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Hearhlg Officer
May 6, 1 999
1 :00 p.m.
. Thomas A. Nott
Petitioner
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'.. City of Clearwater,
~espondent
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Petitioner is appealing the Planning ,arid Zoning Board's denial of his conditional use request
(CU 99-0?) at the 3/2/99 meeting. ,., '
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ThomasA. & Frederic T. NotfCClearwater Cars) to permit vehicle sales at 700 Cleveland~
'Street. '
, DOAH Case # 99-1233
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A court reporter attended this meeting.
The Final Order C 16 pages) & transcript {113 pages} Is on paper (until microfilmed) in the
. 'Hearing Officer minutes n?tebook;
. The Hearing Officer upheld the Board's decision.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THOMAS A., NOTT, )
)
Appe1 lan't , )
) RPJCEIVED
vs. ) Case No. 99-1233
)
CITY OF CLEARWATER, ) JUN 21. 1999
)
Respondent. ) CITY CLERK DEPl:
)
FINAL ORDER
On May 6, 1999, a final hearing was held in this case in
Clearwater, Florida, before J. Lawrence Johnston, Administrative
Law Judge, Division of Administrative Hearings.
APPEARANCES
For Appellant:
patrickT. Maguire, Esquire
308 North Belcher Road
Clearwater, Florida 33765
For Respondent: Leslie K. Dougall-Sides
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33758
STATEMENT OF THE ISSUE
The issue in this appeal is whether to sustain the decision
of the City Planning and Zoning Board (the Board) to deny Thomas
A. Nott. a conditional use permit to sell pre-owned motor vehicles
at his business at 700 Cleveland Street, Clearwater, Florida.
PRELIMINARY STATEMENT
, Thomas A. Nott filed his application for a conditional use
permit on or about January 12, 1999. The application was heard
and denied on March 2, 1999.
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On March 11, 1999, Nott filed a Notice of Appeal. Under
Section 36.065 of the City of Clearwater Land Development Code
(the Code), the appeal was forwarded to the Division of
Administrative Hearings on March 18, 1999, along with a copy of
the record of the proceedings below. After the filing of
responses to the Initial Order in the case, a Notice of Hearing
was issued on April 2, scheduling final hearing on May 6, 1999.
. At final heal:ing, the record of the proceedings below was
received into evidence, including the tapes, minutes, and
exhibits from the Board hearing. Nott and his wife testified,
and Appellant's Exhibits 1 through 4 were admitted in evidence.
The City called two witnesses and had City Exhibits 1 through 8
admitted in evidence.
The owner of a neighboring business (Trickels Jewelers)
spoke in opposition to the application; however, Code Section
36.065(5) does not appear to contemplate presentations by members
of the public during this appeal.
After presentation of the evidence, the City ordered the
preparation of a transcript of the final hearing, and the parties
were given 20 days from the hearing or ten business days from the
filing of the transcript (whichever was sooner) to file proposed
final orders. Both parties timely filed proposed final orders,
and the Transcript was filed on May 28, 1999.
FINDINGS OF FACT
1. Thomas A. Nott owns Lots 6 and 7, Gould & Ewing'S Plat
2nd Addition. The street address is 700 Cleveland Street,
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~ Clearwater, Florida. This property is on the northeast corner of
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~ Cleveland Street and East Avenue. The property is in the Core-2
(C-2) subdistrict of the Urban Center (UC) zoning district.
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2. The Clearwater Downtown Redevelopment Plan states in
pertin~nt part:
An extremely important aspect of the way
Downtown Clearwater functions and is
perceived involves transportation within and
into the Downtown. If the traffic flow into
Downtown is efficient and the entryways are
attractive, Downtown Clearwater is more
likely to be frequ'ented by citizens and
visitors. If traffic.flow is congested and
the roadsides are unappealing, the Downtown
is .less likely to be a place where people
visit, live and shop 'and where 'entrepreneurs
invest money.
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Cleveland Street is the single most important
..roadway in Downtown Clearwater. Due to it(s]
"Business S.R. 6011 designation, it carries a
substantial amount of the traffic heading to
Clearwater Beach, as well as the bulk of the
office and retail traffic headed for
Downtown. . . . In the Downtown Core area,
Cleveland Street has been attractively
landscaped with paving block and planters.
This treatment has greatly improved the
appearance of the Downtown along Cleveland
Street. However, these efforts are, to some
extent, undermined by the poorly landscaped
sections of Cleveland Street outside the
'Downtown Core area. Land uses outside of the
Downtown Core along Cleveland Street are
relatively unattractive and are poorly
landscaped. A remedial landscaping program
should be considered as a top priority for
improving this important entryway.
3 .
The City also has adopted Design Guidelines for new
construction, building addition~, facade alterations, and signage
for the Urban Center zoning district. A section on "Landscape
and Streetscape Guidelines" suggests the use of different kinds
of planters and curb !lneck-out" street corners to create larger
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pedestrian areas that incorporate benches, specialized pavers,
. and lighted bollards. Landscaping, including sbade trees, are
suggested to provide separation between people and vehicles. A
subsection on "Open Spaces" states: "Designers of site
improvement areas are encouraged to explore opportunities to
incorporate usable open space with the project (development)
area. It
4. Nott's property is in a transition area between the more
attractively landscaped City core to the west and the less
attractive portions of Cleveland Street to the east. Immediately
to the west across East Avenue is the Pinellas Trail.
Immediately to the west of the Trail, fronting on Cleveland
Street, is the historic United States Post Office building, which
is listed on the National Register of historic buildings. (Since
it still functions as a working post office, a large number of
mail delivery trucks park and operate out of the back of the post
office to the north.) The Trickels Jewelers building to the
immediate east of Nott's property also is attractively
landscaped, especially along Myrtle Avenue. The other properties
to the north, east, and south of Nott's property are less
attractive. They include: an automobile and marine repair
business; a restaurant with little or no open space; an import
car repair service business with little or no open space; and a
car rental business. Ideally, the City would like Nott's
property to become the start of an eastward expansion of the more
attractive urban core along Cleveland Street.
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. 5. Nott's property is 0.26 acre in area; its dimensions are
105 feet in width and 109 feet iri depth. Unlike most properties
in the downtown urban core, the building on Nottls property is
set back quite a distance from the streets. The building has one
story and is just 1500 square feet. In the past, the property
has been used as an automobile gas and service station and as a
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car rental business. Before Nott bought the property, the
building was in disrepair and in decline.
6. Approximately four years ago, Nott was considering
relocating from South Beach in Miami, where he was in the
business of selling pre-owned motor vehicles. Initially, he
inves~igated relocating to Dunedin, but an official with
Clearwater's redevelopment agency persuaded him to take advantage
~ of Clearwater's commitment to redevelop the downtown urban core,
as well as interest-free financing available through the agency
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to improve the property.
7. Nott bought the property, borrowed approximately $50,000
interest-free, and invested that and an additional $50,000 of his
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own money to improve the property. His plan was to conduct two
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a roller skate and bicycle rental
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business catering to users of the pinellas Trail; and a pre-owned
motor vehicle sales business. Due to family priorities, Nott had
to delay his departure from Miami and only was able, with the
help of a nephew, to open the skate and bicycle shop. The 121
square feet of storefront planned for the vehicle sales business
was used as storage space for the skate and bicycle shop pending
~ opening of the vehicle sales business.
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B. The skate and bicycle shop, called Fritz's Skate Shop,
had been operating for approximately three years when Nott became
r~ady to open his pre-owned vehicle sales business. When he went
to get an occupational license towards the end of 1998, Nott
learned that a conditional use permit would be required. In
discussions with staff of the City's Planning and Zoning Board,
Nott ,also was informed that a new zoning code was going into
effect which would prohibit vehicles sales at Nett's property and
that he would have to expedite his application for it to be
considered under the existing zoning regulations.
9. Nott filed an application for a conditional use approval
on or about January 12, 1999. At the time, Nott was not familiar
with Clearwater's zoning regulations. and did not address some
zoning requirements. Specifically, while the sketch Nott drew by
hand to approximate scale to serve as the required site plan met
the minimum requirements as to form, it only showed a three-foot
. . grass buffer along Cleveland Street and a three-foot buffer of
shrubs along East Avenue, while the City'S development code
required at least a ten-foot landscaped buffer along Cleveland
Street and at least a five-foot landscaped buffer along East
Avenue. The sketch also showed parking that would obstruct
vehicle flow in the parking lot and failed to 'show a large oak
tree on the site. Finally, the sketch showed parking for the
display of vehicles for sale along Cleveland Street.
10. Nott's application was set for hearing at the Board's
last scheduled meeting on March 2, 1999, just six days before the
~ new zoning and development code would take effect. Nott still
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.~ did not know all of the applicable regulations under the existing
code. For some reason, Nott did not obtain a complete set of the
City's zoning and development regulations until approximately
February 17, 1999.
11. Nott blamed the delay on foot-dragging by the Board's
staff, and he questioned whether the staff was being
uncooperative to undermine his application. Nott testified that
he did not get a complete set of the applicable zoning and
development regulations until after he sent a letter of complaint
to the staff director on February 13, 1999. The staff denied any
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intention to delay Nottls application or be uncooperative. The
staff blamed some of the delay on the time it took for Nott to
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prepare and submit an acceptable site plan.
12. It appears that Nott entered into the application
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process thinking that there would be no problem meeting the
City's requirements and expecting the Board's staff to walk him
through the process. When Nott's expectations were not met, he
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perceived that the staff was treating him unfairly. But it is
found that Nottls evidence did not prove unfair treatment. In
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fact, due ~o Nett's inexperience, the staff was required to give
Nott more assistance than usual.
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13. For his presentation to the Board, Nott had a
consultant use a photograph of the site to create a computer-
visualization ef the proposed vehicle sales business. The
photograph depicted one vehicle parked in front of the building,
as well as four vehicles parked along Cleveland Street and one
parked along the east property line in two of the areas
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identified on the s.i.te plan as parking for the display of
vehicles for sale. The visualization did not add any
landscaping. At the time, Nott thought the concern was adequate
parking; he did not know at the time that landscaping also would
be important to his application.
14. When Nott got and reviewed the applicable zoning and
development code provisions and the staff's report, he realized.
that he had not addressed the landscaping buffer requirements.
He had his consultant further modify the computer-visualization
to'add a ,landscaping buffer. This visualization was presented at
the Board hearing on March 2, 1999. However, the visualization
still depicted vehicles parked along Cleveland Street and was not
clear as to the width of the landscaping buffer. The site plan
was not modified, so the extent of the proposed landscaping
buffer could not be ascertained from the site plan.
15. At the Board hearing, Nott stated that he would be
willing to do whatever the City said was necessary in order for
him to receive a conditional use permit. But Nott made no
specific proposals. Essentially, Nott was asking the City to
formulate an acceptable application for him.
16. The staff report indicated that an on-site traffic
circulation problem could be cured by eliminating two customer
parking spaces in front of the building. But it was impossible
to determine from the evidence in the record how a wider
landscaping buffer would impact either traffic circulation in the
parking lot, parking, or the large oak tree.
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17. The staff report pointed out that Nott's application
proposed to maintain minimal (7%) open space on the site. The
neighbor to the immediate east (Trickels Jewelers) has 30-35%
open space, including attractive landscaping along Myrtle Avenue.
At the Board hearing, Nott claimed "open space" credit for the
shade canopy provided by the large oak tree on-site and contended
that the credit would increase his "open space" to 30-35% as
well. But even if open space credit can be given for shade
canopy over a parking lot, Nott's testimony was insufficient to
prove the extent of the tree's shade canopy. Besides, it could
not be ascertained from the record whether the tree would have to
be removed to meet landscaping buffer, traffic circulation, and
parking requirements.
18. Nott testified at the appeal hearing that, after he
proposed and depicted parking of vehicles for sale along
Cleveland Street, the "Division of Motor Vehicles" advised him
that it would not allow him to display vehicles in that location.
Nett testified that he would simply eliminate the display parking
spaces along Cleveland Street and limit the display of vehicles
for sale to 12 at anyone time in parking spaces adjacent to the
building and along the east property line. But it was not clear
from the record whether all of the re~aining spaces depicted on
the site plan for display parking would remain available for that
purpose after adding landscaping buffer, and also maintaining
adequate. traffic circulation and customer parking.
19. In addition to agreeing to meet the perimeter landscape
buffer requirements, Nott also agreed to condition approval on:
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(1) operating his vehicle sales business only 10 a.m. to 5 p.m.
on Monday through Saturday; (2) not using windshield advertising,
flags; or banners; (3) only selling vehicles with a retail value
of $10,000 or more; and (4) not operating a Ilbuy here-pay here"
used car lot.
CONCLUSIONS OF LAW
20.. Code Section 40.481 states in part: liThe urban center
(UC] zoning .district is created to proVide for and guide the
development and use of land within the downtown area of the city
"Permitted uses within the Core subdistricts inClude
residential,' retail, business offices, hotels/motels, and
government offices. Code Section 40.484(2). Vehicle sales are
allowed as a conditional use within this zoning district. Code
Section 40.485(2) (0).
21. Code Section 41..033 provides:
"
A conditional use shall be approved by the
board only upon determination that the
application and evidence presented clearly
indicate that:
(1) The use complies with the land
use plan.
(2) The use complies with all
other applicable provisions of this
development code.
(3) The use complies with the
applicable conditional use
standards for the proposed use
contained in division 3 of this
article.
(4) The use shall be consistent
with the community welfare and not
detract from the pUblic's
convenience at the specific
location.
(5) The use shall not unduly
decrease the value of neighboring
property.
(6) The use shall be compatible
with the surrounding area and not
10
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impose an excessive burden or have
a'substantial negative impact on
surrounding or adjacent uses or on
community facilities or services.
In addition, Code Section 41.052 recites the following standards,
all of which shall be met for approval of a conditional use:
(1) The use shall comply with the land use
plan and all applicable terms contained in
this development code, the building code; and
this Code of Ordinances. . ,
(2) Acceptable ingress to and egress from
the site shall be provided in a manner and
location which ensure optimum vehicle
maneuverability and.vehicular and pedestrian
safety. The number of ingress and egress
drives shall be the minimum necessary to
provide reasonable access to the site.
(3), Noise generated from the use shall not
unreasonably diminish the use, enjoyment or
value of surrounding properties.
. (4) The direction and glare 'of lights from
both motor vehicles and illuminating fixtures
on., the site shall not adversely affect the
use, enjoyment or value of surrounding
propert ies .
(5) Sufficient landscaping and screening
shall be provided to diminish noise, reduce
glare and buffer high activity areas and
objectionable views, including but not
limited to trash disposal facilities, such
that the use will not adversely affect the
use, enjoyment or value of surrounding
properties.
(6) Sufficient area shall be afforded for
parking in accord with section 42.34.
(7) The use shall be consistent with the
community character of the properties
surrounding the use. The criteria in this
subsection shall. be utilized to determine
whether the use satisfies this standard:
,(a) Whether the use is compatible with
the surrounding natural environment;
(b) Whether the use will have a
substantial detrimental effect on the
property values of the properties
surrounding the conditional use;
(c) Whether the use will be compatible
with the surrounding uses 'as measured by
building setbacks, open space, hours of
operation, building and site appearance,
architectural design and other factors
1.1
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which may be determined appropriate to
assess the compatibility of uses;'
(d) whether the traffic generated by
the use is of a type or volume similar
to traffic ge~erated by the surrounding
uses. ':I
Finally, the supplementary. standards by category of conditional
use contained in Section 41.053 set forth the following criteri~:
(33) Vehicle sales may be allowed within the
. . . urban center (core) districts, subject
to all of the following: .
(a) The outdoor use shall not adversely
affect the community appearance
objectives of the city. In particular,
no temporary buildings, portable
buildings, tents, stands, trailers,
vending carts or like building or
structures shall be utilized in
. conjunction with the use.
(b) The use shall comply with all of
the general standards contained in
section 41.052.
22. The Board's staff recommended, and the Board decided by
a vote of 4-1, that Nott failed to meet several of the
, .
requirements for approval of a conditional use. Nott appealed
under Code section 36.065(6), which provides in pertinent part:
(a) The hearing officer shall review the
record and testimony presented at the hearing
before the board and the hearing officer
relative to the guidelines for consideration
of conditional uses . . . as contained in
chapter 41, article II . . .. Although
additional evidence may be brought before the
hearing officer, the hearing shall not be
deemed a hearing de llQYQ, and the record
before the board shall be incorporated into
the record before the hearing officer,
supplemented by such' additional evidence as
may be brought before the hearing officer.
(b) .The hearing officer shall be guided by
the city comprehensive plan, relevant
portions of this Code and established case
, law.
(c) The burden shall be upon the appellant
to show that the decision of the board cannot
be sustained by the evidence before the poard
12
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and before the hearing officer, or that the
decision of the board departs from the
essential requirements of law.
