read it.

Well, you're showing me if something you you

I mean, you're gonna accuse somebody. Have some facts. I haven't even read the bloody thing you're talking about, but

go ahead. Tell me what you you It's your news and ask for the truth.

You didn't read your newsletter.

And ask for the truth.

Stop my news. You didn't read your

my newsletter comes out, and my name is on it. What who who is it?

Who are you talking about?

Yeah. Mhmm. Who?

It comes from

your home address. It came from your address.

This is

I mean, come on. You didn't even mayor, did not even go to the meeting at Lake Worth. You did not show up. You were late to the party. And I will forgive you for even calling me a failure because I want this tree saved. I know you do. That's what I want. You don't care all that much because you couldn't make time out of your schedule I I was to go to the meeting when they were discussing this.

Okay.

And, sir, you already admitted you didn't listen to the whole meeting. I sat there with Missy, and we listened to the meeting. They made some very salient points. Sure. I And we should not be at odds with them. We should be trying to work with them, which is how the administration should work. We shouldn't be angry. We should be trying to find a mutual solution that works. Well, I'm angry. And jamming something down their throat

I'm angry.

Isn't gonna work.

I'm not trying to jam anything.

Can you stop talking I am trying to You're the mayor. Can you control the meeting? I have the floor. If you wanna shut me up, bang me out and I'll go.

You're accusing me of things. That that's fine. Going. Accusing you of things? You you sure. Keep going.

Keep going. Bury yourself. Go ahead. Bury yourself? No. No. I'm just saying.

You're saying I've done all these things with great I don't know what you're saying. You do know. First of all,

we didn't have notice of I did not

have notice of the meeting. I'm glad you did. I wish I had.

Well, it it was on your schedule. Because I Pay attention, my man.

It was on my schedule?

You know it was. It was on everybody's schedule. It was a it was a meeting we were all supposed to go at. Well Two people showed up. Missy and I showed Unfortunately I know. You're too busy.

Unfortunately, the city attorney's office was was unaware of it. So let me default on that one. Others others were unaware of it. Of course. I'm not suggesting that it that you weren't aware of it. I do think the entire city commission, because I had already met with arborist since the January meeting, to try to see what we could do about anchoring and things such as that. So I don't know if the result would have been any different. You that by the way, it's not my newsletter, so I don't really I'm not even going to humor that one.

Then you've been hacked because it's coming from your address. I'm sure it's not. But, I mean, I'm sure you've been hacked.

When was I I don't I It doesn't matter. You know, the point the point is the point is I wanna try to figure out a way to save this tree.

Could you get to that? That's that is the point. So how what is your proposal?

Whether it's worth to try to do some kind of a preliminary injunction.

Oh, legally? No. There's no way you're going to get that.

You know that. You're a lawyer. Think city attorney, the the way a preliminary injunction works is it says that if they go through with what they have, it is an irreversible situation. If they cut this tree down, that's now irreversible. Preliminary injunctions are issued in order to preserve a status quo until such time as you determine who's got what rights.

But then you're talking about a preliminary injunction and additional litigation, though. You're not just talking about an injunction.

Right now, I'm talking about an injunction for us

go The injunction is

to have the sorry. I I I'm order hasn't been written yet. But but

Could the city attorney speak to this?

But, no. You know, I This

is taxpayer money you're talking about spending here.

Yeah.

So I just am curious if the city attorney and I'm I'm my takeaway from mister Moore's comments city attorney, I mean, this is their tree on their property. I don't know what what do you do if you get an injunction? Say they say to you, okay. We're gonna give you the injunction. Then you have to go present a case

Correct.

Why you have rights over the tree on their property. No. How are you going to

do that?

Why the tree why the tree has has particular merits to it, why it should why it is not a danger to the drainage to the the flooding system. I don't see why the tree should be preserved under some legacy under some legacy rules. And I I think that the Lakewood drainage system even responds to public opinion.

