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Documents and Exhibits submitted for the Record in Opposition - Submitted by Alan S. Zimmet, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLEARWATER DEVELOPMENT BOARD HEARING Hearing Date: Case Number: Owner/Applicant: Address: September 16, 2008 FLD2008-02002 Belleview Biltmore Owner, LLC 1590 Gulf Boulevard DOCUMENTS AND EXHIBITS SUBMITTED FOR THE RECORD IN OPPOSITION TO APPLICANT'S FLEXIBLE DEVELOPMENT REQUEST Submitted by: Alan S. Zimmet, Esq. Zimmet, Unice & Salzman, P.A. 2570 Coral Landings Blvd, Suite 20 I Palm Harbor, FL 34684 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Contents Sue Murphy, AICP Opinion Letter dated August 15,2008................................ ............. 1 Resume of Sue Murphy, AICP.................................................................. ............ 4 Relevant Sections: Clearwater Community Development Code........................................ 6 Hotel Room to Restaurant Seat Ratios.. ......................................... .............. ..... ...... ...7 Photograph of Cabana Club Parking Lot taken on March 28, 2008....... .... ............. ......... ..... 8 Photograph of Cabana Club Parking Lot taken on April19, 2008.. .............. ..................... ...9 Photograph of Cabana Club Parking Lot taken on May 25, 2008................. ....................... 10 Current View of Cabana Club Property............ ...... ..... .......... ............. .............. ........ 11 View of Cabana Club Property with Proposed Hotel Superimposed................................... 12 Qualifications of Ronald A. Oxta1, MAl.............. ........... .......................................... 13 View of Cabana Club Property from 1591 Gulf Boulevard (The Harbour South).............. ...... 16 View 1 of Cabana Club Property from 1621 Gulf Boulevard (The Isle of Sand Key).... ........... 17 View 2 of Cabana Club Property from 1621 Gulf Boulevard (The Isle of Sand Key). . .... . . . . . . . .. 18 View of Cabana Club Property from 1586 Gulf Boulevard (Cabana Club Condominiums)........ 19 View 1 of Cabana Club Property from 1600 Gulf Boulevard (Dan's Island North).............. ...20 View 2 of Cabana Club Property from 1600 Gulf Boulevard (Dan's Island North). . . . . . ... . . . . . .... 21 View 3 of Cabana Club Property from 1600 Gulf Boulevard (Dan's Island North)................. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) & '" (A)niultina t;...()UP~ Inc. August 15,2008 Alan S. Zimmet, Esq. Zimmet, Druce, Salzman & Heyman, P.A. 2570 Coral Landings Blvd., Ste 201 Palm Harbor, FL 34684 Subject: Belleview Biltmore Cabana Club, ] 590 Gulf Blvd., Clearwater, FL Dear Mr. Zimmet: As requested, I have analyzed all of Legg Mason's submittals, the City of Clearwater's Community Development Code (the Code) and existing conditions on the site in regard to the above-noted request for flexible development approval. ,In my professional opinion as a land use planner, the proposed project is simply trying to put too much development such a small parcel of land. This is evidenced by the number and extent of deviations from the Code that are necessary to allow this development. Merely, because the Code's density limitations allow a 38 room hotel, does not mean that a 38 room hotel can meet the Code's other development regulations applicable to this property. Not only is the applicant in need of the deviations to fit the 38 room hotel, they are trying to squeeze in an oversized restaurant. The applicant is claiming that the 4,981 s.f. restaurant shown on their plans, in addition to the 1,096 sf. bar and grill by the pool area, is accessory to the 38 room hotel. If this claim is accurate, the Code would not require any additional parking to be provided for the restaurant uses, beyond the 18 spaces that are being provided in addition to the 38 required to serve the hotel. The applicant states that they are providing 56 spaces. Three of these spaces are handicapped spaces so they cannot be legally used by the general public. Accessory uses are defined in the Code to be subordinate to the principal use and on the same property. They are also defined to be subordinate in extent relative to the principal use. The ratio of restaurant seats to hotel rooms demonstrates that this restaurant is not subordinate to nor is it intended to serve mainly the guests of the 38 room hotel. A survey of many quality hotels in this area shows that the average ratio of seats to hotel rooms is 0.97. The Cabana Club is proposed to have 4.34 seats for each hotel room, which is approximately 450 percent higher than the average for the hotels surveyed. A copy of the survey results is enclosed. ti()1 Wed I:udld