In order to sustain the Board's decision to deny Nott's
conditional use application, it is only necessary for the
evidence to sustain the Board's decision as to anyone of the
several requirements for approval.
f)
23. Code Section 41.031(3) required Nott to submit an
accurate site plan with his application for conditional use
approval. Among other things, the site plan was required to
identify: (d) current and proposed landscape buffering, and
perimete~ and interior parking lot landscaping on the site; and
(f) the type and general location of the natural features on and
immediately adjoining the site, including significant natural
,...-."
\~) vegetation and areas covered by tree canopy. The site plan
submitted by Nott failed to meet these requirements.
24. Code Section 42.27(3) (a) requires that the proposed use
.1
provide a ten-foot landscape buffer along Cleveland Street and a
five foot landscape buffer along East Avenue. Nott's application
and attached site plan do not meet this requirement. Nott did
not show, at the Board hearing below or at the appeal hearing,
that he was able to meet the landscape buffering and other
requirements. It is unclear from the evidence whether Nott would
be able to install the required landscaping while still
maintaining required parking and traffic circulation. It is
possible that meeting the requirements of landscaping buffer,
parking, and on-site traffic circulation would necessitate
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removal of the large oak tree on the site; if so, a separate
permit would be necessary.
25.. Code Section 40.481, which created the UC zoning
district, stat~s in part: "The specific dev.elopment regulations
are intended to encourage planned development and revitalization
of the downtown area consistent with the "Downtown Redevelopment
. .
Plan" and the .Cityl s comprenensive plan. n '(Emphasis added.) As
found, t~e Downtown Redevelopment Plan makes improving the
i. appearance of Cleveland Street through land~caping and effective
use of open space a top priority.
26. The City's comprehensive plan provides, in pertinent
t> <
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. ~..:.
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part:
Goal 3. The character,of Clearwater as a
high quality, attractive environment for
resort, residential, and business activities
shall be enhanced and encouraged through
implementation of Clearwater's comprehensive
plan. .
*
*
*
'Objective 3.2 By 1990, the Planning and
Zoning Board shall specifically consider
consistency of the requested use with the
community's character when granting a permit
for a conditional.use.
There was evidence to sustain the Board's decision that Nett's
'application would not be consistent with the community character
of Clearwater, as reflected in the' City'S efforts to enhance the
urban center through the Clearwater Downtown Redevelopment Plan
and Design Guidelines.
27. The same evidence also supported the Board1s decision
that granting Nott's conditional use application would not be
"consistent with the community welfare" and "compatible with the
14
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surrounding areas," as required by the following Code Section:
41.033 (4)and (6); 41.052(7) (c); and 41.053 (33) (a).
28. Code Section 36.065(6) (d) allows the hearing officer
approve an application with such reasonable conditions as the
Board may have imposed. Nott suggests that his application
should be approved on the condition that he meet the landscape
buffering requirements under Code Section 42.27(3) (a). But it is
concluded that it would be inappropriate to grant the application
with those conditions in this case because no specifics have been
proposed, and it cannot be ascertained from the application, site
plan, and evidence presented at hearing whether the applicant
will be able to comply with the landscape buffering, parking, and
on-site traffic circulation requirements.
DISPOSITION
Based upon the foregoing Findings of Fact and Conclusions of
Law, the appeal is denied, and the Board's decision to deny
Nott's conditional use application is sustained.
DONE AND ORDERED this {~~ day of June, 1999, in
Tallahassee, Leon County, Fl 'd
ST N
Law Judge
ivision of A ministrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division~f Administrative Hearings
thiB ~ day of June, 1999. .
15
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COPIES FURNISHED:
L
Patrick'T.' Maguire, Esquire
308 North Belcher Road
Clearwater, 'Florida' 33765
Leslie K. Dougall-sides
. Assistant City, Attorney
,City of Clearwater
.. Post Office Box 4748
; . .Clearwater, Florida 33758 "
.Cynthia Goudeau, City Clerk
. City of Clearwater .
post"Office Box 4748
..,. Clearwater, Florida "34618
.j
NOTICE OF RIGHT TO. JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled
to, judicial" review by common law certiorari review in circuit
court. See section 36.065(6) (g), City of. Clearwater Land
Development Code. . .
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STATE OF FLORIDA
~
DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO. 99-1233
THOMAS 'A. NOTT,'
Pet! t!oner, .
.
..
" VS.
CITY OF CLEARWATER,
..
.. ' ,
, ;
. ;
. Respondent.,
, .
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* .:~ * :.* * * ** * * * * ** ** * * *
, ,
BEFORE:
DATE AND TIME:
J. LAWRENCE JOHNSTON
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MAY 6, 1999
1:00 P.M. TO.S:OO P.M.
'D & D REPORTING SERVICES
112,8. OSCEOLA AVENUE
CLEARWATER, FL
KIMBERLY S. HAMMOCK
NOTARY PUBLIC
STATE OF FLORIDA AT LARGE
D & D REPORTING SERVICE, INC.
915 CHESTNUT STREET,
; CLEARWATER, FL
I
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LOCATION:
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REPORTER:
727-468-2002
800-468-2003
D &.D Reporting Serv~ces
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A P PEA RAN C E S :,
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. For the Petitioner:
PATRICK.T. MAGUIRE, ESQ.
308 NORTH BELCHER ROAD
,
CLEARWATER,: FL 33765
, I.'
, . .
For th~Respondent:
LESLIE K. DOUGALL-SIDES, ESQ.
POST OFFICE BOX 4748
CLEARWATER, FL . .34-618.
t.
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I N D EX
. Witnesses .
Direct
Redirect
Cross
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D & D Reportinq Services
Recross
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19
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Marked for
Identification
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. Identification'
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. 68
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70
105
110
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HEARING OFFICER: For the record, weare here for
f",
2 the final hearing in the case entitled Thomas A. Nott,
3 .Appellant, v. City of Clearwater, Respondent, Division
4 of Administrative Hearing, Case No. 99-1233.
5 My name is J. Lawrence JollOston, the
6 administrative law judge who is assigned to sit on
7 this case as hearing officer on the City code. Would
8
,9
10
the parties make an appearance for the record at this
time.
MR. MAGUIRE: Ifm Patrick Maguire for the
11 . Appellant.
12
13
14
APPELLANT: Thomas A. Nott.
MS. DOUGALL-SIDES: Leslie Dougall-Sides for the
City, of Clearwater, along with Ralph Stone and Antonia
/ ~-
15 Gerli are the City's representatives for tOday.
16
HEARING OFFICER: Are there any prel~minary
17 matters that should be on the record?
18
MR. MAGUIRE: I believe so. It's a conditional
19 use denial under the City code. I believe it's one of
20 those highbred hearings that only the City of
21 Clearwater has.where there is new evidence and old
22 evidence and the record. Basically, it's almost a
23 semi trial de novo, but it's the intent I think of the
24 parties to allow those matters into consideration for
25 the administrative law judge.
I
D & D Reporting Services
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2
HEARING OFFICER: You may both proceed then.
MS. DOUGALL-SIDES: Yes, Your Honor, I did have a
3 couple of items from the record below. First, I have
4 a copy of a videotape from TV Channel --
5
6
HEARING OFFICER: Of the hearing?
MS. DOUGALL-SIDES: For you of the entire
7 meeting. I believe this is the first agenda meeting.
8
9
,
HEARING OFFICER: I have no objection to that.
MR. MAGUIRE: So that is the same as the audio
. 10 tape that I already have?
11
MS. DOUGALL-SIDES: Yeah. I also have one letter
12 . of obj ection that my notes reflect was submi'tted to
13 the Board at the hearing, but for some reason did not
()
14
make it into the clerk's file, and that WQuld be from
15 Trickel's Jewelers.
16 I had received a call from the Trickel's
17 'regarding their letter and asked them to provide me
18 with a copy.of what they thought they submitted, and I
19 actually got an original.
20 My notes reflect, and I think the minutes
21 reflect, that they were present at the meeting and
22 that they did submit a letter.
23
MR. MAGUIRE: They did appear at the meeting, as
24 I understand. This is supplemental to the things
25
they've already --
U'.
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D & D Reporting Services
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1
2
3
4
5
6
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8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
, 25
(
6
MS. DOUGALL-SIDES: Well, this would be a part -- ~
well, it should have been a part of the record below,
'but apparently did not -- it was circulated among the
Board members; however, the clerk's representatives
apparently didn't get it.
HEARING OFFICER: According to the rules of
procedure, what I am supposed to receive at the outset
includes the tapes of the hearing below, which I have
that tape, I'm receiving that. I will also receive a
videotape'which is being submitted. Also minutes of
the meeting, I believe that they are included, that
would be the March 2, 1999, meeting.
MR. MAGUIRE: Correct.
HEARING OFFICER: I have those minutes and any
exhibits that were presented at the hearing below.
MS. DOUGALL-SIDES: And you have -- I believe two
other letters were sent to you that were exhibits.
This would have been an additional exhibit.
HEARING OFFICER: I have three letters. One from
Mr. Nott and one from Mr. Mathiney (phon) and another
from Ms. Spicks (phon), so those are part of the
record and they are received. And I'm not sure --
MR. MAGUIRE: I have no objection to the minutes
of the March 1999 meeting or the Trickel's letter.
Apparently it just didn't make it into the clerk's
D & D Reporting Services
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, STATE OF FLOR~DA
DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO. 99-1233
"
" ,
~ . I <,:
'THOMAS ,A. NOTT,
..
.'
, "
Petitioner,
..
.
;'vs.
CITY OF CLEARWATER,
.
.
-.
.
.
, ":' :, Respondent.
.
..
* *. * * * * * '. * * * * * * * . * * *
~} \
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BEFORE:
DATE, AND TIME:
" '
LOCATION:
J. LAWRENCE JOHNSTON
MAY ,6, 1999
1:00 P.M. TO 5:00 P.M.
n & D REPORTING SERVICES
112 S. OSCEOLA AVENUE
'I
, '
CLEARWATER, FL
KIMBERLY S. HAMMOCK
NOTARY PUBLIC
STATE OF FLORIDA AT LARGE
D & D REPORTING SERVICE, INC.
915 CHESTNUT STREET
CLEARWATER, FL
727-468-2002 800-468-2003
REPORTER:
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D & D Reporting Serv~ces
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A P PEA RAN C E S,:
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For the Petitioner:
PATRICK T.MAGUIRE, ESQ.
308 NORTH BELCHER ROAD
CLEARWATER, FL 33765
i
,
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.
LESLIE K. DOUGALL-SIDES, ESQ.
POST OFFICE BOX 4748
CLEARWATER, FL 34618
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" For, the Respondent:
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Direct
Cross
Redirept
Recross
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HEARING OFFICER: For the record, we are here for
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2 the final hearing in the case entitled Thomas A. Nott,
3 Appellant, v. City of Clearwater, Respondent, Division
4 of Administrative Hearing, Case No. 99-1233.
5 My name is J. Lawrence Johnston, the
6 administrative law judge who is assigned to sit on
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this caBe as hearing officer on the City code. Would
B the parties make an appearance for the record at this
. 9 time.
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MR. MAGUIRE: I'm Patrick Maguire for the
11 Appellant.
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APPELLANT: Thomas A. Nott.
MS. DOUGALL-SIDES: Leslie Dougall-Sides for the
City of Clearwater, along with Ralph Stone and Antonia
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15 Gerli are the City's representatives for today.
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HEARING OFFICER: Are there any preliminary
17 matters that should be on the record?
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MR. MAGUIRE: I believe so. It's a conditional
19 usa denial under the City code. I believe it's one of
20 those highbred hearings that only the City of
21 Clearwater has where there is new evidence and old
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evidence and the record. Basically, it's almost a
23 semi trial de novo, but it's the intent I think of the
24 par~ies to allow those matters into consideration for
25 the administrative law judge.
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HEARING OFFICER: You may both proceed then.
MS. DOUGALL-SIDES: Yes, Your Honor, I did have a
couple of items from the record below. First, I have
a copy of a videotape from TV Channel --
HEARING OFFICER: Of the hearing?
MS. DOUGALL-SIDES: For you of the entire
-meeting. I believe this is the first agenda meeting.
HEARING OFFICER: I have no objection to that.
MR. MAGUIRE: So that is the same as the audio
tape that I already have?
MS. DOUGALL-SIDES: Yeah. I also have one letter
of objection that my notes reflect was submitted to
the Board at the hearing, but for some reason did not
make it into the clerk's file, and that would be from
Trickel's Jewelers.
I had received a call from the Trickel's
regarding their letter and asked them to provide me
with a copy of what they thought they submitted, and I
actually got an original.
My notes reflect, and I think the minutes
reflect, that they were present at the meeting and
that they did submit a letter.
MR. MAGUIRE: They did appear at the meeting, as
I understand. This is supplemental to the things
they've already --
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MS. DOUGALL-SIDES: Well, this would be a part -- ,~,
well, it should have been a part of the record below,
but apparently did not ~- it was circulated among the
Board members; however, the clerk's representatives
apparently didn't get it.
HEARING OFFICER: According to the rules of
procedure, wbat I am supposed to receive at the outset
includes the tapes of the hearing below, which I,have
that tape, I'm receiving that. I will also receive a
videotape'which is being submitted. Also minutes of
the meeting, I believe that they are included, that
would be the March 2, 1999, meeting.
MR. MAGUIRE: Correct.
HEARING OFFICER: I have those minutes and any
exhibits that were presented at the hearing'below.
MS. DOUGALL-SIDES: And you have -- I believe two
other letters were Bent to you that were exhibits.
This would have been an additional exhibit.
HEARING OFFICER: I have three letters. One from
Mr,. Nott and one from Mr. Mathiney (phon) and another
from Ms. Spicks (phon), so those are part of the
record and they are received. And I'm not sure --
MR. MAGUIRE: I have no objection to the minutes
of the March 1999 meeting or the Trickel's letter.
Apparently it just didntt make it into the clerk's
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HEARING OFFICER: I will receive that 'as well
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record.
3 an additional exhibit from the proceeding below.
4 Are there any opening statements before the
5 presentations?
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MR. MAGUIRE: I believe that would be
appropriate.
HEARING OFFICER: You may proceed.
MR. MAGUIRE: I would like to just briefly go
10 over ,the law and the backgroUnd of this case for the
11 '. Hearing Officer.
12 This is an application, and I will limit myself
13 to those things that are at issue. I can even
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expedite some things, such as pictures drawn of the
15 property area to help the Hearing Officer orient
16 himself to those things. I don't think there is going
17 to be a great deal of things.
18 We have some photographs that are self-depicting,
19 but I would like to kind of orient the Hearing Officer
20 with the scope of real life in Clearwater, which is
21 the background for the entire case.
22 We have a zoning application for a conditional
23 use for vehicle sales in the Urban Core District in
24 the city of Clearwater. Vehicle sales are an
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appropriate conditional use under the Development Code
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1 Section 40.485. ,.-.....
2 I have a copy of the Land Development Code. It's
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Section 40.483 and the following sections. It's actually
40.485, subsection 2, subsection 0, under vehicle sales.
HEARING OFFICER: It's actually the letter 0, not
6 the number O.
7 MR. MAGUIRE: Thank you. I would like to submit
8 ,tha~. If you don't mind, I would like to get some of
9 the'law into the record.
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MS. DOUGALL-SIDES: That's fine, I have a
11 certified copy of that and other sections.
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MR. MAGUIRE: The organic law of Florida is set
13 forth in several cases. The first would be Rural New
14 Town v. Palm Beach County, 315 Southern Second 478.
15 The organic law of Florida establishes that once
16 an applicant has established his property otherwise
17 complies with the applicable zoning regulations, the
18 burden then shifts to the zoning authority to
19 establish a special exception disciplinary use. Under
20 the code it's recognized that it's a legitimate use of
21 property under that zoning district, subject to
22 Planning and Zoning or imposing certain reasonable
23 conditions.
24 In Rural New Town, the Court stated a special
25 acceptance of permitted use to which the applicant is
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entitled unless th~ zoning authority determines
2 according to the standards in the zoning ordinance
3 that such use would adversely affect the public
4 . interest.
5 In Naples v. Central Plaza of Naples, 303
6 Southern Second 423, the Court states that the zoning
7 decision with respect to a special exception can only
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be decided on the matters in the zoning code. It
can't be something extemporaneous. There has to be
~o r some measurable standard against which the action that
11 . the Board had taken can be measured.
12 There's an interesting case and I think this will
13 be very helpful to the Hearing Officer, Nostima (phon)
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v. Clearwater, 594 Southern Second 779.
HEARING OFFICER: That name is familiar.
MR. MAGUIRE: In that the Court stated -- that
was a situation where they had an application for a
conditional use where the facial validity of the
statute was challenged because the language of the
land development code or the land us~ code was so
general of amorphus that the challenge was it was not
a measurable standard.
And the Court said no because there is other
language in the code to which the general day language
of the land use code applies is measurable.
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~at they stated -- the Court stated, the Second
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2 'DC stated, under the code section a request for
3 conditional use 1s to be approved if the use is
4 compatible with surrounding uses and does not impose,
5 quote -- this is from the Clearwater code -- an
6 excessive burden or having substantial negative impact
7 on surrounding or adjacent uses or on community
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8 facilities or services.