But they have an engineer's report. You're going to have

a Right. They have an engineer's report that says if you got a category three storm, it's gonna it's gonna wreck the entire ecosystem of South I

mean, I don't even know that you've read the report, which concerns me. We're not fighting their engineer. Report.

But do you know fighting their engineer.

But since you didn't go to the meeting Yes. That I went to Yeah. Do you do can you just articulate what happens if we get a storm and that tree falls into the the water? Right. A storm of the a category five or category six? Well, whatever category

Oh, no. No. It does matters.

It's if

we ever see a cat catastrophic storm Yeah. It this tree is gonna be the least of the problem because the flooding is gonna be massive. We're gonna have storm surge. We're gonna have the intercoastal coming up. We're have

a lot of

different stuff. It's not it's not just this they're trying to make it look like this tree is the is gonna be the the cause of of a of a flooding problem in the western part of the county.

You still didn't answer my question.

I did answer your question.

You did. So you you have to restate your answer because I simply said, what happens if the tree falls in the water? What what then happens?

We're liable.

I'm gonna do you wanna do you wanna hear what happens? Or it's you didn't obviously watch the meeting and you didn't attend the meeting. What happens, mayor, is if that tree goes in the water and it's a big tree It is. It's gonna block the water way. It may. And it's it no. Well, okay.

Depending on how it falls. I'm not

gonna be a man. Drainage expert. I'm not. But they they they said that it will block it will block the flow of water. They will try to reroute the water, but they cannot guarantee that that can happen. That water will back up, and areas of Boynton Beach will flood.

Mhmm. Yeah. That's what that says. Yeah. I read that.

That's what they're that's that's what they're That's

what we would be accepting

liability for. That's what our taxpayers

if we had

like a millions of dollars in

life of winning

five cities. Or more. You're assuming that Boynton Beach and all that stuff that the current environment going to happen. Like a 200 wide Categories raised. Boynton Beach isn't gonna have

their own independent flooding problem? You can make up a thousand different scenarios. We're just laying out what's

in That's the point.

I mean, don't you think if there is a flooding

And what would you have done if you were in their situation?

Get back to the important issue

I would

have asked to

see if there's any mitigating stuff that we can put forth to try and and and save the tree. That's what

I want Could I You wanna get Is there any indication that there could be success in this argument? You you called an emergency meeting. I did no not know the context. Although, the newsletter that came out said you had a plan, but what what your plan is, I'm not clear.

But that's not his newsletter.

Hang on one second. One second, please. What is your plan? If we get the injunction, how what is the basis for us to be successful in court?

Did they cut that from the WPTV thing, which is where I said I had to plan?

Give me something to bite on. Wants I to save the

don't know. I don't have I

don't have an absolute answer

to it. All I know I have a great idea for today. Let's take a little time and do some research then because I didn't know

what were thirty days. We've used seven. We don't have a lot of time if we're gonna try to go a a preliminary injunction. We don't

have time.

We don't

have a preliminary injunction, you could file at midnight the night before the thirty day mark, and

you could be successful. Evidence. You have to

I think we need to what we need to do is if there is any chance we could be remotely successful, and you can show that, go do two days worth of research and send it all back to us. But as we sit here today and I did a little research, first of all, my understanding is Lake Worth drainage never changes their position. I have had a situation with them in our backyard, and I can tell you, it was surprising how inflexible the situation was. And we we the whole neighborhood got lawyers. So it was not it did not work out well.

Now the the thing is it's on their property and we have the stipulation in the agreement. What do we have in our favor? As we sit here today, what do we have in our favor? And you called this meeting, so I need something tangible because you're asking these our taxpayers

You're

assume liability and a substantial cost of their legal fees. Cause their lawyers aren't going to be cheap. They'll have 10 of them. $4.50 an hour. How many hours? $4.50 is inexpensive. They probably are seven. What can we what's our what are we bringing to the fight? What do we have to be successful? I would love to be successful. I'm sure miss Barnes would love to be successful.