Avenue · Tampa. nmda noo~ Vh: (SI:1) WI~ · r=ax: (SI.)) ~<Xl')1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alan Zimmet, Esq. Page Two The applicant also claims that the restaurant is accessory to the Belleview Biltmore, which is approximately 6 miles away in the Town of Bellair. The City's definition of "accessory use" requires that the accessory use be located on the same site as the principal use. In my opinion, this 'Only makes sense from a land use planning standpoint, since the parking provided 6 miles away will not meet the needs created by the 4,981 sf. restaurant proposed on Sand Key. Therefore, it is my opinion that under the Code, the proposed restaurant is not an accessory use to the proposed hotel. Despite the recently submitted shared parking analysis prepared by Tim Haahs on behalf of the applicant, there is clearly not enough parking available to serve both the hotel's needs and that of the restaurant. The study proposes valet parking in a manner that violates the Section 3. 1404(C) of the Code. It also relies on a 70 percent internal capture of trips as a resort and assumes that only 24 of the 38 hotel rooms will be occupied. That translates into approximately 48 people using 70 percent (116 seats) of the 165 restaurant seats. Under the shared parking provisions of the Code, there is a table that states that both overnight accommodations and restaurants need 100% of their required parking at the same time, between the hours of 6 pm and midnight. Therefore, the greatest demand for the two proposed uses of this site are during the same exact hours. If one space is utilized for each hotel room, there are 18 spaces remaining for a 4,981 sf. restaurant, a 1,096 sfbar and grill, hotel cars such as the airport van and delivery vans, guests of the hotel users, and any of the Belleview Biltmore's estimated 900 guests who are encouraged to use the beach facility. Three of the total number of spaces provided are handicapped spaces, not available for general public use. While the applicant indicates that they will shuttle Belleview Biltmore Hotel guests and employees to the site, they are not going to be able to prohibit them, especially, Belleview Biltmore Hotel guests, from driving there and needing a place to park. As you can see from the enclosed photographs, there is not enough parking now for just the existing restaurant. The applicant is proposing seven parking spaces more than the existing development, even though they are adding 38 hotel rooms. Under the Flexible Standards in the Code, 35-75 parking spaces would have to be provided for the new restaurant use. While the Comprehensive Infill Criteria is more flexible, there is still the need to provide parking based on the need being created by the use, and the Flexible Standards provide a guideline for doing so. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alan Zimmet, Esq. Page Three Also, the layout of the proposed parking lot does not meet minimum code requirements for stacking. The minimum requirement is 40 feet from the road, and the site plan shows approximately 20 feet. This creates a traffic safety issue if cars back up onto Gulf Blvd. trying to enter the Cabana Club. This standard, as well as the other standards referenced from the Code, are enclosed. In order to approve comprehensive infill projects, the City must find that the proposal meets the enclosed Comprehensive Infill Criteria contained in Section 2-704 of the Code. The first review criterion is whether or not the development or redevelopment is otherwise impractical without deviations from the use and/or development standards set for in the zoning district. Because the applicant is seeking to overdevelop the site, numerous deviations from the code have been requested. However, there are several commercial uses that could be practically fit on this site and be developed without the need for numerous deviations. Criterion 5 requires that the proposed use will not substantially alter the essential use characteristics of the neighborhood. Also, all of the criteria in number 6 must be met for approval of flexibility as to use, lot width, required setbacks and off-street parking. Criterion 6b requires the design, scale, and intensity of the proposed develop support the established character of the area. As already discussed, in my professional opinion, the intensity of the project is not compatible with, nor does it support, the established character of this area, which is residential. The proposed development is too intense for the size of the parcel so deviations from flexible standards are being requested for setbacks, height, and lot width and there is insufficient parking proposed for the intensity of the uses planned for the