9 The Clearwater Code sats out the standards for
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approval. And later I will go through the comments of
the staff recommendation for denial in this case.
And there is nothing in this record. The record
13 ' establishes that my client f s property otherwise
14 complies with all the zoning code requirements.
15 There is nothing that the City can point to that
16 it doesn't comply with, that arguably the landscaping.
17 However, in one part of the staff report -- on paqe 4
18 of the City staff report, it's entitled the
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Memorandum,' I guess. It should be part of your
packet.
on Page 4 -- Page 3 under General Standard I,
there is a bold, open paragraph, and in the middle of
the next paragraph it states, I1The applicant has an
existing building which is currently used as a skate
shop compliant with the building code and site plan
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and use standards that have been reviewed prior to the
applicant's obtaining an occupational license for the
skate shop.1t
This'site complies. As we go through this I
think you will see that the traffic engineer says
ingress and egress io acceptable. The parking is
sufficient.
They say that the code requires a landscape
buffer of 10 feet along Cleveland Street, but here
they say there are no other site plan xequirements.
The question is not the site itself, because there is
no modification to the site being proposed here. It's
just a change of use. The code continually talks
'about changes of use and will there be a substantial
detriment to the surrounding properties in values.
We contend that following the presentation the
Hearing Officer will have to conclude that this site
is sufficient from the standpoint of the code and that
the City simply by speculation, conjecture and without
any competent, substantial evidence denied my client
the use of his property for vehicle sales.
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My client
if you look at the record, my client
was willing to do anything reasonably necessary to
mitigate any problems, the lighting, noise, anything.
He asked at the hearing, tell me what I need to do,
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tell me how I can overcome supposed noise, glare,
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2 other things.
3 I mean, they talked in here -- I think only about
4 'as close as they come to a justification to denying
5 this application is t~ere is a potential for people
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revving their engines. My client is willing to
7 restrict his operation and has been willing to, but
8 the City is so predisposed in denying this application
9 that they never listened to him, never worked with
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him. He was willing to do things. At the hearing --
he did not receive the staff recommendation until the
night -- the day before the hearing.
He knew there was a problem with landscaping.
This is what he brought to the hearing. Palm trees
were added, landscaping, planting the existing buffer.
Now, what's interesting here my client was only asking
to use 121 square feet of this building for his
office. I mean, hets pretty much just a broker.
He's willing to limit his sales to vehicles with
a resale price of not less than $10,000; displaying no
more than twelve cars; no windshield advertisement.
The only sticker on the car would be an FTC sticker,
and they say that this man does not propose to do
anything to enhance the downtown area.
If he puts in a lO-foot buffer setback, the
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oldest and biggest oak tree would have to come out in
order for them to meet the site circulation. Now, if
that's what they want, if they want the oak tree down,
and then they can put in the landscape buffer. But
the problem is no one in this City would even work
with this man to deal with this.
This property historically was a rental car
business, car sales business. My client came in and
renovated this building, upgraded. You will see that
he does a really nice job. . This part of the building
is a skate shop. The Pinellas Trail runs right here.
He has already invested money in this property
and enhanced the downtown. As a matter of fact, my
client was approached by the Downtown Development
Board, was encouraged to buy this property and
obtained an interest-free loan in order to remodel or
redo this property approximately four years ago. My
client has invested a substantial amount of money in
this property.
The City will say, well, anything downtown core
district should be pedestrian friendly or -- I like to
look 'at cars. My client's been in the car business
almost all of his life, his adult life. Pedestrians,
who better to look at cars and especially high-line
vehicles. He's not proposing anything that's going
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to -- when you see the picture of the properties that
surround this place.
We have a federal post office which stores
massive amounts of vehicles on their site. A terribly
run body shop and repair shop on the north adjacent
side. A jeweler on this side which doesn't have one
window on the side of the building, not one. There is
no glare, not even going 'to see it. Within just a few
hundred feet of this site is an automobile repair
shop, an Avis Rent-A-Car site. We have photographs.
There is -- the key to this is, one, what's a
lawful use subject to reasonable condition. My client
is .willing to limit the hours of operation from 10 to
5, six days a week, and the landscaping buffer if they
want, but that may cost an oak tree. But I'm not even
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sure landscaping was required for this use because t.he
landscaping under the code is such that it will
decrease the glare, noise and high activity levels
high activity areas. This is proposed to be such a
low activity lot.
My client's been 1n the car business for years.
By limiting the types of cars -- they call them "buy
here, pay here" type lots. We just want to make sure
that that is not the kind of use that's ever put on
this site. He's a car broker. He likes to deal in
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high-end cars; that's his avocation a~a young man was
cars, and it's become his avocatlon. He simply wants
to be able to operate and display high-end, high-line
vehicles on this site as part of the downtown area.
That is not inconsistent or incompatible with the
other uses that surround him or are adjacent to this
property. And the City has not by any competent"
substantial evidence been able to show that he's not
entitled to do this.
There is a legislative act the City of
Clearwater says vehicle sales of appropriate
conditional use, which means subject to reasonable
condition. The City did not even propose one
condition.
They failed in their -- I guess it can only be
described as non-feasance because it is a lawful use
and it was up to the City to propose this, this, this.
My client doesn't have to come in -- he can come in
with his proposal and this is ultimately in the
hearing is what his proposal was. Do some additional
landscaping. He's willing to do a number of things.
No display of vehicle sales along Cleveland; any
vehicle display would be'along the front of the
building and along the east side only. But in
desperation my client -- and you will see it in the
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minutes, tell me what you~want me to do, how can I
make it better. I've already put a substantial amount
of money into this property. Tell me what you want.
The City did not do that. I've never seen where
ther~ wasn't" in a conditional use application, Borne
sort of statement as to, well, we need this or, well,
we need that, and we need this. Nothing like that
happened. The City by not acting has abrogated their
right to impose conditions. But my client is willing
to do'that. I think it's up to the Hearing Officer to
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12 'which we ~re bringing in today are reasonable
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conditional use of the land code. My client is
entitled to the zoning approval. Thank you.
HEARING OFFICER: ' Your opening statement.
MS. DOUGALL-SIDES: This is an application for an
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outdoor used car sales lot. There is an existing use
or business on the property, that being the skate and
bicycle rental business which has existed for
approximately a year or a year and a half. Now, that
was an existing retail use, and it does not trigger
any additional code requirements. In other words,
23 there had been a retail use in that structure for many
24 years past.
25 So when the applicant came in for an occupational
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license, i~ was fora skate and bicycle rental
business. However, when he came in for a second and
really wildly different use on the same property, the
City's position is that that triggered both the need
for this conditional use application and,
additionally, kicked him back into having to comply
with the current 1999 code requirements, including
landscaping requirements.
And we'll be submitting Section 42.27, the
landscaping standards as an exhibit and that does
require a 10-foot buffer along this particular roadway
of Cleveland Street. So that was one respect in which
13 . the applicant had not met the code requirements which
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one of the code requirements was for a conditional use
approval.
I disagree with Mr. Maguire that the conditional
use is a permitted use. There is a category of
per.mitted uses on the property in our zoning district
categories, and there are conditional uses. If the
conditional uses are -- if you can meet the rather
many criteria that are set up for this, then you can
obtain them. I think it's the applicant's duty to
23 ,prove or to show the Board that it meets the
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conditional use. Itts not the Board's duty to say it
has not met the conditions. The burden should be on
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the applicant. And the cases that are cited are all
pre-Snyder cases. I think the fairly debatable
standard is no longer an applicable standard to go by
in reviewing this -- that's in circuit court.
We will present testimony by the planner who
prepared this for the Board as well as the planning
director. They feel that the conditions were not met.
In particular, there are three different code sections
that we will be presenting. Two of them have general
standards for approval and the third' is specific by
the category of the conditional use.
The staff report and the testimony will be that
the applicant didn't meet several of these conditions.
First, it wasn't consistent with several conditions of
the planning. Secondly, it didn't meet the City code
because it didn't provide the landscaping buffer
that's required by the code.
Third, it was not consistent with the community
character of the surrounding property. And fourthly,
it did not -- if it,did adversely ~ffect the community
appearance objectives of the City, and those
objectives were approved by the planner, those who
designed the guidelines in the downtown area, which
are not part of the code, but have been adopted
pursuant to the code. And by looking at the downtown
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plan which has been approved by the City.
Now, there were three letters of objection and
the testimony of one objector at the hearing alone
no letters or testimony waG received in support of
application. Mrs. Trickel, I believe, testified in
her lay opinion that the installation of this use,
would lower her property value which is worth some
weight in testimony.
The applicant, I disagree with Mr. Maguire, that
the applicant was asking what he could do to make the
project work. I think the record shows that he was
not willing to modify the application to meet the
landscaping criteria or to satisfy the concern that
the Board had expressed. He submitted'an application
that had a sketch which he drew himself which is fine.
It showed no landscaping 'or no changes to the property
at all, just placing these used cars at the front of
the lot and conducting these sales activities. He did
bring the one rental receipt for the Board today to
the hearing and he showed that to 'the Board. The
staff did not feel -- I mean, it's hard to evaluate
that without a site plan drawing of the landscaping,
but I think the staff stated that they felt it still
did not meet the code as to the shrubbery and buffer
that was shown.
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There was never a site plan submitted to the
Board that would depict that in a site plan format on
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that he was not going to do anything further than what
is reflected in that rendering. So he was not
particularly cooperative at time of the hearing.
It says the decision was supported by planning,
review and testimony. It doesn't meet the code
criteria that I have mentioned. Further, that it's
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11 that particular area of Cleveland Street which the
12 City 1s attempting to redevelop pursuant to the
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downtown plan. The bUilding across the street, the
post office is in the national registry of historic
structures. In the rear there is some post office
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vehicles that are parked there, but we're Beeking to
improve the Cleveland Street corridor to improve the
facade along the corridor and along the street.
Another feature of the area is the Pinellas Trail
thatts along that intersection on the other side of
the street along that post office. In fact, the
Pinellas business is already on the trail. He rents
skates and bikes to those using the trail and the
planners felt that the used car activities and
possibly test drives and 80 forth would conflict with
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that use with his customers getting onto and off the
2 trail.
3 We feel that it's inconsistent with the
4 surrounding uses and with the community character and
5 we uphold denying the application.
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HEARING OFFICER: Okay.
MR. MAGUIRE: May I call my first witness?
HEARING ,OFFICER: Yes.
MR. MAGUIRE: I would like to call Tom Nott,
10. please.
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THOMAS A. NOTT,
12 WAS' CALLED AND AFTER BEING DULY SWORN, 'TESTIFIED AS FOLLOWS,:
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DIRECT EXAMINATION
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Would you state your name for the record, please.
A
Thomas A. Nott.
Q
Mr. Nott, where do you reside?
1540 Gulf Boulevard, Clearwater, Florida.
Are yo~ the applicant in this case?
Yes.
A
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How long have you been in the car business?
Forty-five years.
And how did you come to be involved in the
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After being married, I was a foreman at~National
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2 Seals -- Federal Mobile Bower Bearing, Incorporated. They
3 are in Ohio. I was the youngest foreman ever appointed in
4 that facility.
5 I became friends with the plant
6 superintendent and one evening during break he came to me
7 and said, What are your plans for the future with this
8 company. I said, Well, I'd like to be the best foreman. I
9 would like to move from second string to first string. I
10 would like to be the best foreman there. From there I
11 would like to move into the office and probably into sales.
12, He said, What's your intention about college? I said, I'm
13 married, I have two children. COllege was not in'my plans.
14 He said, If you do not go to college and graduate, you will
15 never get off the floor.
16 I said, Okay, I have a family, I have a
17 wife, what do I do now? I don't want to be a foreman the
18 rest of my life.
19 I concluded that if my advocation was cars,
.
20 which it was. I grew up around them. I've been around
21 them all my life. I have a passion for them and a love for
22 them. I thought why not make that my vocation and spend my
23 life doing that. That's what started'me in the a~tomobile
24 business at about 23 years old, and I have done it ever
25 since. I did it prior to that as a family matter, but not
o & D Reporting Services
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aB 8 way to make a living. That'B~how I got started in it.
Q
How did you come to' purchase the property which
3 is the subject of today's application case?
4
'A
The basics of that property were I went to
5 Dunedin and had intended to open a skate shop in Dunedin
6 because it has a more interesting downtown. It is much
.7 further along with development downtown, and it appeared to
8 me as though a skate shop would be more viable there. I
9 should preface that by saying that my son and I own the
10
shop. We have 'had businesses
the skate shop business
11 started on South Beach in Miami. So we were at that point
12 very knowledgable. She mentioned we've been in business a
13 year and a half.
. \
t...._/,
14
I find it interesting that her research is so
15 short in that we've been in that business three and a half
16 years, number one. Number two, it was a conditional use
17 then. We had to apply for conditional use for skate
18 rentals and bike rentals. So it has been through a
19 conditional use process before. But anyhow, back to the
20 building itself. My brother-in-law was familiar with the
21 building., Pinellas Trail was proposed to be completed
22 three years ago in downtown Clearwater. That was -- the
23
24
25
Redevelopment Board said, this is eminent, this is going to
happen, dah, dah, dah, dah, dah.
I said, well, you know, what other things
o
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24
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1 are happening downto~, I said, you know, to buy a
2 stand-alone building and to put a skate shop in with the'
3 kind of volume you have to do is not a bright decision.
4 My brother-in-law showed me this building.
S The use had already been in place and was consistent with
6 my history. My personal history beinq if I don't make it
7 in this skate shop, can I sell cars out of here and pay for
8 the property.
9 0 What do you mean by history of the property?
10 A First of all, it had more than one business in it
11 prior to the demise of the property in that the business is
12 all worn out. It had a car rental agency in it. It had a
13 couple of them. It had I don't remember, All American
14 is one name that pops into my mind and one other time there
15 was an international chain in there, but I don't remember
16 'who that is. And at that same time it had a stereo shop.
17 This was a multi-use building. So I'm going, okay, this
18 makes sense. It's my background. If I don't make it in
19 the skate shop business, I can sell cars here. So anyhow,
20 I met with -- I was -- and I don't know how I got Peter's
21 name, but the City's -- whoever directed me to Peter Gaza
22 (phon) at the time. He was the person in charge. His
23 position has been disposed of and I guess Mike Roberto now
24 takes that responsibility on. But at the time it was it
25 was his job to redevelop downtown. He was the person that
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I und~rstood was in charge of the direction it was going.
2 He said -- he suggested -- when I use his name, I don't use
3 it to blame him for anything. It's just -- it was a source
4' of information as to what was happening. It was the only
5 real source I had.
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6
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8
9
10
11
l2
13
14
MR. MAGUIRE: One of the problems in this is my
"
client. was given ten minutes to make his presentation
in front of the Board which is not a particularly long
period of time to,develop the case for the record. I
apologize if we go on, but it's just not -- he never
had an opportunity to present his case or his
application with any --
HEARING OFFICER: We can address the application
process later.
15 BY MR. MAGUIRE:
16
Q
So who approached you about redeveloping the
17 property or who encouraged you to redevelop the property?
18
A
Peter Gaza said we can get you an interest-free
19 loan, we can get you site plan developments. We can get you
20 this, it will cost you nothing. And if you are renting a
21 site, part of what you have to do if you rent is put in a
22 condition to use it as a business. So if you can get an
23
24
25
interest-free loan that accomplishes the same thing and you
can buy a building that you can use for something you have
done all of your life, you've got all of your bases covered
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D & D Reporting Services
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26
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and you don't stand to lose the property. I paid cash for
the property.
o You purchased the property?
A 'Right, on that basis.
o But now you put some of your money into it?
A Well, I put -- we borrowed $50,000 which we are
still paying on and put at that time an additional $30,000
in the building and have subsequently put probably another
15 to $20,000 into the property.
Q So you worked on restoring the property,
restoring the building?
A It was horrible. When I got there, -the building
was literally falling down. I don't mean the cement block
structure, but the windows had to be replaced. There were
two toilets on the outside facing the post office that is
. on the historic register now, and it had homeless people
sleeping in it, peeing in it. In other words, just gross.
You know, just about -- it was so bad that I looked at it
'and I thought, do I really want to do this. And then with
the conversations with Peter, it was ~ike, well, this is
happening~ The .trail is coming through. This is something
that is good for downtown, so the investment seemed
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o Do you feel that you have enhanced and
contributed to the development and restoration of downtown
D << D Reporting Services
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I'm going to show you a picture. Let me for the
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through your actions? '
1
2
3
A
I think that's an understatement.
4 hearing officer, we have a -- this is out of the record.
S What I have done is we have some photographs that are pink
6 in number or yellow in number and a number would correspond
7 to the lot in color so they can orient yourself to the area
8 around the property. l.m going to show you two
9 photographs. Can you identify these, please.
10.
A
Those are what the building currently looks like
11 inside.
'.
, .-.,.,)
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12
13
14
o That.s the skate shop operation?
\ .
A Yes.
(Appellantts 1 was marked.)