I I know. I'm mister Marketwood Again

But as we say, we have nothing to fight with.

You you know, you sit there and you say what what courts will do and everything, you know. You know I guess you've never heard of a court reversing itself.

It's their property.

It's their property.

People reverse themselves when they're provided with good, competent evidence.

They reverse on the contract, then you still have the hurdle of how do you tell them what to do with their tree on their property. That's a totally separate issue. You're talking about two major hurdles.

I acknowledged at the start that I know that the tree is on their you know, a good portion of the tree is on their property.

Over 90%?

The root system, by the way, is is also portioned on their property. But there are people that will say that the bank of that that that canal would be seriously impaired by taking this tree out. So their argument about trying to preserve the the flow of water could suffer on its own by the removal of this tree because the bank will no longer

be I don't think we're going to be successful at fighting their engineer's report. I I don't I don't know.

Engineers report was so focused on, you know, the the on connecting dots which may or may not ever happen.

Right. But do you

That they assume that we get a category five storm. It's only gonna hit that tree and that's gonna be the drainage problem, that they're not gonna have the same 12 inches of rain in Boynton or the same 12 inches of rain in Boca or the same 12 inches of rain in Wellington, which they are.

But you're you're saying

Delray Okay. Worse what situation. We're gonna have the So what you're saying is you wanna

assume that risk.

I'm sorry?

You're saying you want to you're willing to assume that risk? I mean, you're talking about a scenario that could be financially catastrophic.

I think we need to

Are you saying you wanna assume that risk? Because our insurance won't assume that

risk Let for me say that we would need to we would need to craft indemnification revision. They they talked about it being difficult, which it is difficult. But if we had the right kind of indemnification revision, which also recognized that But they would have to do that. They excuse me. That under the indemnification, that if the sole and proximate cause of the damage were city of Delray Beach is what we're talking about, I am saying that the sole and proximate cause of of the flooding problems in a category five storm is not gonna be this tree falling in the water.

You cannot you're not in a position to make that comment. You're making you're taking an idea that you have, but the point is you're I'm I'm

not in that position.

You're putting risk on your residents. So assume the tree falls. Let's just assume hypothetical. How many

of these cases you've done. I

mean, I've sold the property. I'm gonna argue you're not you haven't done any of these cases. I mean, no offense, but this is a unique situation. So you take right. That you take the one issue you have. It's their tree. It's on their property. You take the second issue you have, which is the contract stating we're responsible for the legal fees. And then you take the third, which is a liability. And all of those things together are working against us. And you you can't you when

you we could craft the right indemnification provision.

They are are they going to accept it?

Don't know yet.

But why would they?

Because I think that public opinion in this particular case I know you say they don't, but, you know, they they

They already voted unanimously against it when we offered to accept liability.

Things. There's motions to reconsider. There are things that we could try to do.

Listen. If you wanna send them a letter and ask them to reconsider and say we will, you know, talk about greater indemnification, although I have to tell you something, I don't know how happy the residents are going to be out about that without us making a determination I'll I'll say fine let's do that today and then if they accept it then we need to bring it in front of the public and ask the public are you willing to accept this responsibility? Because this is taxpayer dollars. And I know you know when the insurance company, when you have a storm, they say, oh, it's flooding. We cover nothing.

Attorney would be delighted to to eliminate when I mean sole and proximate cause because if you have a major storm, it would be almost impossible for them to say that the flooding problem has to do with

the security responsibility. You know what? And then you're gonna have their expert fighting your expert. And your taxpayers are toast. So that's our job sitting up here, to figure out what's in the best interest of the taxpayers.

No, we don't know that.

I'm not an engineer. I'm not assuming that they falsified a report just to kill a $75 tree.

One one-sided report. Nobody says it's falsified.

Mean, what

you mean? What you mean? Falsified the report.

You're saying it's not a good report.