site. The lack of parking will have a negative impact on the surrounding properties. The existing restaurant already has been cited for cars parking illegally in the fire lane or driveway, pictures demonstrate that the parking situation on site violates Code requirements and the proposed parking layout also violates stacking requirements. In conclusion, it is my opinion that the proposed development does not meet the criteria for infill development under the City's Community Development Code. Sincerely, \J I -' , , / " O' I" I : ,(" . ,', "~I . . " . I ! Sue Murphy, AICP ;.. President Encs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESUME FOR SUE ANN MURPHY, AICP OVERVIEW OF EXPERIENCE: Sue Ann Murphy is a Land Use Planner specializing in Entitlement Issues, including Rezoning, Comprehensive Plan Amendments, Large Scale, Multi-jurisdictional Project Entitlements, Traditional Neighborhood Developments, Permitting, Developments of Regional Impact, Development Agreements, Ordinance Preparation, Grant Writing, and Expert Witness for Land Use Matters and related issues. She is President ofP&M Consulting Group, Inc., in Tampa, Florida. Sue has been actively involved in Smart Growth and assists numerous retailers and shopping center developers in dealing with growth related matters and helping them with long range planning, entitlements and permitting. She currently chairs the Smart Growth Subcommittee of the International Council of Shopping Centers ("ICSC") and was the ICSC 2006 Dean of the University of Shopping Centers' School of Economics. Sue is the former ICSC Southeast United States Director of Government Relations and is actively involved in the development of several large scale, mixed use and residential projects in Florida. Present Position: President ofP&M Consulting Group, Inc. 501 West Euclid Avenue Tampa, Florida 33602 (813) 503-8900 Former Positions: 1980: 1981 - 84: 1984 - 85: 1985 - 89: 1989 - 2001: 2001 - 2006: Assistant to the Mayor of Oldsmar. Planning Supervisor, City of Tampa, Florida Hillsborough County Zoning Hearing Master and President of Sue Murphy & Associates Department Head of Planning and Landscape Architecture for Greenhorne & O'Mara, Inc. Planning Director for the law firm of Rudnick & Wolfe (Currently DLA Piper) Senior Planner for the law firm of Ruden, McClosky, Smith, Schuster & Russell President, P&M Consulting Group, Inc. 2006 - present: Education: B.A. in Fine Arts, University of Maryland, 1976 M.A. in Geography, University of South Florida, 1980 Specialty Education: Residential Design, Harvard University, Graduate School of Design, 1988 Design of Stormwater Systems, City of Tampa Engineering, 1982 Professional License: American Institute of Certified Planners (AICP) since 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESUME FOR SUE ANN MURPHY Committees: State Board of Directors of Florida Home Builders, 1985-89 Chair, Zoning Advisory Task Force, Hillsborough County 1985 Board of Directors, National Association of Industrial and Office Parks, 1986-96 Florida Governmental Affairs Chair, International Council of Shopping Centers ("ICSC"), 1992-94; 2004-05 Southeast United States Chair of Government Relations, ICSC 1998-2000 Chair, Smart Growth Task Force, ICSC 2000-present Dean, University of Shopping Centers, ICSC, 2005-06 Chair, Florida ICSC Conference, 2004 Teaching experience: Instructor: University of South Florida, Geography Department Guest lecturer at University of Miami Law School. Taught course on property rights and entitlements with Mark Tobin, Principal of Brigham Moore, LLP Guest lecturer at University of Florida. Taught course on Growth Management Courses/Seminars/Teaching Positions for International Council of Shopping Centers Dean of University of Shopping Centers, School of Economics, Wharton School, Philadelphia University of Shopping Centers, School of Economics, taught course on Smart Growth Law Conferences: Conducted seminars on Redevelopment and Adaptive Reuse, and a seminar on Dealing With Neighborhood Opposition to Development Projects Florida Conferences: Conducted seminars on Growth Management, Negotiation of Entitlements, and New Urbanism Centerbui1d Conferences: Taught seminars and workshops on Growth Management, Negotiation of Entitlements, and Impact Fees National Convention: Conducted a General Session on Retailers Role in Smart Growth Representative Clients: Centex Homes Leucadia Financial Corporation Kimco Realty Corporation Publix Super Markets, Inc. Teachers Retirement Sembler Company General Motors Corporation RMC Property Group McDonalds Corporation Mobil Oil Corporation Page 2 of 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RELEVANT SECTIONS: CLEARWATER COMMUNITY DEVELOPMENT CODE