15 BY MR. MAGUIRE:
16 0 And those are -- this is, going to be a composite
17 exhibit. I have a smaller one of these for the record with
.-
, .
18 photographs, but that will be Appellant's Composite 1 will
,19 be all of the photographs. That's your current shop
20 operation?
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21
A
Yes. It's a little more sophisticated look than
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22 those two pictures show, but that's essentially -- that's
23 an indication of what we have there. There's extensive
24 aluminum work. It was lots of money to have the cabinets
25
made, a lot of money spent inside.
()
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1
Q
I am going to show you three photographs and I am
-
I ,
,
2 showing you two right now. Can you describe those for the
3 hearing officer, please?
4
A
Those are -- it's really interesting what the
5 district is compared to where we started, but these are the
6 outside of the current business that has been suggested
7 ,does not enhance the downtown and that I haven't done
8 anything to improve the property. One of the obvious
9 things that it points out is that ther.e's an oak tree that
10 I,lve, over the last three years, spent about a thousand
11 dollars on trimming it to maintain it, so it doesn't fall
12 down and so it still stays there. And it was my attempt to
13 continue to keep a tree in downtown Clearwater. I could
14
have cut the tree down. It's a pain in the neck. It's
15
dirty and, you know, it has
I don't understand oak trees
16 very well, but they seem to go through a process every
17 month and drop something allover everything. I drive a
18 Dakota convertible truck. It's a little weird, but it's
19 consistent with who I am. And I'm aware of that dropping
20 eve~thing because I have to put the top up all the time,
21 but anyhow that's what we're up against.
22
Q
These are two photographs showing the front and
23 side of the building. Can you identify those for us.
24
25
MS. DOUGALL-SIDES: Could we state when those
were taken.
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MR. MAGUIRE: Those were yesterday.
2 BY MR. MAGUIRE:
3
A
This represents another photograph of the front
4. of the building, of the front of the property. And this
5 particular photograph was taken the same day that the
6 photograph was taken that was used by Shepper Studios.
7 You'll notice there is one more vehicle in there. When the
8 vehicles were put across the front of it, it wasn't done
9 because that's what was intended as far as the display of
10 cars. It just so'happened on that day there were cars
11 parked there. So it just made it clearer to see where
12 everything was. That's'where customers would park.
13
14
15
16
There appear to be three cars along the front of
Q
this property. Those are customer cars, correct?
A
Yes.
o
I guess we could probably note these as a
17 sequence to it. That might be a good idea, the interiors
18 shots.
19
20
HEARING OFFICER: Since this is Exhibit 1, we
will call it letter a two. Interiors are letters A
21 and B and then the next two photos will be C and D.
22 Those are the exteriors.
23 BY MR. MAGUIRE:
24
25
This would be the next letter. There are three
o
cars shown across the front of that property closest to
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1 Cleveland Street. Do you intend~ to display cats right on
2 Cleveland Street?
..--,
3
4
A
No.
Any display of vehicles would be whe~e on this
o
5 property?
6
In front of the building and on the ~ast side
A
7 along the east side there's a bannister or whatever along
8
9
there.
.0
I'm going to show you a series of four
10 photographs. If you will just identify what property that
11 is and where it is in relationship to your property?
12
A
That's the post office. The picture was taken
13 'from our property faCing the post office and between that
14
property is a railroad tracks. There is the parking
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15 facility for the post office. That is behind the post
16 office, the parking facility and so is that.
17
So these are immediately adjacent to your
Q
18 property?
19
20
Yes, across the street.
A
Q
These will be four. The next four in sequence
21 would be the post office ~roperty.
22
23
24
25
MS. DOUGALL-SIDES: When were those taken?
MR. MAGUIRE: Those were yesterday.
MS. DOUGALL-SIDES: Do you know what time?
MR. MAGUIRE: That would have been at: 5: 30,.
D & D Reporting Services
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o
I'm going to letter this one J. Photograph J,
CJ
1
HEARING_OFFICER: These are F, G, H, I.
2, BY MR. MAGUIRE:
4 what property is that?
5 A 'That's a property right behind my property.
6, 0 That would put you on the north side?
7 A Yes.
8 Q What activities occur on that site that you have
9 observed?
10
A
Auto, large truck, boat, at one time City vehicle
11 repair, body shop, painting. They rebuild vehicles -- they
12 take an Army Jeep. They buy it ,from the federal
13 government. They tear it apart. ,They refurbish the frame.
~..~............
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They put a new fiberglass body on it and reconstruct a
,
15 brand-new vehicle and acquire a brand-new title for it.
16
o
Do the operations on that property in your
17 opinion diminish the value of your property?
18
19
A
Grossly.
I believe in that photograph you can see the west
Q
20 side of your building, is that correct, in th~ right of the
21 photograph?
22
23
24
25
A
Yes.
MS. DOUGALL-SIDES: Can we state whe" those were
taken?
MR. MAGUIRE: That was last week.
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1 BY~. MAGUIRE:
2 Q Photograph K. On the right-hand part of the
3 photograph right of the telephone pole, is that your
4 property?
5 A Yes, it is.
6 Q Is there an adequate area there for you to store
7 and display vehicles tha~ you have for sale if you desire
8 to?
9, A. Plenty of room.
10 Q On the left of the pole, is that also that
11 property we just discussed in Photograph J?
12 A Yes.
13 Q Do you recognize this property?,
14 A Yes, vaguely, but having gone up and down the
15 street I recall seeing it. I don't know it as well as the
16 other properties.
17 0 But that's in your neighborhood, is that correct?
18 A Yes.
19 MR. MAGUIRE: Photograph L, hearing officer, that
20 is 12 Pink on this photograph in re1ations~ip to the
21 subject property.
22 BY MR. MAGUIRE:
23 Q I will show you photograph M and there is
24 primarily a white building in that photograph. Is that
25 part of --
0,
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D & D Reporting Services
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1
ThatlB part of the sarne repair shop that we have
A
2 been discussing_ That has the truck and the boats and the
3 vehicles parked, and that1s behind Trickel's Jewelers
4 parking lot.
5
That's to the north of your property and to the
Q
6 east?
7
8
9
10
11
12
A
Yes.
Q
A
On the east of your property is their bUSiness?
Yes.
Q
What is the name of that business?
A
Trickel Jewelry.
And Photograph M, is that the side of Trickel's
o
13 Jewelers that abuts your property?
14
15
16
17
A
Yes.
Q
Are there any windows whatsoever?
"
MRS. TRICKEL: May I see that? That is my
property. No, there is no windows in that property
18 except in front which abuts Cleveland because it is a
19 'jewelry store and that is my property.
20 .
HEARING OFFICER: I understand that, but this
21 witness is testifyi~g about his knowledge and you may
22 at some later point --
23 BY MR. MAGUIRE:
24
25
There ,are no windows on the west sid~ of the
o
Trickles' property, is that correct?
D & D Reporting Services
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34
A
That's correct.
/""-.
Q
I'm going to show you a picture lettered 0 and is
3 taken from your property?
4
5
6 correct?
7
'8
9 Rental Car?
I ,
10
11
12
13
14
A
Yes, it is.
On the left side you see the front of TrickIest,
Q
A
Right.
Q
I
And then towards the cen~er you can see Avis
A
Yes.
Q
And Angie's restaurant?
A
Yes. On this side is a Mercedes repair business.
Q
Mercedes-Benz Repair shop, all those --
Which is across from the City building. Not this
A
15 City building, the other City building.
16
17 site?
18
19 here.
, 20
Q
How far is the Avis Rent-A-Car business from your
A
It would be on this corner. This is our property
o
Let me show you photograph P. Is that the Avis
21 Rent-A-Car business?
22
23
24
A
Yes.
Q
That is how it appears generally day to day?
Yes. A photo similar to that was submitted to
A
25 the City by me.
(
D & D Reporting Services
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I'm going to show you photograph letter Q.
A
Yes.
o
In the center of that picture there lS a number
4 20 on the building, I believe?
5
6
A
That's the Mercedes repair shop.
What activities are conducted there tram your
Q'
7 observation?
8
9
10
11
A
They repair cars there.
Do they also sell cars there?
I don't know the answer to that.
Q
A
Q
That would be R, photograph R. Is tQat a Myrtle
12 Street picture of the Mercedes repair shop?
13
14
A
Yes, it is.
Q
~ will show you photograph S. Is th~t the back
15 of the Mercedes repair shop?
16
17
18
A
Yes, it is.
o
Let me show you Photograph T. What ts th~t?
Well, it's another repair shop. As X recall
A
19 that, I believe, Avis is here and I think there's like a
20 vacant lot and then behind that really would.QQ kind of
21 back in the alley. This is Avis. I believe this property
22 then 'sits right here.
23
24 property?
25
o
In that vicinity within 500 feet of your
35
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Yes, it's certainly within 500 feet.
D & D Reporting Services
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9
HEARING OFFICER: That means these number~ are
inaccurate on the back of it.
MR. MAGUIRE: Those numbers will correspond to
the lost numbers that's 11, 12 and 13 herQ?
HEARING OFFICER: The other numbers?
MR. MAGUIRE: .The one with the red c!rcle would
be Avis, and it's not the greatest picturQ, but if you
looked at the Avis picture --
HEARING OFFICER: I understand that~ I actually
10 think the witness' testimony was that thi$ would be
1l lots 14 and 15.
12 BY MR. MAGUIRE:
13
14
It may well be.
It's my belief. I've not carefully put that in
Q
A
15 my mind, but that's where I believe it is.
16
I will show you a picture. Can you identify
Q
17 that, please.
18
That's taken from across the street, actually
A
19 probably it would be back toward the post office corner.
20 There's a motel, a bicycle shop --
21
,Q
That's the property directly across the street
22 from your property?
23
24
25
Yes.
A
~
And photograph V is also that same bUilding?
A
Same, yes.
D & D Reporting Services
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37
.~
1
1
Q
Do any of the rooms in that motel op~n'up or
2 their windows, are they opening'up on your property or do
3 they open up to the east?
4
5
A
They open up to the east.
So your property does not face any r~sidential
Q
6 rooms in that motel?
7
8
A
Correct.
Q
This is Photograph W. Can you describe what's
. 9 depicted there?
10
A
It woula be a shot heading east on C~eveland
11 Street, and in it you see,Trlckel's Jewelers, ~dy's, Avis.
12 You can see the co~ner here of what ,is already zoned as a
13 used car business, and I just heard Mr. Johnson, a local
::=> 14, attorney, on behalf of Walgreen's for a sign v~riance and a
15 setback variance so that cars could be parked on Cleveland
16 Street.
17
Q
Are there any landscaping or setback~ on the
,18 Trickel's Jewelry side?
19
A
No. That's partially why in the beginning, aside
20 from not getting the code information, that I aidn't think
21 to present the information. I would like to get to the
22 code question before this is over.
23
24
2S
o
DO those photographs fairly represent the
, ,
neighborhood and uses surrounding your property and
adjacent to your property?
u
D & D Reporting Services
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A Yes. And act;.ually you're being kind. There were r'\
other photographs.that depict even worse things. Behind
Avis' there's a horrible situation. There is a barber shop
back there, it's a horrible area. The photographs are
generally kind anyhow.
Q Are you willing -- was it ever proposed or
suggested to you by the City that if you put in a 10-foot
landscape buffer that you would get your conditional use?
A No.
I Q Can you describe the contact you had with the
City in making your conditional use applicatio~?
A Sure. Let me preface it by saying I have no
experience in doing any of this. So when I went to do it,
if you will, I had no idea what to do, where to go, who to
see, what to ask, how to approach anybody. I didn't know'
politically what's correct. I didn't have any notion what
to do. I moved here on December the 28th. On January the
4th I applied for an occupational license and I won't go
into the reasons.
Anyhow, I was told that that site that usage
would be a conditional use. I said, okay, what does that
mean. It means -- and I was told that it means, that you
will have to understand code -- no, I wasn1t told that. I
was told it was a conditional use and you had to go through
the process. I would have to submit a site plan. So
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anyhow, ! said, well, okay, that's not a problem. I will
39
2 submit a site plan. You don't have to be a rocket
3 scientist to measure something for a site plan.
4
5
6
7
o
Was your site plan rejected?
No, it was not.
A
o
Was it processed?
Yes. But more specifically related to that, not
A
8 knowing anything about it, I asked, please give me the
9 codes. I didntt ask for ,specific codes. I didn't really
10 know what to ask for. I'm not familiar with this. So
11' ba~ically what happened is, as I asked for codes there were
12, a variety of conversations. I had a lot of trouble landing
13 a person. I ended up with Senta McCall who is a very nice
o
14
lady, ,and I discovered in speaking with her that she had
15 been recently hired, had never been througll this process
16' before, did not know or understand the City codes and this
17 was her first application ever. And I sort of weighed that
18 and I thought, well, maybe that's a benefit. She'll have
19 to work harder to find everything out.
20
Anyway, to make a long story short. I needed to
21 get this in by the 12th. I needed to get my proposal or
22 application or whatever it was, in by the 12th of January
23 in order. to be on the docket for probably the first part of
24 February. And since I was anxious to get on with this, I
25 got on with it. And Antonia can verify that at that point
o
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I did not get a complete set of code information. I just
I~
2 simply didn't. I was given parts and pieces of it. So
3 after I made my application and gave them my drawing, and'I
4 must tell you that Santa helped mewith'the drawing.
5 The first drawing I took she said, that's really
6 very, very bad. That's very prelimi~ary. The City really
,
7 would like to have it a little better than that. So I made
8 sure that to the best of my ability -- and I did qualify
9 this and it1s in the video tape. I did use a 70 cent ruler
10 made in China to draw scales. So I did explain that I
11 might be off a little bit because it was done to scale. I
12 ,could recognize that this is not rocket science. So I did
this. After I submitted this I felt
started to feel
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very uncomfortable with the comments I had heard.
--
o
Did you hear any comments from any of the City
16 staff during this process?
17
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'A
I did.
Q
Such as?
A
Specifically, the comment was by staff member,
20 was that you will never get this approved. ~ike Roberto
21 hates used car dealers on Gulf-to-Bay and wants them all
22 gone. I don't take that personally. You know, Mike
23 Roberto doesn't know me.
24
25
Q
Who is Mike Roberto?
A
City manager. I should point out -- I just let
la.
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it go. I had already submitted my application anyhow. So
2 as I started the process, I started to feel like -- well, I
3 learned one other thing after doing this. I learned that
4 had I submitted this application approximately ten days
5 later there would have been no discussion about this. I
6 didn't know this at the time I did it, but it turns out
7 that the codes were changing and that in a week or ten days
8 from that -- around the 12th of January the codes were
9 going to change. I was not aware of that when I applied.
lO I just -- as being a 'student I should have been aware, but
11 I wasn't. I just didn't think about it.
12
Q
Did you learn that the land development code was
13 changing and that this was not being used any longer
14
15
Yes, but I had already submitted this.
Did you feel that during your application process
A
Q
16 that the City staff was trying to delay your application or
17 not assisting you? Did you ever get that impression?
18
Yeah. I thought about that and I think it's a
A
19 combination of me feeling that way and simply not knowing_
20 I think it was just both things were running concurrently.
21Senta was no great bi~ help and I'm not sure she knew where
22 to find anything.
23
Did you get any phone calls from the City
Q
24 regarding your hours of operation?
25
Yes, I did. Senta called as a part of her
A
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process and said, What are your hours of operation going to
be, and I said, gee, I don't really know. She says, well,
it's part of the application, we should put something in.
And I said, well, then put in Monday, Wednesday, Friday
minimum from whatever I said, 12 to 5 maybe. I said if it
has it's like a blank, you can't leave that blan~. You
got to put something in it. So as a minimum I put that in.
It was stated in the
o What were the hours of operation that you had
'proposed to operate this business?
A Well, the maximum amount of hours, the maximum is
going to be from 10 to 5 six days a week.
o Monday through Saturday?
A Yes. The current business is open sQven days a
week from 10 until 8.
o Do you intend to do any windshield a6vertising?
A Absolutely not.
a What stickers, if any, will be involved in your
business?
A
Q
A
Q
A
to sell.
You have to have FTC stickers.
That's on the side window?
Yes.
Would there be any flags, banners, b,lloons?
No. They don't work on the kind of ~ars I want
D & D Reporting Services
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o Are you willing to limit the vehicles sold on ~he
property to any that have a retail value of $lO,OOO or
greater?
A The only thing I would like to change to that is
5 the NADA book values don't always represent real value.
Sometimes they are high, sometimes they are low. I would
like to put -- I would be really happy with saying there
would not be a car for sale that's under $10,000. I will
establish the value, but it won't be under $10,000. One
example would be an old Corvette that doesn't have book
value.
Q The vehicles you intend to sell, 'the retail value
is at least $10,000, right?
A Right.
Q How many vehicles would you hold in inventory on
the site for display or otherwise maximum at one time?
A Display maximum is about 10 or 12 cars. I'm not
likely to have more cars than that on a regular basis. I'm
likely to have less cars on a regular basis.
Q Would you be willing to, as part of a restriction
on this site, not have what's called a buy here, pay here
budget lot? What does a buy here, pay here budget lot mean
in the car business?
A Current -- many used car businesses that start
today do either budget, which means they stay at $3,000 or
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below or you can buy here, pay here, and ~he prices vary on
buy here, pay here because'you can sell the paper. If you
get customers with bad credit, they can buy a car from you
'on buy here and pay here, and if they prove that they are
capable and are willing to make payments, you can then sell
that paper and.get your money back and go on down the road.
Idon't have any interest in this.
Q . You aren't interested in financing cars?
A No. I have -- my interest is because it's an
advocation. I love --'
Q How old are you?
A Sixty.
Q How long have you been in the automotive sales
industry?
A I actually started working in an.daround cars
when I was fifteon.
Q What about sales?
A Shortly after that. I've sold cars all,my life.
Q The type of vehicles that you intend to display
and sellon this site, would they be attractive to
pedestrian users of downtown Clearwater?
A Yes. I don't know that everyone would want to
buy them. Everyone would want to look at them. They
are -- a likely car for me to have ia a BMW N-3
convertible. A likely car for me to have and I've owned is
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a Viper. A likely car for ~hat lot would be a Corvette. A
2 likely car would be a Miata or a Cadillac, a Lincoln, any
3 of the Volvo products, a Lexus. Those are all the types of
4 cars.
5
6
Q
Are you talking about high-line vehicles?
All high-line and the process of selling those
A
7 cars is completely different. I'm not -- I will not be in
8 the business of soliciting people to drive my cars to see--
9
You said you will not be in the business of
o
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10 soliciting people to drive your cars?
11
A
No. The cars will be guaranteed a hundred
12 percent. I'm not trying to sell people on why they should
13 have a Cadillac or why they should have a VolvQ or why they
14
should have any of, these cars. Certain cars I won't let
15 them drive.
16 If I've got a Viper, I'm not going to let anybody
17 drive it. The primary approach to selling is ~- I've done
18 this for 45 years. If you donlt trust me, you don't need a
19 car. If you agree that the car is acceptable, if you agree
20 that the price is acceptable, the process that I'll use is
21 IIIl tell them to take it home for two days or whatever and
22 drive it, and if they agree after that time that my
23 representation of car is in fact what I represent it to be,
24 then we'll conclude the business. But I am not interested
2S
in people driving 20, $30,000 cars just to see if they like
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1 . them. I hav~ a friend who does very much the Qame thing on I~
2 Clearwater-Largo Road. He doesn't even have a display lot.
3
Q
Are you doing more of an auto broker type
4 business?
5
A
Today shopping for a car is a pain in the neck.
6 It's no fun. ItJs one of the reasons that I moved away
"
8
9
from the retail automobile business. They just had an
articl~ in the paper where theiJ finance manager was
\
converting people from purchases to lease. I've been
10 around the car business. I don't like it. There are
11 people who have money that want nice cars. I don't want to
12 mess with that.
13
o
Are you willing to meet any landscaping
14 requirements of the City code?
15
A
As long as they don't ask me to landscape the
16 whole lot.
17
18
Q
What the code requires, if the code says?
~lliat the code requires, yeah. I'd like them to
A
19 be kind enough to be considerate with the other property
20 owners in my area. But, yes, the answer to your question
21 is yes. It states so on the tape.
22 Q What amount -- you've been in the automobile
23 business for forty some odd years. How much noise or glare
24 or activity would you expect on this lot with high-line
25
vehicles and 10 to 5 hours of operation? Are you talking
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,~ 1 _ about any type of substantial noise?
A No glare because it's daylight hours, number one.
Number two, minimal driving, minimal driving. I have no
interest in people riding around in my cars trying to
decide this is what they want. That's not my approach.
This is not --,1 do not have to do this as a livelihood.
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It is my desire-to do it to enhance my income, but it is
also as much of.a hobby avocation and interest. I have no
desire to sit on my deck and watch the sun go down everyday
and go, isnft that beautiful. It's beautiful once and it's
boring about the third time.
Q When you got -- when you put in the use for the
skate shop, did the City tell you that you needed to put
lO-foot landscape buffers in on Cleveland Street at that
time?
A No.
o When they gave you an occupational l~cense for
the skate shop?
A Yes.
Q Did you have to get conditional uses for that
skate shop operation?
A I have to -- I'm going to answer that question
yes, but my nephew is the one who applied for it, and I
recall only him saying that they had to go in front ,of the
Board and get conditional use for rental skate$. I don't
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remember about; selling. But when we wanted to rent skates,
r ..-...
2 he' had to go in front of the Board and get a cqnditional
.3 use for rental skates. That's been a little over three
4 years ago.
5
6
7
8
Q No one asked him to put in a landsca~e buffer at
that time, did they?
A
No.
Q
Are you going to let people come on four site and
9 rev the engines of your cars?
10
11
I'm"not going to ask them to do it.'
Recently were you approached by Flor~da Power to
A
Q
12 provide lighting for your lot?
13
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A
Yes.
/. ...~'"
Q
Did you call them?
I
, '
A
No.
Q
They called you?
They solicited.
I'm going to show you a faxed copy. Do you
A
Q
19 recpgnize that?
20
A
Right, that's what we needed to.agree to with
21 F~orida Power for them to put up some lights.
22
So Florida Power installed lighting on your
o
23 property, all you had to do was sign for it, is that
24 correct?
25
Yes. This has been done since this .pplication
A
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was made also.
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Florida Power did that?
Yes.
You recognize that as your signature on the
Actually, no, it's my nephew's.
That's his signature, but it's your property?
Yes.
But you're familiar with what occurr~d?
Yes.
This is Appellant's 2.
HEARING OFFICER: Received.
(Appellant's 2 was marked.)
BY MR. MAGUIRE:
Q! At any time in your application process did the
16 staff ever suggest to you certain hours of operation as
17 being reasonable and acceptable to the City?
18
19 with it.
20
No. They just asked me what I was gQing' to do
Were there any suggestions made to you by the
21 City as to what cond~tions would be acceptable to the City
22 for purposes of obtaining your conditional use?
23
No. In fact, ,the process was so laborious that I
24 wrote a letter to Ralph Stone and Mike Roberto saying what
25 is it that you guys want. Tell me, give me so~e hi9t, give
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me some idea. And I have the letters here. They were
,/----,
2 written on February the 13th, which is after my application
3 and about February the 16th is when I got a call from Senta
,
4 McCall offering to me a complete set of City code relating
5 to this type of business, and that's what created that.
6 The only thing I could find in the City codes that I didn't
7 need was potentially landscaping. So I addressed the
8 landscaping issue.
9
Q
You brought what's on the poster board,
10 Clearwater cars, an artist's rendering, showin~ some
11 additional landscaping?
12
A
Yes. It was in the meeting. It's part, of the
13 record.
~."""
14
Q
We have another copy of that and that would be
\
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15 that's three and that's what you had at the hearing?
16
A
Yes.
17 (Appellant's 3 was marked.)
18 BY MR. MAGUIRE:
19
Q
Well, I1d like to submit that as Appellant's 3.
20 That fairly depicts what you would be willing to do?
21
A
You know, really, I had intended to do it anyhow.
22 Because it's high line, because it,was the next stage, the
23 next phase of trying to improve the property, the looks of
24 it, I really just proposed what I had in my mind anyhow. I
25 did not know at the time what they needed.
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nave you at all times been ready, wi.lli~g and
2 able to comply with any reasonable conditions of the City
3 and number two, effectuate this conditional use?
4
5
A
Absolutely.
So as not to substantially devalue the neighbors'
Q
6 property or to interfere with the use or enjoYment of your
7 neighbors' property?
8
" 'A
Yes. It's funny because my neighbor is a
9 railroad track and a car repair and painting. It 'never
10 occurred to me that I was going to adversely affect a
11 railroad track.
12
13
14
Q
Well, you have this Trickel's property?
My neighbors' property is a parking lot and a
A
building with no windows. I don't affect that at all.
15 Nobody's there to see it.
16
Q
This will be Appellant's 4. This is just a small
17 version of the chart here that corresponds to the pictures.
18 That would be really part of the Composite is actually what
19 it should be.
20
HEARING OFFICER: It's part of number one.
21 BY MR. MCGUIRE:
22
Q
Have you made application to the state of Florida
23 Department of Motor Vehicles for operation of 0 used
24 vehicle sales at this location?
25
A
Yes.
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Q
And in order to get fiual approval of that you
,~
2 would need zoning approval from the City of Clearwater, is
3 that correct?
4
5
A
Yes.
Q
One of their conditions would be that no vehicle
6 display be directly on Cleveland, is that correct?
7
8
A
Right.
So you would be limited to the display of the
Q
9 vehicles to the front of building and to the east side, is
10 that correct?
11
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A
Yes.
HEARING OFFICER: What's the limitation with
that?
MR. MAGUIRE: Department of Motor Vehicles.
,
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15 BY MR. MAGUIRE:
.,
16
Q
So the State of Florida Department of Motor
17' Vehicles found that display an acceptable and reasonable--
18
A
Right. I did not know that specific information
19 until after this application was made. The only thing I
20 want to make absolutely certain of is tha~ from the get-go
21 I have no desire -- I have every desire to conform. From
22 the time of purchasing the property I have done nothing but
'23 ,improve it. I have never done anything that detracted from
24 downtown Clearwater. I was invited into this City as.a
,25 participant. I have spent a lot of money, a lot of time
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and a lot of energies towards my nephew. Had I gotten the
codes from the very beginning when I went in, I would have
been more astute at what I did in terms of having had all
of this. It wouldn't have been after the fact, I would
have made it a part of it.
Q How many square feet of the building are we
talking about you operating out of?
A It's 121 square feet.
Q And you're not proposing having any portable
10 I buildings or tents?
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A No, the code says you can't.
MR. MAGUIRE: I have nothing fu~ther.
CROSS-EXAMINATION
BY MS. DOUGALL-SIDES:
Q Mr. Nott, you previously stated you had purchased
the property several years ago?
A Yes.
Q But you were not involved with your ~ephew's
application for the skate shop business?
A When you say involved, what do you mean?
Q Well, you said he had applied, but you didn't
have any involvement in that process; you didn't attend any
hearings?
A My involvement? That's why I asked the question
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of 'what do you mean involved? I was involved in asking him
f",
2 to make the applications on my behalf and gave him
3 permission.
4
Q
But he actually made the application and dealt
5 with staff?
. ,
,
6
7
8
.9
'A
Yes.
Q
You mentioned a conversation with a man named
Peter Gaza, former employee of the City?
A
I don't know if it's the City. I ju~t know Peter
,;
10 Gaza's name and I know that again please recognize I do not
11 move in political circles. I make my living t.lking and
12 selling. I'm'not familiar with this. So all I know is he
13 ,was encouraging people for downtown. I got the notion he
14
was involved with the City, that the City had hired him.
,,--
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15 He seemed to know people and how to get these things done.
16 So thatts all I know.
17
Q
He did not promise you that you could have a used
18 car sales business on this property, did he?
19
20
21
A
I didn't ask him that.
Q
You mentioned --
A
Excuse me a moment if I could address t~at. I
22 was told at the time I applied -- this time that had I
23 applied immediately it would have grandfathere~ in and
24 there would have been no problem. I did try to do that
25 within that period of time.
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Who told you that?
Who told me? Who gave me that?
Q
A
.Q
Yes.
A
To put a name on it, I don't know because I've
5 spoken with Herb, I've spoken with Senta and other people.
6 I don't know, but I was told that had I done it immediately
7 it would have been grandfathered in. I just heard Tim
8 Johnson speak about the site on the other corner saying it
9 was graodfathered in as a used car business.
10
So you are saying that somebody told you that the
o
11 previous business maY,have been grand fathered to the skate
12 rental and possibly to used cars sales?
13
14
Not possibly. Specifically to used cars sales.
A
Had I at the time I purchased the property -- they said I
15 had twelve months. I had a little sense then because
16 when I say a little sense, not about that specific
17 property. I understand the basic nature of gr~dfathering
18 and that's why I started the process with Bria~. Brian
19 also took the same test I did with the division of motor
20 vehicles three and a half years ago to ~pply for the
21 license at that location because I wanted that process to
22 go immediately into effect.
23
24
2S
Someone mentioned to you a 12-month period?
o
A
That's what I recall.
o
You had mentioned that you plan to display
I
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vehicles -- I believe you said the motor vehicles folks
wanted it in the east and front, is that correct?
A Yes.
..~
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A
Front of the building?
Yes.
o . Your site plan that you had submitted to the City
does show a car display area 17 feet by 70 feet directly
next to the three-foot buffers on Cleveland St;eet,
correct?
A ' Yes.
Q And isntt that what you represented to the,Board
'that you would have cars displayed in. that location?
A Yes, ma'am.
Q And your graphics that you presented to the Board
does show some cars in that location?
A Yes, it does.
r'-....
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Q
And you also had a car display area on the east
18 part of property or actually it looks ,like two areas?
19 A To clarify this, when this application was made I
20 had not spoken to the Division of Motor Vehicles. They had
21 not told me that this was where the cars were so I was in
22 error in my application.
23
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A
Q
I'm just ~skinq what the application showed.
I understand.
Did the application show the display area on the
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east part of the property?
A
Yes.
Q
And did the application also show a car display
4 area on the western portion of the property?
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Yes, it did.
And that's the application that went before the
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Board, correct?
A
Yes, ma'am.
Q
You had showed us some pictures of various
. 10 businesses around your property or the communi'ty property.
11 You do not know the dates of the establishment of all those
12 businesses such as the auto repair, the Mercedes dealer and
13 so forth?
14
That's correct. Back to her first question I
A
15' just remembered something.
16
You will have an opportunity on any redirect.
o
11 The staff did accept your site plan and process your
.18 application, is that right?
19
They did not accept a site plan at first. Senta
A
20 said it was inadequate and that it ought to be better.
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You said she assisted you?
Q
A
She gave me some pointers on how to clean it up
23 and what have you.
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And then you resubmitted it to her?
Q
A
Yes.
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Q
Then'it was processed at that point, was it not?
,,..--...,
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Yes, it was.
o
You mentioned I believe that your car sales would
4 be -- the cars involved would be the value of above
5 $10,000, is that correct?
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20 to 30.
A
Yes, ma'am.
o
Do you consider that a high-line car?
That's a minimum value. High-line cars would be
You had'mentioned Cadillacs and BMWs I believe
11 and don't those cost a little bit more than ten?
12
A
If you look at the letter that was written to
13 Ralph Stone who is sitting next to you, it says it's 10 to
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$35,000.
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Ten to 35,000.
A
That's correct. We're trying to est~blish
17 something for the record as a minimum starting place.
18 We're not trying to be funny with it.
19
Q
Now, if I understand your testimony correctly,
20 the auto dealership office would be located inside the
21 structure?
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A
Yes.
o
And would the skate shop rental business also
24 continue to run its business on the property, ts that
25 right?
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A
Yes.
Q
Would the skate shop rental business also
3 continue to ~e located inside the same building?
4
A
There's a dividing wall. Yes, it would be within
5, the outside structure.
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Q
What do you mean by the outside structure?
Original outside structure ,of the building. When
A
8 this building -- it's been divided in years pa~t into
9 multiple store fronts. When the work was done, there was
10 an area left for me to do this in.
11
Q So you're in the shell of the buildiQg or the
12 outline of the building?
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A
Yes.
Q
Did you make that 'known to staff in ~our
15 . application process?
16
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A
Make what known?
18 the used car sales and that it would be inside that shell?
Q
Well, the fact that there would be an office for
19
A
It says proposed auto sales office right there,
20 is that what you are asking.?
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Well, I'm asking if you told them that --
Sure, because Senta asked, questions about that.
So that was with your information to her?
It's not -- not only is it in my information to
A
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her in conversation, it's written on the floor plan that I
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submitted.
o
Did you ever go to the City clerk's office and
3 request copies'of the portion of the City code?
'4 '
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A
City clerk's office what?
You had a lot of testimony about how you expected
Q
6 the staff to provide you with the pertinent co4es and you
7 didn't get the codes and then you wrote a lettQr regarding
8 not obtaining the codes and you finally got a packet of
geodes, right?
10
11
A , Okay.
,
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Q
Is it your testimony you expected th$ staff to
12, provide you with copies of all the pertinent -~
13
A
No, I asked. I didn't expect. I said, if you
.
14 have a request, then I need to be aware of eodQs and how do
15 I get that information.
16
Q
So you asked them to simply let you know of the
17 codes--
18
A
.Yeah. Would you copy the codes, te11 me where to
19 get the codes. Whatever the process is for someone to
2~ acquire the codes, tell me what it is.
21
Q
This would have be~n your first application for
22 development approval within the City of Clearw&ter that you
23 processed, correct?
24
A
It's the first one probably I've ever done in my
25 life.
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MS. DOUGALL-SIDES: I have nothing further.
3 REDIRECT EXAMINATION
4 BY MR. MAGUIRE:
5
Q
During the application process or your
6 discussions with staff or at the Planning and Zoning Board
7 hearing was there ever a ~uggestion that you s~ould
8 relocate the display areas that are shown on your plans?
9
A
No. In, fact, the display areas that are on the
10 plans are put there primarily to indicate that you can
11 physically get -- the issue that was brought to my
, 12 attention in the very beginning was parking and whether
13 there was physically room for all of this. That was the
, ~)
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only part and parcel issue that was discussed about zoning.
15 So when I allocated these spaces, quote, unquote, for car
16 displays, it doesn't have anything to do with where I
17 thought I might put cars. Specifically, it ha~ to do with
18 showing that I could, in fact, display cars and have
19 adequate parking. That's all that I was trying to show.
20
Q
And the City staff report found that t~ere was
21 adequate parking on this site for you to displ~y the cars,
22 correct?
23
24
A
Yes.
o
Is this a copy of the letter that yoq sent to Mr.
25 Ralph Stone with the City of Clearwater?
~ D & D Reporting Services
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~e8, it is. And there is one for Mike RQberto
also.
Q You sent this to Mr. stone during the application
process?
A Yeah. Just -- the letter is dated February the
13th, and that was after all of this had been sen~ in and I
had at this point not yet,had a complete -- not a complete
code. It's just the codes relatives to this. It's only
about
.
Q Did you ever get a response to this
correspondence from Mr. Stone?
A No. I got a call from Santa McCall. My
recollection is that she was responding on his behalf.
Q
'And what was that response?
"
A Come pick up the code information.
Q You did disclose to him at that time that you
were looking to sell vehicles from the 10 to $35,000 price
range?
A I've never hid anything. I've been very clear
about what 11m trying to do.
MR. MAGUIRE: Welve introduced this as
Appellant's 4.
HEARING OFFICER: Is there any objection?
MS. DOUGALL-SIDES: No objection, Your Honor.
HEARING OFFICER: Itls received.
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(Appellant's 4 was marked. 1
MR. MAGUIRE: Nothing"further, Your Honor.
, HEARING OFFICER: Any recross?
MS~ DOUGALL-SIDES: No, Your Honor.
HEARING OFFICER: Thank you. Any other evidence
from the Appellant?
MR. MAGUIRE: I would like to call Mrs. Nott to
the stand for a second.
JANICE NOTT,
WAS CALLED AND AFTER BEING DULY SWORN, TESTIFIED AS FOLLOWS:
DIRECT ExAMINATION
,BY MR. MCGUIRE:
o How long have you been married to Mr. Nott?
A Forty years next March.
Q Has he been able to provide you a gQod living
through operating and selling cars over the years?
A Yes, he has.
Q Have I ever asked you about what te~timony I was
going to ask?
A No, you never have.
Q, How would you describe your husband in his deals
in the automobile business?
A I would describe him as very gentle~anly. It's
D & D Reporting Services
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often said to him over the years, you don't look like a car
person. You don't.act like a used car person because he is
always very gentlemanly. ~ybody 1s lucky to do business
with him, particularly women who are quite frightened over
trying to buy cars on their own. I think 'he's an asset to
this area where he's doing business.
MR. MAGUIRE: Nothing further, Your Honor.
HEARING OFFICER: Anything?
MS. DOUGALL-SIDES: No cross, Your Honor.
(There was a discussion off the record.)
HEARING OFFICER: You say you have a
presentation?
MS. DOUGALL-SIDES: Yes, Your Honor.
HEARING OFFICER: Back on the record. For the
record it's been indicated that there is a member of
the public here that would like to comment on
proceedings and may not be able to stay until after
the City's presentation. So if you wish to, you may
at this time state your name and address and make youF
comment.
MRS. TRrtKEL: Yo~r Honor, my name is Lillian
Trickel. I'm at 714 Cleveland Street. I have been
there 53 years in downtown Clearwater. I'~ sorry to
do this, but the man has caused me an awful lot of
unhappiness with his skate shop, and he h~s not done
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because we just got rid of one across the street. The
property has been sold to Walgreen's for a drug store.
Now, the property that he has now at one time was
a filling station which goes back many, many years
ago, possibly 25 or 30 years, and then it was p car
rental place with a hot dog stand on one corner.
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too.much to the property. I believe what he did do
was the grant from the City. I do not think that it's
3 'helping our downtown any by putting used cars there
And he came in and he put this skate shop in, and
11 . if he just rented out skates, that would be'fine. But
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he has open house about once a week on Saturday where
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he invites all the kids in the City to come in and
they hoop and holler and jump and jump th~ fen~e and
jump up the side of my building and jump up the side
of the building in back of me, the white ,..- where the
micro place is and take my garbage cans apd set them
out in the back of the alley where I keep them in one
spot so that the alley is passable for ca~s because
cars come in the front 6ff of Cleveland Str~et and
when they go out, they go around the building to go
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I have spent an awful lot of money on my building
and especially on the empty lot next door and
landscaping, and I think for the fact tha~ the City is
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trying to upgrade the City, make it more beautiful, we
do not need a used cars on Cleveland Stre,t. Now,
that 1s the beginning -- Myrtle Avenue is the
beginning -- of the downtown tour, that's the
entrance. So I don.'t think we need a use4 car lot
there.
The skate shOp, if he'll just keep t~e noise down
-
and keep the kids off of there and keep them from
jumping off of the fence and all of that. I posted a
sign up, no skate boards and no line skates allowed.
Parking only for Trickel's Jewelers. It ~idn't do any
good., They hung a coat over it one day an,d just was
running up and down skating in my -- I we~t OU~ there
and I said, please, can't you read. I said, this is
posted. No skating allowed in this parking lot. Oh,
well, we'll leave, so they did. But the n.ext day, the
next time they came back again.
So I've had to put up with that ever since be's
been in there. And personally, if he'd like to put in
a new asphalt parking lot for me, I would b~ very
happy for him to do that because they have rui~ed it
with their skates. That's all I have to say.
As far as no windows on the side of ~y buildinq,
the reason I have no windows is because ot. secu~ity.
I've qot them in front, but not on the sije neither
D & D Reporting Services
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side. On the back of my building I have a -- inside
the building I have a steel or bars like ~ door for
protection. The building is concealed co~pletely so
that nobody can break in the side or the top or
anything else. Of course, it's protected by Sonitrol
6 and that's the only reason that there is ~o windows.
7 Why would I have windows in a building like that.
8 It's a free-standing building where anybody can just
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come in and break the window and come in. Tha~'s the
reason for the no windows. I have to go back to work
and try to make a dollar. Thank you.
HEARING OFFICER: You may call your first
witness.
22
MS. DOUGALL-SIDES: I do have a number of
exhibits 1 would like to offer, the first being a set
of certified copies of several code sections. And let
me list those. 36.033 Planning and Zoninq Board,
36.065, appeals to hearing officer or City commission.
40.004, applicability and scope of chaptar and then
the zoning district regulations for the UC core
district which are seqtions 40.481 through 40.488,
sections 41.021 to 053, conditional uses section 42.21
to 27, nonresidential and multifamily l~dscape
standards. Additionally, I have a certi~ied copies of
6348-99 ordinance code. It provides somQ exp~anation
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and rules for the applicant within the timeframe that
we may be concerned with.
HEARING OFFICER: With no objection, it would be
received as City Exhibit 1.
(CitY,Exhibit Composite 1 was marked.)
MR. MAGUIRE: No objection.
MS. DOUGALL-SIDES: Additionally, I have a copy
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'of two pages out of'our comprehensive plan being under
bold III, objective 3.1 and 3.2 and then a description
I
of the'downtown development district from the plan.
HEARING OFFICER: City Exhibit 2.
(City Exhibit 2 was marked.)
MR. MAGUIRE: No objection.
MS. DOUGALL-SIDES: I have a copy of the ~ortion
of the zoning package page -- showing the subject.
property.
".--.
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MR. MAGUIRE: No objection.
HEARING OFFICER: It's received.
(City Exhibit 3 was marked.)
MS. DOUGALL-SIDES: A copy of portions of the
Clearwat~r Downtown Redevelopment Plan.
HEARING OFFICER: Thatfs number 4. Any
objection?
MR. MAGUIRE: No objection.
MS. DOUGALL-SIDES: And finally, a cpmplete set
D & D Reporting Services
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of the design guidelines for the Urban Center
District.
HEARING OFFICER: Any objection?
MR. MAGUIRE: No objection.
HEARING OFFICER: Four and five are also
5
6
7
received.
(City Exhibits 4-5 were marked.)
8 MS. DOUGALL-SIDES: The City would call as a
9 witness Antonia Gerli. May I ask if Mr. Maguire has
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any objection to his presenting as an expert witness.
MR. MAGUIRE: Do you want me to stipulate for
purposes of this hearing that they are qu~lified
experts in the field of Planning and Zoning and that
they are
MS. DOUGALL-SIDES: Planning and dev~loping -- we
can go through the qualifications.
MR. MAGUIRE: I think for purposes of this
18 hearing 11m sure they are qualified as expert
19 witnesses for the purpose of trying to ,establish some
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competence. So whether I like it or not, L1m going to
go ahead and stipulate that they are competent to
testify in these matters. If there is any specific
objection to a specific matter of qualification, I
24 will raise it at that time. But right nQw...
25
MS. DOUGALL-SIDES: I would like to ~ntroduce Ms.
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Gerli's resume as an exhibit.
HEARING OFFICER: Without objection that' would be
received ae City Exhibit 6.
(City Exhibit 6 was marked.)
,',.-... ,
ANTONIA GERLI
WAS CALLED, AND AFTER BEING DULY SWORN, TESTIF1ED AS FOLLOWS:
DIRECT EXAMINATION
I '
BY MS~ DOUGALL-SIDES:
OMs. Gerli, in what zoning district i, the subject
property located?
A This property is in the Urban Center District,
Corridor 2.
Q And what is Corridor 2?
A The whole downtown district is divided into a
series of different corridors. There's a corr!dor
district. The core is the center section.
Q So there's subdistricts of the downtown district?
A Yes"
,0 Is there a distinction between the subdistricts
in terms of uses that are allowed?
A Not so much uses as floor areas, densities and
that sort of thing.
Q Do you know where the boundary is between the
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core subdiotrict and the adjacent to the east subdistrict?
~
A
The eastern corridor I believe starts aro\.Jnd
3 Greenwood Street. 11m not exactly sure.
4
What generally is the land use that's permitted
Q
5 in the core subdistrict?
6
The core subdistrict generally permits offices
A
7 uses, retail uses, attached dwelling, apartment buildings
8 and that sort of thing.
9
Are vehicle sales allowed as a conditional use in
Q
10 that subdlstrict?
11
12
A
Yes, they are.
o
What is the procedure for obtaining eonditional
13 use review from the City?
14
An applicant would submit an application to the
A
15 planning department. The planning department would review
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16 it and schedule it for a public hearing before the Planning
17 and Zoning Board.
18
Does the planning department review the materials
o
19 submitted as a threshold review to Bee whether they are
20 sufficient to review in the first place?
21
Yes. We make sure that the application is a
A
22 complete application before it goes to the Planning and
23 Zoning Board.
24
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Do you recall any such review of thi. particular
o
application?
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A
Yes~ we did review this. One of problems we had
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2 with it was the site plan that was submitted W~B not
'3 submitted in conjunction with the survey eo it was hard
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MR. MAGUIRE: I'm going to object to any
testimony along these lines. The application was
submitted and processed and no objection was ,ver made
to the failure of that to be included in t~e record.
MS. DOUGALL-SIDES: There has been testimQny by
Mr. Nott about his dealing with staff.
MR. MAGUIRE: There was no objectio~ raised to
the application and its sufficiency during the
processing.
HEARING OFFICER: I will overrule the objection.
t'~-.. .
!
You may proceed. Go ahead.
16 BY'MS. DOUGALL-SIDES:
17
A
So that held it up for a while because the
18 applicant did not have a survey of his proper~y an~the
~~.~ .
19
site plan that he submitted does not show I don't think
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20 sufficient dimension.
.::.'::
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Q
Was it eventually, however, forwarded to the
22 Planning and Zoning Board?
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23
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A
Yes, it was.
Q
Did staff write a report for the Bo~rd's
25 consideration?
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Q
Yes, we did.
What, if any, was your involvement in writing
3 that report?
,4
A
I reviewed the report and I prepared the final
5 draft of the report, after it was prepared by $enta.
6
7
Q
What steps did you take in reviewing the r~port?
We reviewed'it based on the review that's
A.
8 required for all conditional uses. That would ~e to see if
9 it's in compliance with the comprehensive plan and the land
10 development regulations and any other plans.
11
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12 property?
o
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Are you familiar with the physical slte at the
A
Yes, I am.
Q
Do you review your conclusions with "r. Stone
15 prior to the matter going to the report?
l6
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l8
,A
A
Yes, I do.
Q
Is there an existing use on the property?
Yes, there is. The existing use is p skate board
19 and roller blade shop.
20
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Q
So the proposed use is a second use~
A
That's correct.
Q
Is it usual or unusual to see two different uses
23 on a downtown parcel?
24 A It's not unusual to see two different use~ on a
25 parcel. It may be unusual to see these two seemingly --
9
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'Q
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I should ask you how long have you been with the
..."-...,
City of Clearwater?
A I started here in October of 1998.
o In your report if you can refer to -- do you have
a copy of that in front of you. If you can refer to pages
2 and 3 of the report. The report comes to the conclusion
that used vehicles sales in that location is incompatible
with the downtown area.
Can you state why you came to that
conclusion?
A As the report states, that was -- we concluded
that because it was not in compliance with Goal 3,
Objective 3.2 of the Comprehensive Plan. This objeptive
states that the Planning and Zoning Board should
specifically consider consistency with the proposed use
with the community's character in granting a permit for a
it" '.",
i
conditional use. Other parts of the land development
regulations themselves state that that same goal of
community character being consistent with the cpmmunity
character. In addition, we felt that there is another
standard that says noise generated from the use shall not
reasonably diminish the use, enjoyment or value of the
properties. We felt that the normal used car lot people do
come in and turn the engines on, take them for test drives
around the area, the local areas and that this flaB not in
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1 compliance with that. Another standard is that sufficient
2 landscaping and screening shall be provided. We did not
3 believe that the submittals indicated that that was the
4 .case.
5 0 On that were you going in your review through the
6 site plan sUbmitted by Mr. Nott?
7 A Yes.
a 0 You did not have at that time the conceptual that
9 . we are looking at today?
A No, that was submitted at the meeting.
Q Are there other vehicle sales uses in the core
subdistrict?
A There are some automobile rental places in the
core district, the ones that we were talking about earlier,
I believe Avis. And one also up a couple of blocks up the
street on Cleveland.
o What, if any, difference do you see between their
location or their zoning situation from the applicant's?
A I don't see much of a difference between their
location.. This location is probably more sensitive being
that it's the Pinellaa Trail next to a national historic
building and being further or deeper into the actual urban
portion of Cleveland Street than the other two.
Q In the present state of the property with its,
current use that is without the proposed use, do you know
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whether the property would be considered legally conforming
76
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2 or legally non-conforming?
3
A
The landscaping I know would be considered
4 non-conforming. I believe the parking is sufficient and
5 the floor area is sufficient. 11m not sure --
6
0,
Is it your interpretation that the current UGe
',"
7 . car sales application triggered a requirement that the.
8 property conform to the various code requirements such as
9 landscaping?
10
A
I
Yes. In the section on applicable
beginning
11 on the applicable part of the code, it says a change of use
12 would trigger a compliance.
A
Is that section 40.004, do you recall?
Yes, it is.
You mentioned parking~
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Q
HEARING OFFICER: What was that n~er again?
MS. DOUGALL-SIDES: 40.004, Your Honor.
18 BY MS. DOUGALL-SIDES:
19
o
You mentioned that parking was sufficient. Are
20 you 'referring to on-site parking spaces available for
21 customers?
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A
Yes.
Q
You look at that in terms of the site plan?
Yes. It's based on the square footage of the
'I,',
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25 building.
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Did you ever review whether parking would still
2 be sufficient when the required landscaping had been
3. ,installed?
4
5
A
I don't recall that we did.
o
Your report does find sufficient customer parking
6 on the lot for the proposed use?
1
8
A
Yes.
Q
Concerning the landscaping, what is your position
9 . that would be required with the proposed?
A The proposed use or any change of use or new use
would require a 10-foot buffer of landscaping along
Cleveland and a 5-foot wide one along the side street. And
in that buffer there will be one tree every 40 feet and
also shrubbery to cover I believe it's 75 percent of the
landscaped area, the buffered area.
Q Did you put that in your report?
A I would put in the width of 10 feet on Cleveland
and the 5 feet on the East Avenue side with sufficient
trees and shrubs to buffer from the side.
Q Do you recall what code section you. were
referring to there?
A That is code section 42.27.
Q And what is the purpose of this landscape buffer?
A In -- the general purpose?
o Yes.
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A landscaping is to mak~ the property more
..-.,
attractive. In this case itts to make the downtown area
more attractive, itts to soften it. To prevent any
prevent any noise or any objectionable use that may be
emanating from the site.
o To your knowledge, did the applicant propose any
help
new landscaping on site prior to the hearing?