I said it's a one-sided report. That happens all the time by everybody, including people that sit in front of us. They give us a traffic study that's one-sided. Or they give this, it's one-sided. Doesn't mean it's false. It just means they were careful with the facts they chose to to illuminate.

I just think we did a we made a really monumental effort to save this tree by even saying we would assume liability. You know that's when you think about it and at the time we didn't really know what the extent of our liability When you look at this report, it's laying out what your liability is, and it's substantial. So all I'm saying to you, mayor, is I wanna do this with you.

Snapshot of that this tree is the cause of all damages and results

of something I'm

back to where I was before. You have presented nothing suggestive of any way we can be successful in this.

Well, obviously, you bought you bought into the report that if this tree

was in

into the report. Category five store

We have a contract that we signed

the county

four amendments to that contract accepting financial responsibility We for their agree that the property, if the tree is on their property, I you're tell me where we can be successful.

I I will say that the last amendment was in 2003. That the things have evolved since 2003 with respect to how these clauses are interpreted in terms of one-sided legal fees because these were designed these were the old ways where people would essentially put you in a position where you could never sue. And the courts have ruled that those I mean, we can argue, but it was '4. But the last one was 2003. That was twenty one years or twenty two years ago.

A lot has changed in twenty two years in terms of people's rights under contracts. And I'm not absolutely positive. I'm not making a determination one way or another. But I'm not absolutely positive that these kinds of clauses will be viewed in a very favorable light when you're talking about environmental issues. Right. When you're talking about these So to say that we have no ability to challenge otherwise, we'd have I'm not Those clauses are considered onerous. It's twenty two years old. I don't know what kind of representation we had. I haven't seen the file. I don't know what kind of confident evidence we put forth in getting these these agreements done. And we certainly had very little to stand on because as you say, was on their land.

Miss Samir? Right. So assume we win that case. Assume you win that part of the case. Assume we put out a couple $100,000. We we do the injunction and you win that aspect of the case, then you still have to fight to override their property rights. How could you win that?

Miss Amir yes ma'am thank you I would like for the city commissioner please be advised that time is in fact of the essence most recent staff communications last couple days or so we are on a twenty three day time clock at this point in time. So in terms of writing letters, in terms of reaching out to them in that regard, all our experiences currently indicate that there's no change in position in this regard so one week has passed we are having these discussions today and again to reiterate some of my comments earlier we made a galleon effort it was absolutely a long shot in this regard We continue to have to work with Lake Worth Drainage District relative to other final permits to support the continuation of the golf course renovation program. My interest in pointing out the metric of 845 additional trees as part of that project is that there's numerous great other opportunities ahead despite this unfortunate outcome. This unfortunate outcome, a tremendous long shot. I'm really proud of the efforts we've made.

I'm really proud of the fact that we talked about this January 6, but what it comes down to is twenty three days remaining as of today. Tomorrow, it will be twenty two days to proceed as they've directed, and I don't know of any other way. So to write letters or to take additional time to to to address any other opportunities that You're

saying that's not a good idea.

Given the intelligence that we've been communicated, given our relationship, given what we continue to have to do, in addition to all points raised by all of you ladies and gentlemen.

I haven't said a word.

I said all ladies and gentlemen who've spoken. I stand correct, deputy vice mayor Burns. Nevertheless, I have to professionally advise the commission in terms of where we are.

Thank you.

As of today, never mind last week. It was listed as a discussion item. They took it further and it appears that they did not have to have that meeting because they could have simply notified the city of Delray Beach to proceed with what's instructed per the agreement, thirty days, ninety days, whatever the case may be. So in our efforts to to make a galleon effort, if you will, that was the outcome. That was the outcome. That is where it is, and that is what we are being directed as of today.

City attorney, can you add to that?

Sweetie. Would you like to be directed?

Yeah. I'll just say something. I mean

Say something.

Yeah. I try to protect my peace, but, you know, just I just wanna say that as of you know, no one wants to save the tree any more than I know, I'm like commissioner Cassell. As a matter of fact, since my husband's death, I have a tree planted every year. So there's eight around this country that are planted every year. So I am I love the trees.