Definition of "Accessory Use": Accessory Use means a use which: (1) is subordinate to and serves a principal use; (2) is subordinate in area, extent and purpose to the principal use served; (3) contributes to the comfort, convenience or necessities of the users or occupants of the principal use; and (4) is located on the same lot as the principal use. Section 2-701: Commercial The intent and purpose of the Commercial District is to provide the citizens of Clearwater with convenient access to goods and services throughout the City without adversely impacting the integrity of residential neighborhoods, diminishing the scenic quality of the City or negatively impacting the safe and efficient movement of people and things within the City of Clearwater. Section 3-1404(C) Off Street Parking Spaces: Availability All required parking spaces, including appropriate access thereto, shall remain unobstructed and available for use in accordance with their purpose. Section 3-1405 Shared Parking When any land, building, or area is used for two or more uses which are listed below, the minimum total number of required parking spaces shall be determined by the following: Multiply the minimum required parking spaces for each individual use, excluding spaces reserved for use by specified individuals or classes of individuals, by the appropriate percentage listed in the Table below for each of the designated time periods and the resulting minimum required parking spaces in each of the five vertical columns for the table. The minimum parking required is the highest sum of the vertical columns. USE TIME PERIOD 6:00 pm - Midnight Overnight Accommodations 100% Restaurant 100% Section 3-1401(C) Parking: The community development coordinator may require an applicant to prepare a parking demand study in conjunction with a request to make deviations to the parking standards. Prior to the preparation of such study, the methodology shall be approved by the community development coordinator and in accordance with accepted traffic engineering principals. The findings of the study will be used in determining whether or not deviations to the parking standards are approved. Section 3-1406(B) Stacking Spaces Provisions must be made for stacking and transition of incoming traffic from a public street, such that traffic may not back up into the public street system..... (2) The minimum distance between all other rights-of-way and the first space or aisleway in a parking lot shall be as outlined in the following table: NUMBER of SPACES MINIMUM STACKING DISTANCE 51 or more 40 feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HOTEL ROOM TO RESTAURANT SEAT RATIOS Number of Number of Seats per Room Hotel Name Rooms Restaurant Ratio Seats * Belleview Biltmore (Existing) 394 240 0.60 Seats/Room 494 1.16 Belleview Biltmore (Proposed) 425 (indoor & Seats/Room outdoor) Sheraton Sand Key 390 344 0.88 Seats/Room Marriott Sand Key 220 254 1.15 Seats/Room Sand Pearl Clearwater Beach 253 172 0.67 Seats/Room Vinoy Renaissance 347 330 0.95 Seats/Room Don Cesar Beach Resort 277 330 1.19 Seats/Room Ritz Carlton Naples 450 548 1.21 Seats/Room AVERAGE "RESTAURANT SEATS PER HOTEL ROOM" RATIO 0.97 Seats/Room PROPOSED CABANA CLUB HOTEL 38 165 4.34 447% of the Average Ratio Seats/Room * Based upon the total number of restaurant and bar seats for each establishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . =s ~ ~ ~ .. =",. 'll!!t' ' .. t"-- @ QC = = M .... ~ ~ M ..= ~ ; '~ ~ ~ ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . ::E . ~ . V) 0 . . . ~ ('f") . . . V) . @ . 00 . 0 0 . N .. . ~ . ~ . ...... .C . 0.. < . C . <l) ~ . . Iii, - - - - - - - - - - - .. - - .. - - - - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OXTALREALEsrAIE Advi~()l:S1,h'1('. QUALIFICATIONS OF RONALD A. OXTAL. MAl EDUCATION: YEAR Northeast High School, Philadelphia, Pennsylvania 1975 Temple University, Philadelphia, Pennsylvania Bachelor of Business Administration (Real Estate) 1979 REAL ESTATE EDUCATION: Appraisal Institute - National USPAP Update Course 2008 - Florida Superior Trainee Roles and Rules 2008 - Florida State Law Update for Real Estate Appraisers 2008 - Introduction to GIS Applications for Real Estate Appraisal 2008 - Business Practices and Ethics 2007 - Online Appraising From Blueprints and Specifications 2007 - Online Appraisal of Nursing Facilities 2007 - Online Analyzing Operating Expenses 2007 - Residential Market Analysis and Highest & Best Use 2006 - National USPAP Update Course 2006 - FREAB Course: ACE # 0007293-Florida State Law for Real Estate Appraisers 2006 - FREAB Course: ACE #007559-What Clients Would Like Their Appraisers to Know 2006 - National USPAP Update Course 1400 2004 - Analyzing Distressed Real Estate 