,"
A' No, he did not.
. Q To your knowledge, do you recall his presenting a
rendering of the property to'the hearing?
A Yes.
Q It's displayed here today?
A Yes.
Q
Can you tell from that rendering whether the
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landscaping shown would meet the 10-foot or 5-foot buffer
requirement?
A You really can't tell with that site plan. I did
not feel that it did look like it met it. It doesn't look
like a lO-foot buffer. It looks like the existing 3-foot
buffer that's on the site now.
o In your experience with the Planning and Zoning
Board, does the Board itself ever impose landscape
requirements or conditions?
A Yes, they do.
Q Your report references open space requirements.
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1
You describe how t~e proposal meets or doesntt meets the
2 code with respect to open space?
3
A
There is a prevision in the downtown -- I believe
4 it's the downtown development plan.
5
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10 'BY MR. 'MAGUIRE:
Q
Which one is that?
MR. MAGUIRE: Can I cross-examine on this,
please. Voir dire on this.
VOIR DIRE EXAMINATION
11
Q
The document you are referring to, is this
12 something adopted by the Community Redevelopment Agency?
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A
It's adopted by the City Commission.
This says Community Redevelopment Agency on it?
Q
A
Right.
Is this an ordinance of the City of Clearwater?
Q
A
No, it's not.
MR. MAGUIRE: I move to strike any reference to
this document. It's not an ordinance of the City of
Clearwater. '
MS. DOUGALL-SIDES: In response to that some of
conditional use criteria require that the Board
consider the community appearance standard of the City
and we're not proposing that this is a code
requirement, but that the downtown City guidelines and
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'the government plan are documents that reflect the
- .
community appearance standard of the City, whether it
/..---......
3 . may not be qualified.
4
MR. MAGUIRE: Likewise, any reference to the
5 design guide~ines of City of Clearwater, the opening
6 paragraph states that these downtown design guidelines
7 shall serve as a guide for both new development, as
..
8 well as renovation and rehabilitation of existing
.9
properties.in the urban center. My client talked to
10 you about a change of use. This is a renovation, a
11
rehabilitation. They never indicated anywhere that he
12 had or could have complied with design guidelines.
13 The design guidelines are an ordinance that was
14
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adopted by the City of Clearwater.
MS. DOUGALL-SIDES: The design guidelines in the
16 downtown plans are referenced in the report 80 I was
17 going to have Ms. Gerl! tell us --
18
19
HEARING OFFICER: I will overrule the objection
to the testimony. However, I think the testimony
20 could be -- if counsel will make clear that these are
21 not code requirements that need to be complied with, I
22 will reserve ruling on the issue that you raise as to
23 whether they should be considered by me in determining
24 what the appearance standards of the community are,
25 whatever the proper terminOlOgy is.
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FURTHER DIRECT EXAMINATION
BY MS. DOUGALL-SIDES:
o
A
Does your report mention open space?
Yes, it does.
What did you conclude, if anything, regarding
Q
6 open apace?
A
We conclude~ that the opon space was not
compatible with properties in the area. As an example the
Trickel1s Jewelry store has a 30 percent open space on
their site.
Q Did the proposal technically meet code as to open
space?
A' Yes, it does.
Q By the way, does ,it indicate a paved p~rking lot
down as an open space?
A No, it doesn't.
o Why not?
A Because itls a impermeable surface. It's open
space, it's open from the ground up and not surfaced over.
o SO,would grass or shrubbery count?
A
No, that would be considered open space.
There's been some reference to the design review
Q
23 guidelines. Does your report refer to those guidelines?
24
25
A
Yes, it does.
Can you point us to the page --
Q
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A
Page 6.
MR. MAGUIRE: Again, I'm going to object. The
,,,-...,,,
3 design guidelines are titled guide to new
4 construction, building additions, facade alterations
5 and signage. My client is not engaged in any of those
6 activities. This is not germane to the issue of the
7 conditional use. Conditional use requirements are set
...
8 forth 'in the code. This has to do with the
9 renovation" redevelopment. My client has not done
10 anything to this structure or was there any
11 requirement placed on him to redo anything to the
12 exterior shell of this building. There's nothing that
13 was placed that is pertinent that was ever raised in
14
15
these proceedings.
('............
........ .
HEARING OFFICER:
I will -- Bame ruling, I
16 understand the objection. Let me just ask a question.
17 You said that the application does meet the code
18 requirements on open space, was that your testimony?
19
20
THE WITNESS: Yes.
HEARING OFFICER: You said the Tr~ckel property
21 has 30 percent open space?
22
,23
THE WITNESS: Correct.
HEARING OFFICER: What's the open space
24 percentage on this property?
25
THE WITNESS: Seven. .
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BY MS. DOUGALL-SIDES:
Q
Did you consider in your review the existence of
3 the post' office building across East Street from the
4 property?
5'
6
Yes, we did and we even mentioned it.
A
Q
What is your analysis of the proximity of that
7 building?
8
One of the analyses -- it's listed under the open
A
9 space section to show that they have more open space' and
10 the buffering with vegetation on the front of the property
11 than this other property has.
12
In your opinion is the proposed use compatible
o
13 with the post office use?
14
15
16
17
18
19
MR. MAGUIRE:' I'm going to object. The
Clearwater ~ity Commission has already stated that
this is a compatible use'in the area as long as
certain reasonable conditions are met. This is an
appropriate use subject to reasonable limiting
conditions. I don't believe that this witness can
20 testify to a legislative determination of the City.
21
MS. DOUGALL-SIDES: Again, one of the criterias
22 of the City is in this comprehensive objectives for
23 the Board.
24
25
HEARING OFFICER: I'll overrule the objection to
the evidence. I understand the objection.
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BY MS. DOUGALL-SIDES:
,Q Can you answer the question?
A Could you' repeat it one more time'.
a In your opinion is the proposed use compatible
with the post office use across East Street?
A I don't believe that the proposed use is
compatible. The post office building is a national trust '
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building. In the downtown area of cleirwater that building'
/
really sets the ,feeling and the architectural look and the
community character for a lot of the downtown. It's kind
of a magnet building almost. Used car sales and outdoor
displays of saleable materials are not compatible with
that.
Q
Where is the Pinellas Trail in relation to the
subject property?
,A The Pinellas Trail is on the other side of the
side street which I believe is East Street.
o Is there, in fact, a railroad track running down
East Street?
A Yes, there is.
o Did you review in your analysis the interaction
between proposed customers of the used car business and the
other customers of the skate rental business and users of
24' the trail?
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No, we did not.
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Do you have an opinion as to whether there would
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MR. MAGUIRE: Objection, calls for pure
speculation on the part of the witness.
HEARING OFFICER: Again, it's a planning opinion
as to use. 1111 overrule the objection.
7 BY MS. DOUGALL-SIDES:
8
Do you have an opinion as to whether there would
o
9 be any conflict ,between customers of the proposed us'ed car
10 business and both the users of the skate business and users
11 of the trail?
12 A I think there could be a conflict with both
13 those. The two businesses on one side when the
14
skate-boarders and roller-bladers are outside on the
15 property, they would effectively be in the sales area of
16 the used car area which could be dangerous.
17
I think most of them are young. Some times
18 they are not paying too much attention. It seems like it
19 would also be detrimental to the cars. The Pinellas Trail,
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~hich is right to the west of the property, there ia an
egress and ingress both on Clev~land and on East Street to
this property, and it seems like it could be dangerous if
people are taking cars out of there and test driving them
and driving them around with the people on the trail, and
there is roller blading and bicycling.
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By the way, was there any information provided by
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the applicant as to'test drive situations where there would
be test driving of the cars?
A No, there wasn't.
QYou have seen the photographs of soma of the
businesses around and about and the applicant's business
and some of them relate to the street to the north of
Cleveland Street. Do you consider Cleveland Street to be
different 'than the street immediately to the north and
parallel to it?
A On Cleveland Street, while in the same zoning
district, is definitely the main street of the town. It
has a more urban flavor than the streets that are parallel
to it on the other side. I would consider it different,
yes. I think it's treated differently by the citizens of
the community and the goals that --
o And how so?
A I think that there is more emphasis on Cleveland
Street. As I said, it's really the main street of
C~earwater. Trying to make it look more attractive, trying
~ to encourage businesses to be there, trying to make it
really a pedestrian and people place and it is the central
focus of those goals.
MS. DOUGALL-SIDES: Nothing further.
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CROSS-EXAMINATION
BY MR. MAGUIRE:
Q As to the open space on Trickel's, how did you
determine that percentage?
A We calculated it I think from an old surveyor
site plan.
a Did you do that yourself?
A No, I did not.
a Do you know where Angie's Restaurant is?
A Yes, I do.
a On this diagram would that be on the corner where '
the yellow one and two are?
A Yes.
a How much open space is on that site?
A I don't think any.
a The Mercedes repair shop, yellow number 10, how
much open space is on that site?
A . Very little, if any.
o Site yellow three and four and five, how much
open space are on those sites?
A I can't remember what's there. You said the
Avis'?
Q The Mariner Motel.
A Probably 10 or 5 percent.
Q So really 7 percent is not really inoonsistent
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1 with what's in the area or near this property, is ~hat
2 correct?
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Well, 'I would say in this block it's
4 inconsistent.
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o
A
How many mature trees are there?
I said on this block, on this side of the block
it's not consistent.
o
The post office
across the street and within a
9 SOO-foot circle -- why is there a 500-foot circle on there?
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notice?
A
Q
That's our noticing cIrcle.
So that's affected property owners for giving
Correct.
So that's'what the City defines as the affected
15 areas, correct?
16 A, Correct.
17 Q. SO that's a pretty good definition of the
18 surrounding neighborhood in the community, correct?
19
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A
Q
Yes.
Now, you ~tated that the property complies with
parking. . I believe your report also states that it
22 complies with building setback requirements?
23
24
25,
A
Q
A
Yes.
The open space is adequate for the code?
Correct.
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Q
Floor area ratios are ade~ate?
Yes.
A
o
Isn't it true throughout downtown Clearwater
4 there are multi-story buildings, single-story buildings in
5 this whole core district? There are many buildings that
6 have many different uses occupying the same property?
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Yes.
o
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Do any of the banks on Cleveland Street, do they
have any setbacks or buffering?
A
, The newer ones have to have some buffering, yes.
Are you an appraiser?
o
A
No, I am not.
Q
Did you make the determination or could you
explain to me how you determined' that the noise generated
15, from this proposed use would unreasonably diminish the use,
16 enjoyment and value of the surrounding properties? That
17
would be your general standards, 4l.052, subsection 3. I
18 think your testimony was you felt that --
19
20
A
What page are you on?
Of your report, Page 3, your testimony is you
Q
21 felt that the noise generated ~ould unreasonably interfere
22 with the other people's properties or would unreasonably
23 diminish the use or enjoyment or value of the surrounding
24 properties. Now, you're not an appraiser, so you can't
25
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make a determination of value, is that correct?
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Yes.
01 believe you stated vehicle sales have the
potential to generate excess noise. What's excess noise?
What decibel levels?
A I don't know.
o Do you have a city code that covers noise levels?
A Yeah, we do.
Q So that would cover that, wouldn't it?
A Correct.
o So as long as he was in compliance with the law,
there wouldn't be any excess noise levels, correct?
A . Correct.
Q
So really there's
you made no
you said
there was a potential, but you don't know, in fact, that
I
that will occur, do you?
A No.
o Now, if my client were to comply with the
landscaping requirements of code, then your complaint
regarding the sufficiency of the landscaping would then be
,moot, correct?
A Correct.
o So if he's willing to do that and was willing to
do that?
A But he wasn't willing to do that. He didn't want
to rip up the pavement.
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Q ~ If he was willing -- now, in a ten-minute hearing
2 do you think he possibly had the opportunity to address
3 these matters before the Board? '
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A
Well, in the three months before that when we had
5 discussions about it he wasn't willing to do it.
6
o
Was that a condition that the Board could have
7 imposed at its hearing?
8
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Q
Yes, it is.
That would have been a fairly typical conditional
10 requirement, wou~dn' tit?,
11
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A
Landscaping, yes.
But they didn't even put that in as a
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13 requirement, did they?
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No. . They didn't think it was necessary.
Paragraph 7 says the use shall be consistent with
o
16 the community character of the property surrounding the
17 use. On one side of my client's property is a post office.
18 It generates a lot of vehicle trips, isn't that true?
19
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A
Yes.
o
You sai~ yourself it attracts, it's a magnet for
2l the downtown?
22
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A
Correct, yes.
Q
Do you know that overflow parking from the post
24 office ends up parking on my client's property?
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No, I don't.
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o
Are you aware -- so, now, the post office brings
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mail in, distributes mail, that's a major traffic
generator, correct?
A Yes.
o Do you believe that my client selling used cars'
is goinq'to diminish the value or use of the United States
Postal Service Center in downtown Clearwater?
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A I think it might diminish the enjoyment of other
people going there, yes.
Q That's pure speculation, isn't it?
A It's my opinion. That's what you asked for,
wasn't it.
o That's fine. Well, actually, the code says that
, in determining the community character there is
subdivisions A and B where the use is compatible with the
surrounding natural environment. And the only thing you
said on that was the proposed site has been developed for
many years and little natural environment exists on the
site. Only one tree exists and the development of the
proposed building does affect the tree. Therefore,.under
your community character standards which yqu are supposed
to go by, all you said was there's a tree on the property.
You rendered no opinion as to the negative or detrimental
affects. That's on Page 4, Paragraph 7A, right, that's all
you stated in that report?
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A
That's correct.
2
O. Then the other part whether the use will have a
3 substantial detrimental effect on the property value of the
4 prope~ties surrounding the conditional use. You. said
5 you're not an appraiser, correct?
6
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A
That's correct.
o
So that is what the substantial, detrimental
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8 effect is. supposed to be measured by, correct?
9
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11 it?
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A
Correct.
<)
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Now~ the u.s. Post Office hasn't 'complained, has
A
We have not heard from them.
Q
Did they ever complain about them when there was
14
a leased car operation or a rental ,car business next to
15 them?
16
17
A
I didn't work here then.
Q
And Trickel's Jewelry store is only on one side
18 of 'the property. Now, that business has beeD there for how
19 many years?
20
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Trickel's? I think she said 53.
Q
You are Dot able an~ you have no evidence or
22 testimony that that business of Trickel's or their property
23 . would have a substantial detrimental effect on the property
24 value of Trickel's, correct?
25
A
Do I, no.
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And there's nothing in this report, is there?
I believe not.
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Q My client received your memorandum of staff the
day before the hearing, and you say that he hasn't proposed
anything or done anything to enhance the downtown area.
This property my client bought in 1996 and has made
substantial improvements to it, you are aware of that,
aren't you?
A I haven't seen it before. I don't know.
o So he has, but if he has cleaned it up,
renovated, brought the building code up, gotten the
derelicts out, operates a good, driving business, he's. done
things to enhance the downtown, hasn't he? Isn't the skate
shop next to the trail an enhancement for Clearwater?
Isn't it?
A Yes.'
Q So he's done that. So the only thing he's really
not done is complied with the landscaping requirement?
A Yes.
a And if the Board had made that a condition, then
my client could have made a ~ecision to either just
landscape it or forget it, correct?
A 'He had ample opportunity to propose that before
and did not do it when it was suggested by the ataff. He
refused to do it.
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1 am seeing a staff report, a memorandum tha~ he
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2 has testified he received the day before the hearing?
3
I mean, I met with him on at least three
A
4 occasions.
S
o
But isn't that something that the Board has to
6 decide, that that is a condition that they could have
1 reasonably imposed if they had chosen to if he otherwise
8
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We didn't have a site plan, you know, and a
A
9 revised site plan wasn't submitted. A revised landscaping
10 plan was not submitted. All that was submitted was the
11 application--
12
But certainly a reasonable condition to solve the
o
13 landscaping -- then you said to buffer the noise, light and
14
glare. What light, what glare? But assuming that your
,
15 landscaping code is sufficient to do that, if he complied
16 with the landscaping requirements, there would be no
17 grounds -- no other requirement far him to --
18
The requirement is the outdoor use shall not
A
19 adversely affect the community appearance objective of the
20 City. Landscaping I believe has a lot to do with. the
21 community
22
o
Right, and you said in the code what that is, a
23 10-foot buffer. If you're a zoning administrator or
24
2S
development services director, and if putting in the
lO-foot landscaping buffer inhibited circulation on the
D & D Reporting Services
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site BO as to require tho romoval of tho.oak street, what
would you prefer my client do, remOVQ the oak trQQ'or put
it a 10-foot landscapo buffer?
A I don't ovon know whoro the oak tree is.
0 Did 'you go to the site?
A Yes, but I don't remember.
Q Let me give you ~ hypothetical. The oak tree is
on the property. Adequate site circulation is on site as
the property exists with the 3-foot buffer area. I'f the
'3-foot buffer area were extended to 10 feet and required
the removal of the oak tree to maintain on site
circulation, what would you prefer, 10-foot landscape
buffer or the oak tree? Choose one?
A I don't have to choose one.
c,
In the hypothetical, what would you prefer?
Q
A If it can't meet both the code requirements, I
wouldn't recommend approval.
o Can he remove the tree?
A I.don't deal with that and I really don't know.
Q What is your position with the City?
A Development review manager. That would be the
forestry.
Q Do you know what is the largest retail induatry
in the United States today?
A No, I don't.
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Would you be surprised to learn that itts
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2 automobiles?
3
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NO, I wouldn't.
Would that make sense -- well, you're a
A
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5 development person. I would assume that would be something
6 you would either have read or you would have understood?
7
8
Yes.
A
o
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You are trying to encourage downtown ~evelopment
9 a people place? Do you know that people like cars and --
10
11
A f Yes.
Q Why is a nice, attractive automobile dealership
12 inconsistent with your plan? If it draws people, wouldn't
13 people at lunch like to go and look at some nice cars?
14
There was no presentation on how attractive the
A
15 business was. When we look at a business, we look at a --
16 this is before that. That was presented at the last
17 minute. We never had time to review that. What Itm going
18 by is the application --
19
o
Excuse me, are you aware that Mr. Stone received
20 a letter saying that the cars would be sold in the ten to
21 $35,000 category?
22
A
Yes.
23
Did you ever inquire of the nature and scope of
Q
24 the operation? You said you had lots of talks with Mr.
25
Nott.
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We_had a site plan that showed the nature and
A
2 scope of the operation.
3
Q
But you said you talked to him. Did you ever
4 understand that he was going to run a budget car lot? Was
5 that ,ever the impression that you got?
6
7
8
9.
A
1 had no impression one way or the other.
You based it purely on a typical used car
Q
operation?
A
No. '1 based it on the application Mr. Nett
10 submitted.
11
Q
If Mr. Nott was told, no, you canlt change
12 anything, it's all done, would you be surprised?
13
14
15
A
Change anything --
His application once it was submitted.
We encouraged him to submit more and he did not
Q
A
16 do that.
17
18
19
20
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MR. MAGUIRE: No further questions.
HEARING OFFICER: Any redirect?
MS. DOUGALL-SIDES: Yes, Your Honor.
21 REDIRECT EXAMINATION
22 BY MS. DOUGALL-SIDES:
23
You've been referenced to some banks along
Q
24 Cleveland Street and some other businesses in the
25 surrounding area. Do you know whether those busine~se8
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would have predated the 1980 zoning code?
A
No, I don't.
o
If some of them did, would they be subject to the
4 1980 code regarding landscaping?
5
6
A
Yes, they would.
The map that Mr. Maguire showed you showed a
o
7 50.0-foot radius I believe dra\>m in a circle for mailing of
B notice. I'm ~howing you section 36.082 of the old cOde,
9. can you identify any number of feet that the code
10 requires
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A
The code requires 200 feet.
Why is 500 feet used?
That is the policy of the clerk's office.
Do you know whether the U.S. Post Office facility
Q
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o
15 on Cleveland Street is subject to the City's zoning code?
16
17
A
Yes, it is.
Has the City ever tried to enforce its code
Q
18 against the post office, are you aware?
19
A
I don't believe they've changed the use, you
20 know, of that building since the first.
21
Q
With reference to retail and in reference to car
22 sales as a retail use, can you state whether the proposed
. 23 use, the outdoor use code is classified by the City's
24 zoning code and the downtown core subdistrict as a retail
25 use or as some ather use?
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.1 A They're two separate uses. There's a retail use
2 and there is a used car vehicle sales.
3 0 So vehicle sales is a separate use?
4 A That's correct.
5 Q Does the code regulate -- once you have a vehicle
6 sales operational, does the code regulate what type of
7 vehicles are displayed and sold?
8 .A No, it doesn't.
9. . Q So it could be very old cars, very new, used
10 cars, Jeeps, RVs?
11 A That's correct.
12 MS. DOUGALL-SIDES: Nothing further.
13 HEARING OFFICER: Recross.
14
15 RECROSS-EXAMINATION
16 BY MR. MAGUIRE:
17 0 Obviously your decision was based upon a typical
18 used car operation, I think that's what you stated a few
19 minutes ago?
20 A It was based on the application that was
21 submitted and the information, yes, sir.
22 0 But you based it on a typical used car sales
23 operation, I think'you said that; isn't that what you
24 testified to earlier?
25 A I don't believe so. I don't have a preconceived
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2 vehicle sales. So whether it's used or new is kind of
3 irrelevant to the application itself.
4
Q
Isn1t it true that in the downtown core area that
101
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6 time?
7
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A
I know it is now. I don't know if it was then.
o
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Do you want to look at code?
I believe you if you say it is.
Assuming that a commercial parking facility is a
A
o
11 permitted use under the code, my client would not have had
12 t~. ask any permission from the City to commercially park
13 cars on his site, correct? He would not need a conditional
14
use permit in order to park cars commercially on his site,
15 is that correct?
16
A
Well, I'm not sure if that's the definition of
17 the -- my understanding was that if you wanted to build a
18 car, garage, or a car lot and then people would park there
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by day or hour or whatever
not for vehicle sales.
20 Commercial parking means a use of land as a parking lot for
21 which a fee is charged for.parking.
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So my client could have charged people to come
Q
23 and park on this property and not needed a conditional use
24 permit?
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A
If itts -- as of right now, I suppose so, yes.
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That's probably worse than what he's got proposed_
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for this property as far as people coming and going and
activity in a high activity area, isn't it?
A I don't know.
MR~ MAGUIRE: No further questions.
FURTHER REDIRECT EXAMINATION
BY MS. DOUGALL-SIDES:
Q , On the commercial parking, isn't it correct that
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the applicant would still have to undergo the site plan
review for that use?
A Absolutely. They would have to comply with all
the regulations. That would be a change of use or a new
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use or whatever.
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Q And including landscaping?
A And including landscaping. They'd also have to
meet the parking standards for the existing building.
HEARING OFFICER: I have a question. Do you have
any opinion as to whether the landscaping is required
by the current code for a new use, the lO-foot buffer,
whether that would re~ult in a problem with the oak
tree on the lot? Did you ever determine that?
THE WITNESS: Well, if the oak tree is in the
buffer you mean?
HEARING OFFICER: Right. I'm asking you whether
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you determine it would be a problem if ~he landscaping
which you are saying is required would be put in
there.
THE WITNESS: I don't know. I think the issue
was when the landscaping was put in, then the
circulation changed and someone said, well, then the
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7, only possible circu~ation is to remove the tree.
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HEARING OFFICER: Who are these people who are
9. saying all this stuff?
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THE WITNESS: The people, the planner that
reviews the landscaping and the forestry for
conditional use and whether it should be kept or could
be removed or replaced.
HEARING OFFICER: What I am asking you is, have
15 you reached a determination -- do you have an opinion
16 based on what you normally consider when you review
17 applications, as to whether putting the lO-foot buffer
18 landscaping in which would cause a problem with
19 traffic circulation, that would cause the tree to have
20 to be removed?
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THE WITNESS: No, I don't.
MS. DOUGALL-SIDES: Can I just ask is the tree
shown on the site plan?
THE WITNESS: No, it isn't. No, it doesn't.
HEARING OFFICER: Thank you. That's all.
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FURTHER RECROSB.-:EXAMINATION
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BY'MR. MAGUIRE:
o You did reference the tree on the property in
your report, correct?
A Yes, I believe there was a part.
o Section 7A, the proposed site was developed, only
one tree exists on the p~oposed building -- but, .actually,
there is no proposed building to be developed on this site,
is there?
A No.
o So that's really incorrect; under 7A there is no
proposed building
HEARING OFFICER: That's really not ;elevant to
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my question.
MR. MAGUIRE: No. Nothing further.
HEARING OFFICER: Anything further from the City?
MS. DOUGALL-SIDES: The City would call Ralph
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Stone. Again, I would offer Mr. Stone as an expert
witness in urban planning and development review and
offer a copy of his resume as City Exhibit 7.
MR. MAGUIRE: I have no objection at this time.
I'll reserve my objection to any specific inquiry.
HEARING OFFICER: You may proceed in those areas.
I will receive the resume as City Exhibit 7.
(City Exhibit 7 was marked.)
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1
RALPH STONE,
2 WAS CALLED AND AFTER BEING DULY SWORN, TESTIFIED AS FOLLOWS:
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4 DIRECT EXAMINATION
5 BY MS. DOUGALL-SIDES:
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Mr. Stone, what, if any, involvement did you have
'Q
7 in reviewing Mr. Nott's conditional use application?
8
'A
I talked to Mr. Nott prior to his submitting the
9 application and reviewed the drafts of the staff reports.
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Q
Did you have any conversations with Mr. Nott
11 after he submitted the application?
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A
I don't recall if I did or not. I know that I
13 did beforehand.
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Q
Do you recall receiving a letter that was
15 produced earlier?
16 A I don't specifically, but I may well have.
17 Q You mentioned you reviewed the staff report, I
18 believe. Did you concur with Ms. Gerli's recommendation?
19 A Yes, I did.
20 0 What aspect of the application, if any, did you
21 think failed to meet the qonditional use criteria for
22 approval?
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A
Several. I concurred with the staff ~eview
regarding the use in general and that it was inconsistent
with ~he'type of use that is standard as far as that part
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1 of the downtown. They were incompatible with the already
2 " existing use, that being used car versus skate shop and
3 inline skate board shop and contributed to the kind of
4 conflict that it may create both on the side and on the
5 Pinellas Trail that concurred with the traffic site plan
6, that was submitted, and it did not include the required
7 landscaping we would normally expect to see.
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8 And I concurred with the staff in regard to
9 the'general use on the site to mitigate our concern"based
10 on the amount of information that was given to us.
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Q
You did not attend the Planning and Zoning Board
12 meeting?
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A
No, I was out of town.
Do you recall in your conversation with Mr. Nott
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15 conferring with him regarding the new land development code
16 coming into effect?
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A
Yes. And, in fact, I think that's when we had
18 the discussion about the timing issue. I told him that
19 there had been a new code that was approved on the 1st of
~O December and that the second reading within a matter of
21 days, that that particular. code 'eliminated this kind of use
22 and other heavy commercial from the downtown district. If
23 he intended to pursue this kind of thing, that he needed to
24 get his application in by the last of December.
25
Q
Did he file his application so that he fell under
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the old code?
A
Yes. He got his application in on time.
o
Are you aware of any other vehicle sales use near
4 .the subject property?
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A
There are some in the immediate area, yes, there
6 are.
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Do you see any difference between that situation
Q
8 and the applicant's?
A
Yes. . Some of them are off Cleveland. And at the
same time you mentioned earlier Cleveland is the main
street. It's a designated main street corridor.' It's a
key corridor through the downtown, so I think there is a
significant difference in that record. There is also a
difference in this particular spot at the eastern end of
15 what we consider the downtown core.
16 I think one of the other requirements for
17 that in the area of downtown which has traditionally been a
18 heavier commercial type of use that welre attempting to
19 revise out at that particular site of the City and expand
20 the downtown area.
o
Have you had conversations with other would-be
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22 applicants involving coming in and applying for uses in the
23 downtown area?
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A
Not vehicle SpIes uses specifically but other
25 vehicle-associated uses. We had one specific instance I
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recall that a gentleman wanted a vehicle repair shop. I
basically.advised him of the same information I did Mr.
Nott which was that we had a deadline coming up. If he
wanted to pursue it, we had a combination repair and sales
that I talked about probably back before the first reading
on the record, and he decided not to pursue it.
a You mentioned the Mainstreet Program. Can you
describe that?
A The Mainstreet Program is set up and maintained
by the State of Florida
MR. MAGUIRE: I'm going to object. This has
nothing to do with the criteria or anything that's in
'the staff memorandum which is the basis for the City's
denial. I have never seen anything. There is nothing
in the report regarding the Mainstreet Program or how
my client's actions or inactions or conditions that he
comply with or anything. There is nothing about that
in this packet.
MS. DOUGALL-SIDES: The question is intended to
introduce a letter from the Mainstreet committee
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chairman directed to Mr. Stone. This hearing and the
objections to the project and the code section
regarding this here does provide that the additional
code may be imposed as Mr. Nott has certainly --
MR. MAGUIRE: We understand that new matters will
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~e hrought u~ and be cDnsjdered as part of this
2, proc~dure~ I have no objection.
.'3 HEARING OFFICER: ., You may l'rQv-ide the Mainstreet
4 Pro~ram ag th9 etate ~grtifi~at1Qn that re~ogniz9s
5 that Mainstreet -- in this country and G~PQcially in
6 the State o.f Florida, they have deteriorated the areas
7
and it creates and recognizes some incentives whi~h it
8 usually provides a few businesses and on the
9 Mainstreet corridor, redeveloping the corridor'--
10 BY MS. DOUGALL-SIDES:
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Q
Now, the Mainstreet program is not specific to
A
NO, it's not.
Did you recently receive. a letter from Mr. Fowler
Q
from the design committee for the Mainstreet Prqgram?
A
Yes, I did.
Did you solicit th~t letter or did you
No, I had no idea.
Q
A
MS. DOUGALL-SIDES: I would offer a copy of that
letter as a City exhibit.
MR. MAGUIRE: 11m going to object to the fact
21 that it doesn't est~blish competent, substantial
22 evidence, but it certainly does corne to some
23 conclusions on the record.
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MS. DOUGALL-SIDES: I was only using it as a
document that was received by the City Planning
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Department pertaining to the hearing.
HEARING OFFICER: Without objection "I' will
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receive it for that limited purpose. It is hearsay.
(City Exhibit 8 was marked.)
BY MS. DOUGALL-SIDES:
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o Mr. Stone, to your knowledqe, did the applicant
propose to a have a vehicle attendant or a mechanic on site
to provide for the used cars?
A Not specifically that I was aware of.
a Did you ever discuss that with Mr. Nott?
A No, I didn't.
Q Does that present a problem in your view?
A I think you will normally associate any kind of
vehicle sales with some type of on-site maintenance.
Historically, in very small lots that could help get them
cranked up when something wouldn't turn over, such as
f .............",
jumper cables or something to get the vehicle started.
Q In your review of Ms. Gerli's report was there a
post office building across the street?
A Yes.
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o Do you have an opinion regarding the
compatibility of the post office project with the building?
A I would concur that the post office is an
important component of downtown and the Cleveland main
street area. It is' kind of the anchor of the east end of
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downtown. It's one that a lot of pe~ple associate
2 architecturally and design-wise' and that we've tried to
3 introduce those design elements. So to the extent that
4 this kind of project, which is proposed is moving away or
5 not sympathetic to the post office, I think thatts a
6 problem.
7
'Q
Showing you the City's Exhibit 3, which is an
8 exhibit concerning the property or what the property
9 appears on, did, YO\l ever receive a configuration of'the
10 applicant's block' and the immediate vicinity? How would
11 you characterize that subdistrict?
12
A
Its characteristic is the lots are relatively
13 narrow. They have more depth. They do not have the kind
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of area that normally you would associate with being able
15 to get all of the modern standards that are required for
16 the development. Although I would say he has a very small
17 building which gives him the building and all of those
18 requirements on the side. It has the Pinellas Trail, it
19, runs immediately to the west between his property and the
20 post office which is kind of a unique circum~tance.
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o
Would you expect to find an outdoor vehicle sales
22 use on such a lot?
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I think traditionally in older downtown car
businesses that are encouraged -- and I can tell you from
having administered several redevelopment areas in powntown
25
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circumstances' in terms. of marketing, property downtown when
you see these things popping up, that's the kind of signal
away from coming in and participating in the downtown.
o You said you have some experience in
administering?
A I administered for the City of St. Petersburg,
three of which were in the downtown area including main
street, prepared for the City of Destin downtown
redevelopment plan and participated in the preparation for
the City.
o Are you familiar with the City of Clearwater's
downtown plan that's been referred to --
A Yes, I am.
Q. Understanding it.s in the code provision which is
generally proposed by that plan for the subject property or
the subject block, 1 guess you would say.
A The area in general is the core of the downtown.
As I said, the main street where a lot of improvements have
kind of reached this perimeter, and we need to amend and
expand those east and south and north.
The particular property is a key one because
of its proximity to that ~rea. It fronts ri9ht on --
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3 STATE OF FLORIDA
CERTIFICATE OF REPORTER
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4 COUNTY OF PINELLAS
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6 I, KIMBERLY HAMMOCK, Court Reporter, certify that
7 I was authorized to, and did stenographically, report the
8. ~oregoing deposition: and that the transcript 1s a true record
9 'of the testimony given by the witness. '
10 I further certify that I am not a relative,
11 employee, attorney, or counsel of any of' the parties, nor
12 am I a relative or employee of any of the parties' attorneys
13 or counsel connected with the action, nor am I financially
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interested in the action.
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Dated this 25th day of May, 1999.
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KIMBERLY S. HAMMOCK
COURT REPORTER
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