However, I just don't think we're in a position today, to to fight this. And, you know, laying on the fact that, you know, the taxpayers become it becomes a taxpayers burden, and the fact that, you know, there there's nothing to appeal because, you know, the facts are the facts. I did look at the report, and I just looked at it today. And I was not aware that there was a meeting. It wasn't on my schedule, so I wasn't aware. So and I've never missed a meeting that I was supposed to be to, not yet. So if I had known that I was supposed to be there, I would have been there. I didn't I didn't have a meeting on my schedule.

And ladies and gentlemen, there was not an obligation for anybody to be there on behalf of the commission. It's a public meeting. It was listed as a discussion item. So Yeah.

Didn't get a notice of it. I just wanted because it said that we all got a notice. I didn't get a notice. But I just don't think that we're in a position today to to fight this and to win, and especially looking at the property rights of the the drainage district. I mean, you know, how do you how do you fight that? And and then, you know, a little bit 90%, that's like all of it, like, to me. So, anyway, that's that's a little bit I have to say. I'll go back to being quiet.

System and stuff actually is

I understand.

Is not as encroaching And no one can

predict a a category five, and no one can predict the conditions that it's gonna happen. So just like they're making a prediction, we can't make predictions that it's not going to happen. So, you know, I like to deal with facts and, you know, we we we don't have our crystal ball.

So Is it worth spending a nominal amount of money then to have some arborist review the tree and at least come up with some ideas where they could save the tree and write a letter to ask them to reconsider. Can we we do something? Can we do something to show that we're trying to save the tree? We've not we've not had one of our arborist. We an independent arborist.

They're out there. They're out out there. I've spoke to a couple that were before all this. They all seem to feel that this tree that they could they could sufficiently anchor this tree that it would not pose the hazard that is depicted in the report. And all I'm saying is this report does not have in did not have included in it any of these additional measures which may be able to be done to this tree to anchor it, you know, with with different kinds of anchoring systems to to greatly mitigate the possibility of that tree going into the water.

And I'm and and and and I do there was a the guy I spoke to talked about the weight display. I don't know what he was talking about, the tree, the weight, and all this other kind of stuff.

Did he send

his email? Some of it so maybe some of it need well, I I so did he what?

Did he email all of us before the meeting to tell us this?

No. No. I was on the phone with him. I I I I'm I'm I'm trying to be figure out what we're gonna do here because I haven't engaged anybody. I'm just talking getting information. And, you know, he he I guess he said he's all by by photos. He said, you might have to cut some of the stuff over the over the water because of the weight. But he said he said he he thought it could be anchored and you'd have no problem. Now, that's not an official study. That's a casual conversation on the phone.

Did did he go out and look at the tree?

I think he saw the photos. I think he saw the photo. Well, there's been some good photos of it. So so I've been

yeah. Mean, I I feel better if if he had actually gone out and actually seen the tree and seen the waterway and and understood what we learned in the meeting with Lake Worth drainage. There's foundation that's out there from an old house that it's built into that potentially played in our favor because it was more stable. I mean, there's

All I'm asking is He's

just looking at pictures, man.

All all I'm asking is to have if we could have an a some kind of a professional for a nominal amount of money to see whether or not they could construct a kind of an argument which would show that the tree could be anchored and the tree could be preserved to at least address the immediate concern of let's not cut the tree down in thirty days.

I I mean, I would support that, you know, but do we have the time? Miss Moore just said that we're on a time constraint. Do we have the time? And are we sure that they're gonna even look at that to say we wanna consider consider that? That?

They they well, I because

they don't have to.

Two two of the two of the members of that board live in Delray.

And They take down trees all the time, though.

They Of course

they do. All the time.

Of course they do. But it really but they're taking it down between private homeowners and stuff like that. As I was told, it is not usual for a municipality chart to essentially challenge their decision. They're used to dealing with homeowners and homeowners

against their own report. I just don't. I really don't. I mean

I I don't look. I'm just trying to I just wanted to see if we could do whatever

we can

do save it. Mister Arbery

is saying we don't have

the time to If they reject it after we give them something, you know

We have sometimes we have to go with what the city is saying. He's saying no. We don't have the time because we have to start addressing this immediately.

Well

And Lin is saying we don't have the time either.

I don't I don't know which we have the time. I don't know how long it would take

an arm or two. We don't have the time. And sometimes we have to

just You're the one saying you get an injunction in twenty four hours. Now you're saying we don't have the time.

So I I I I'm

saying I wouldn't do an injunction.

You're not gonna be would have to go out, look at the tree, and make an assessment based on what he's seeing. Right? That's gonna take some time.

I don't I I yes? Mister mayor? Yes?

Thank you, sir. So again to reiterate the intelligence I shared a little while ago regarding the amount of time we have is twenty three days the time frame to remove the tree is roughly between seven days and ten days at the most those are the rough estimates and given last week's direction we were actually looking to initiate work to begin later this week however we've made adjustments in that regard to to see what more can be done but again hearing back from representatives from Lake Worth Drainage District, they are where they are. It appears to be firm. That's what we keep coming

up after the after the last visit then you've heard that. So you're saying like there's they're not going to do anything regardless of what

Based on all communication and intelligence coming forward, they are not executive

said it. Did say that if there's a way to if you could show us a way you could save it, we would consider it.

Based on that comment, which he

made to Joe Lopez at channel five.

Oh. Well, I think that what he said to Joe Lopez is not if mister Moore reached out to him and asked him if there's flexibility and he said no to mister Moore.

I did not talk to them personally. However, our public works team did. There was a discussion in that regard.

Missy is nodding her head that that is what

Missy reported to me, of course, that she does. We talked and we spent time together. We collaborated to that effect. Thus, my having to be open while we're here at the dais because there have been robust discussion in that regard.

Just have to accept

that that this

is what it is.

Because I mean, the attorney will tell you, their attorney I mean, they they have strict rules. There's no question. But he also understands that there may be other arguments. So, you know, this I've I've known this attorney. Attorney used to work for me. I mean, they're attorneys. So I mean, I know these people pretty well. And I think we can convince some members of the board, not all, some members of the board to take a step back and say, Okay, what evidence do you have? So

They have a report. I don't I'm not

I because they all I'm saying is if we can, for a very nominal amount of money, get some evidence that they can look at to at least get get us back to the table. That's what I'm trying to do.

Well, can can there be a letter sent to ask for that additional time so that we will know if we need to move forward with that?

I guess yeah. I mean, I think Could could I Sure.

Could I come out of the corporate world, and I I I think in this situation, if I was faced with this in a publicly traded company, we have a firm we have a firm deadline. They voted seven zero against us. There there was no wiggle room in the vote. I can tell you, having been there, there was no wiggle room. They put some very good data forward. We don't have the same data. I agree with that. We don't. We didn't commission a study with an arborist. I'm not ready to throw the towel in this tree either.

So my only suggestion right now is that, and I'm sure Missy could help us with this, is that we we get a meeting with with their board chairman. And we talk to him and see if there's any wiggle room at all before we go down a legal path and before we spend a lot of money. And there's no reason we couldn't have this meeting tomorrow or or Friday or Saturday or whatever. Let's just see if we can open the door back up and see if we can possibly get them to reconsider or or talk about what options we have. I don't want to throw the towel in in this. Like, I'm I'm as tall as a tree. I I feel I feel I feel tree importance. And I I just think let's take a shot

and have a have

a meeting with their board chairman, see if we can see if we can put our arguments on the table and see if they'll reconsider it. It's an uphill battle, guys. It was seven o.

The city

attorney, I

think, is wanting to speak to that.

If if that's the pleasure of the board, what I would recommend is that we craft a letter. I I would recommend getting the arborist report. And I'm I I I

I don't know how fast you're gonna get it.

It would have to be done with, as mister Moore says,

take two days.

With the quickness.

You're 're sure of

that too? Yes.

Who's the arborist that you're speaking of? Mister mister Chard.

Can you hear the microphone so the public can hear?

You spoke to him. No. He doesn't have to come up. He's

he if

he's not gonna speak, the public has to be able

to hear.

But well, mister our mayor spoke to the guy. He can answer

the question. I spoke to Steven Davis. Davis. Steven Davis who's they're not, like, one of the top arbors in the state. I reached out to

him,

and he was he actually knew you. Yep. And I spoke to him about it, and he he is a he has done a number of work to try to preserve banyan trees, but he's also a general arborist, and he does all this other kind of work. And he offered he said, look. I could do this for you. I mean, I didn't get any timeline

for him.

He from? Is he local?

Yes. Palm Beach Garden. Palm Beach yeah. No. North yeah.

I know. His whole business is around saving trees and and sometimes maintaining them afterwards. He does what I think is something that's important is a risk management assessment. There are risks on both sides. He measures both of those. He comes in and does, you know, the drilling into the ground, and then can produce the report in two days. We have plenty of time to do this.

Alright. Well, that's I would

just suggest before we spend the money that we and Missy can help us. We reach out to Tommy. I forgot his last name.

Stroud. And

and and The executive director. And we see if we can have a meeting with him. Maybe I don't know if we need the whole board, but let's let's see if we can let's see if the door the door can be opened.

But can I

just can I just say something?

Think we have

attorney just said we need to have the report.

Think the legal way to do No.

He can do it in two days.

The legal

I think. I don't know. Yeah.

Well The legal way to do it. Steven's truth is seek reconsideration.

Yes.

And with newly discovered evidence, which would be the report.

Could we get

that report out in a week if he could get the if we could get the arborist on board? Did they what do we know what he's gonna cost?

He has said that he'll do it pro bono.

No. He needs to.

Okay. Then contract with the city. A dollar. I mean, whatever. Okay.

But alright.

So can't turn that down.

Right.

Okay. So we got a guy who'll do it cheap and expensive. But but, again,

we don't know what the report says. We're we're on a shot clock here. We don't have a lot of time. We don't know what their appetite's gonna even be to have a discussion about it. It it just seems to me like

I the top something that why can't we open it?

Why can't we knock on their door tomorrow?

Because they they've made a board decision. That would be well, that would be akin to this commission denying an application and then somebody scheduling a meeting with the mayor and the manager to have a discussion. That's not legally the way that it's done.

And I would not allow myself in that position.

I'm ready, willing, and able

to work on the reconsideration.

We wanna do a motion

for reconsideration for them. They gotta do the same thing as we require. Somebody comes in to give new competent

evidence Right.

Right. And then they put a motion to reconsider. And then we send a letter based on this stuff. Then we have the meeting

And in the motion, we could seek additional time based on their schedule for them to be able to consider our motion and have another vote if they think it's appropriate.

Judicial. They're not gonna just they they need something in front of them in order to make

We have a final board decision. So it's not it wasn't a situation. I I know what you're saying about the agenda, but they actually voted on this so I think that out of respect for another board we have to follow the legal process. The legal process is we now have additional evidence we have newly discovered evidence that we think would persuade you to change your decision we're seeking reconsideration.

I like that.

And I think that's the way that we should do it without putting staff at a crosshairs because this is a partner agency that we have to work with like Mr. And Morse so I have the ability to work on it this week without the report. I spoke with Mr. Chart. I pretty much know what the report's gonna say. We'll attach the report to the motion. We'll have it hand delivered to the Lake Worth Drainage District and then we'll ask them to reconsider it and we'll ask for additional time because we're never gonna meet the thirty day deadline.

Okay. Do I need to make a motion for what you just said?

And so in other words,

it's No. It's a discussion.

So worst

thing I can do is say no.

We're exact same line. But I just think for for record keeping purposes, I think this is the proper way to do it, and it's not gonna add any additional

I will follow your advice.

Stop the train. So come back up. Sorry, mister Chart, my friend. So okay. So we commission we commission this report, and we get it in a couple days. That's that's all great. What is this what is this gonna tell us? Exactly what's the data that it's gonna tell us?

We will get a full fledged risk management report that will say what is the best approach given all of the factors of that tree, where it's located, how big it is, and and so forth. Okay. Because there there are risks on both sides. Yeah. Question the question really is, which side has the higher risk? Yep.

Look, it may come if it comes back

to say,

you guys you you you're dead, then we're not even gonna send the left.

Right? Yeah. Yeah.

And then

we a meeting on Tuesday, so we can bring this back before you on that day.

Okay.

And then I'll prepare a draft motion for reconsider ation that you can review. And if you're satisfied with the report, if you're satisfied with the request, we can send it the next day. We're still within the thirty day window, and we can move forward in that fashion. I just I I I'm not trying to be negative, but we do have a contract that they could easily have said, here's your written notice ninety days move the tree. So while this is while this is something that can instill hope, I I think we need to manage our expectations that we have a contractual obligation with them that they could very easily exercise. That's correct.

Well, I think this is a last ditch effort, and so we should we should take it. So you have my consensus.

So I'll have it draft. I'm gonna have to amend the agenda to add it. So is that okay?

Not hey. It's still we still have ample time to amend the agenda, Tuesday. Okay. I'm just

saying it's gonna be amended, so but I'll I'll add a draft motion

for you to send the motion. The arbors is watching all of this. So he he says that he can have a report on your desks Friday morning.

Mister Moore's desk.

And that's where I was about to go. Mister mayor, may I please?

Yeah. I mean I mean, I can see I'm not an arborist. I'm hoping it comes back

saying Really?

We got a shot. If if he could it could come back saying, you don't have a shot. In which case

Mister mayor?

You know? Tell the arborist we love him, and we love him anyway.

I don't think about that. Not

going that far.

Yes, sir.

Thank you, mister mayor. So just to clarify, it would have to be delivered to the office of the city manager by Friday, of which time I will share that with the office of the city attorney as well as members of the city commission so as to accompany the February 24 engagement on a subject. At February meeting, of course, we'll be in position to offer direction from there but that also means myself working closely with the public works team, we would have to engage with staff at Lake Worth Drainage District to have preliminary dialogue, which of which we're empowered to do. So a lot of moving parts over the next few days given direction now being contemplated, but we will be before you February 24 to support and anchor the observations offered by city attorney Lynn Jellen so that we can take a last ditch effort attempt, attempt, if you will. However, we also, in the process of all of this, need to logistically prepare for contractual services to ultimately remove the vegetation because, of course, of what we are being charged and has to

do simultaneously.

Concurrently with one another. We have to do that. So we'll keep everybody informed as we go along, but, again, we'll be back before you February 24.

Clearly nicer than sending them an injunction or trying to make injunction. I mean, are partners and we rely on them. I mean, we need their help to get

the goal scores done. We absolutely do. That was part of

my comments earlier. Agonistic. I'm trying to give one last ditch effort

I know, bud.

To save this 78 year old tree

maybe

which is only older than I am. Actually, she's younger than Jim. And this

is a path forward in that regard. So February 24 will be back.

Thank

you. And again, we are preparing concurrently for either case. Hopefully, additional time, whatever the outcome is. And mister Chart, have the arborist to contact me upon completion of the report Friday, and we'll take it from there. Miss Bartlett, of course, you and I will work collaboratively as we do to get ourselves squared away with Lake Worth Drainage District staff in terms of tonight's direction.

Jim, thank you for for jumping in on that, man. We appreciate it.

Thank you for listening.

Do you have the flu? Thank

you all very much. We are adjourned.