2004 - Evaluating Commercial Construction 2003 - The Emerging (Mark To) Market: Valuation for Financial Reporting Purposes 2003 - Florida Law Update For Real Estate Appraisers 2002 - The Appraiser as an Expert Witness: Preparation and Testimony 2002 - Appraisal Consulting 2002 - Regression Analysis in Appraisal Practice 2001 - Appraisals and Real Estate Lending 2001 - USPAP/Florida Law 2000 - Attacking and Defending an Appraisal in Litigation 2000 - Evolution of Capital Markets 1999 - Partial Interest Valuation - Divided 1999 - USPAP/Law for Appraisers 1998 - Appraising from Blueprints and Specifications 1998 - Eminent Domain Conference 1997 - Florida Condemnation Valuation & Appraiser Liability 1997 - Litigation Skills for the Appraiser: An Overview 1997 - The Internet and Appraising 1997 - Standards of Professional Practice 1996 - USP AP Core Law Update 1996 - Continuing Education Seminars 1996 - Continuing Education Seminars 1995 - Continuing Education Seminars 1994 - Understanding Limited Appraisals 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . QXTAL REALEsrAlE Advis()l:S~hl('. - USP AP Core Law Update - Appraisal Review Income Properties - Standards of Professional Practice Part A - Standards of Professional Practice Part B - The Appraiser's Legal Liabilities - Capitalization Theory & Techniques Part B - Appraisal Regulation of Federal Banking Agencies - Litigation Valuation - Appraising for Pension Fund Portfolios Seminar - Standards of Professional Practice (update) - R-41c Seminar - Continuing Education Classes and Seminars - Comprehensive Examination - Real Estate Investment Analysis - Case Studies in Real Estate Valuation - Valuation Analysis & Report Writing - Capitalization Theory & Techniques Part 1 - Capitalization Theory & Techniques Part 2 - Capitalization Theory & Techniques Part 3 - Standards of Professional Practice - Residential Valuation - Basic Valuation Procedures 1994 1993 1992 1992 1991 1991 1990 1989 1988 1987 1986 1986 1985 1985 1984 1984 1983 1983 1983 1983 1979 1979 Society of Real Estate Appraisers - Applied Income Property Valuation - Income Property Valuation - R-2 Examination - Principals of Real Estate - Narrative Report Writing Seminar - Income Approach Seminar 1983 1982 1981 1981 1980 1980 EMPLOYMENT HISTORY: Oxtal Real Estate Advisors, Inc. (Tampa, Florida) President From January 1,2001, to Present R+E Marketing Consultants, Inc. (Tampa, Florida) Principal From July 1, 1986, to Present R+E Marketing Consultants, Inc. (Tampa, Florida) Senior Associate From March, 1982, to June 30, 1986 Williams Appraisal Service (Tampa, Florida) Associate From September, 1980, to March, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OXTALREALEsrATE Adtis~Ol:Sl, 111C'. Edward G. Ireland, RM, SRA (Philadelphia, Pennsylvania) Associate From May, 1978, to September, 1980 COURT TESTIMONY/EXPERT WITNESS: U.S. Bankruptcy Court (Various Jurisdictions) Hillsborough County Circuit Court Pasco County Circuit Court Hernando County Circuit Court Pinellas County Circuit Court U.S. District Court - Eastern District of Virginia U.S. District Court - Southern District of Florida DESIGNATIONS: MAI- Member, Appraisal Institute. Currently Certified. Member No. 7212 Florida - Certified General Appraiser #RZ265 Georgia - Certified General Appraiser CG004203 LICENSES: Real Estate Broker State of Florida MEMBERSHIPS: Appraisal Institute, West Coast Florida Chapter Real Estate Investment Council (REIC) Regional Ethics and Counseling Panel National Association of Convenience Stores Mortgage Bankers Association of America International Council of Shopping Centers Association of Eminent Domain Professionals EXPERIENCE: Mr. Oxtal has the experience in the following property types to meet the competency provision requirements of USP AP. Analysis and appraisal of residential, commercial, industrial and special purpose properties, including subdivisions, PUDs, business parks, condominiums and condominium conversions, apartments, shopping centers, office buildings, golf courses, tennis clubs, mobile home parks, restaurants, hotels and warehouses. Experience also includes highest and best use studies, market studies, partial interest valuations, and trial testimony in eminent domain and bankruptcy matters. Mr. Oxtal also has experience in development, brokerage, leasing and financing matters. .:.:.. . .i .. . . . .1 ~ '~!'I;t:II' """;"""';'{j.;.! .....;....", .1.....11 '. T.. I;,! : '.' )"'1' li""".1 -' , ,- '_ -', " , ,i ,I: (~_', " " /" ! ' ' tL^,.i. ;"r, ..,/;LILI""'I.",Ij'. ,\...,1.1..!,.,. '" ., '.. : ,;! , .', "'1, " ' ",j fi",~",-;Jl,~~~I,j-.il''''''I", .~ ., 6r" ".'~ . . . :.- . . . . ','i. ~."."'.""'''' ~." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .