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03/03/2008CITY COUNCIL WORKSESSION MINUTES CITY OF CLEARWATER March 3, 2008 Present: Frank Hibbard John Doran Carlen Petersen George N. Cretekos Paul Gibson Mayor Vice-Mayor Councilmember Councilmember Councilmember Also present: William B. Horne II Jill S. Silverboard Rod Irwin Pamela K. Akin Cynthia E. Goudeau Patricia O. Sullivan City Manager Assistant City Manager Assistant City Manager City Attorney City Clerk Board Reporter The Mayor called the meeting to order at 2:07 p.m. at City Hall, following the Community Redevelopment Agency meeting. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. Fire Department Amend the Code creatina section 17.07 to enhance trench diaaina safetv and pass Ordinance 7918-08 on first readina Florida Statutes Section 633.025 (2007) requires a municipality, county, or special district with fire and life safety responsibilities to adopt and enforce minimum fire and life safety standards. Florida State Fire Prevention Codes do not address trench digging safety at this time. For the safety of construction workers working in trenches and for first responders rendering aid and medical services resulting from a collapse, entrapment, or an injury, the Fire & Rescue Department would like to strengthen the requirements of the minimum fire and life safety codes by implementing a local ordinance for trench digging safety. The ordinance requires: 1) Individuals, partnerships, corporations, and any other entity of any kind engaging in trench digging to be in compliance with this ordinance, laws of Florida, and OSHA (Occupational Safety & Health Administration); 2) A permit to be obtained from the City of Clearwater Building Department, and any permit holder shall follow the permit stipulations as outlined in the ordinance; 3) A fire inspector or designee shall periodically inspect trench digging sites, and enforce permit posting and compliance with OSHA; and 4) Violations of the article may result in revocation or suspension of trench digging permits; written notice of violations shall be issued for any deficiency; no further trench digging may take place until deficiency noted is corrected; deficiencies not corrected in a timely manner will result in a stop work order; flagrant and/or repeated violations shall be reported to OSHA. Permit costs will be included in a revised Fire and Life Safety Inspection/Permit Fees schedule, which will include "Trench Digging Permit $200." A draft of the trench-digging Council Work Session 2008-03-03 ordinance was provided to several construction affiliated companies asking for their input; and the responses received were favorable. Fire Chief Jamie Geer said staff has witnessed non-compliance with safety regulations for trench digging. When aware of problems, staff notifies OSHA, which has the authority to impose fines. The City Manager did not anticipate undue delays for applicants due to this requirement. Gas System Approve the Rollover (first of two authorized rollovers) of Bid 13-07 Gas Material - Meters and Regulators Lines 1, 2, 3, 4, 6, 7, and 15 in the amount of $232,000 to M. T. Deason Company, Incorporated for the period March 8, 2008 to March 31, 2009 and authorize the appropriate officials to execute same. (consent) M.T. Deason Company, Inc., P.O. Box 101807, Birmingham, AL 35210 was the low bidder who met specifications on Bid 13-07 for Lines 1, 2, 3, 4, 6, 7, and 15 with an actual bid of $231,670. M.T. Deason has agreed in writing to hold current prices through March 2009. The material is Code approved and the meters and regulators will be utilized on the CGS (Clearwater Gas System) Distribution System to include expansion into central Pasco County and City of Clearwater neighborhoods. CGS Managing Director Chuck Warrington said gas meters will not be replaced by digital ones. The next generation of meters will be automated. Meter readings currently have a minimal error rate. Engineering Approve a Contract For Purchase of Real Prooertv with Donna Andrus for orooerty leaall described as LAUREL LAKE SUBDIVISION, Lots 8, 9 and 10, in the sum of $395,000 plus estimated environmental inspection and closing expenses not to exceed $3,000, and authorize appropriate officials to execute same. toaether with all other documentation reauired to effect closing. (consent) The subject properties are improved with just over 3,900 square-feet of living space in two residential structures, containing a total of five rental units. The two structures are sited on three platted lots addressed as 600 and 610 South Duncan Avenue, containing a total of 34,480 square-feet of land (0.562 acre, more or less). The improvements are built upon lands that were once a wetland. The subject structures are within the 100-year flood plain, Special Flood Hazard Area "AE," and are included in FEMA's (Federal Emergency Management Association) repetitive loss list, each having experienced two inundations in recent years. Both properties have been recommended for purchase in the City's Stevenson Creek Watershed Management Plan ("Plan"). In December 2000, the City settled a lawsuit over related area flooding issues by purchasing two other duplexes abutting the rear of the subject properties. City staff approached property owner Donna Andrus in November 2007 about a potential purchase. Both the City and the owner hired State Certified Real Estate Appraisers to value the properties. The City appraiser valued the properties in total at $370,000. The owner's appraiser valued the Council Work Session 2008-03-03 2 properties at $444,000. The proposed purchase price is below the mid range of the two appraisals. A previously negotiated contract in the amount of $420,000 was rejected by Council at its February 4, 2008 Work Session, with direction given to renegotiate the purchase price prior to further Council consideration. The contract provides for closing on or before June 2, 2008, subject to securing a satisfactory environmental audit and fulfillment of other contract conditions, including having the units totally vacated. The structures will be removed or demolished following purchase and a pond will be constructed upon the property. In addition to removing the structures from FEMA's repetitive loss list and fulfilling a Plan recommendation, the pond will reduce flooding risk to adjacent properties and provide some water quality treatment required by the FDEP (Florida Department of Environmental Protection) permit for Beach Walk. Engineering Manager Elliot Shoberg said the City has complied with 60% to 90% of FDEP (Florida Department of Environmental Protection) required water quality treatment to mitigate Beach Walk construction. Planning Hotel Density Increases (Work Session Only) In her February 28, 2008, memorandum, Assistant Planning Director Gina Clayton reported the Planning Department will present ordinances to implement increases in hotel density as allowed by the Rules Concerning the Administration of the Countywide Future Land Use Plan. The agenda item will include amendments to the City's Comprehensive Plan, Beach by Design, and the Community Development Code. Draft amendments to the Comprehensive Plan set forth the policy framework for hotel density increases. The ordinance creates a new objective that specifies the importance of tourism to Clearwater's economy and the need to maintain and enhance it. Policies to implement the objective support: 1) development of new hotels; 2) adoption of higher density standards for hotels to ensure a sufficient supply of tourist accommodations; and 3) City's continued commitment to Chambers of Commerce and TDC (Tourist Development Council) in promoting Clearwater as a tourist destination. The ordinance also amends the Future Land Use Table to add the new maximum allowable densities and intensities for overnight accommodations as adopted by the PPC (Pinellas Planning Council). Current City hotel densities will be maintained so that a property owner has the option to develop at existing densities and not be subject to new PPC requirements. In each affected future land use plan classification, the amendment references the existing allowable density as the "base" density and the new higher density as the "alternative" density. Amendments are summarized: 1) Resort Facilities High (unless governed by Beach by Design) (approximately 63 acres): a) Base Density - 50 units/acre; FAR (Floor Area Ratio) 1.21; ISR (Impervious Surface Ratio) 0.95 and b) Alternative Density - 75 units/acre; FAR 2.0; ISR 0.95 for parcels less than one acre, 100 units/acre; FAR 3.0; ISR 0.95 for parcels one to three acres, and 125 units/acre; FAR 4.0; ISR 0.95 for parcels over three acres; 2) Residential/Office /Retail (approximately 13 acres); a) Base Density - 30 units/acre; FAR 0.40; ISR 0.85 and b) Council Work Session 2008-03-03 3 Alternative Density - 45 units/acre; FAR 1.0; ISR 0.85; 3) Commercial Limited (approximately 83 acres); a) Base Density - 30 units/acre; FAR 0.45; ISR 0.85 and b) Alternative Density - 45 units/acre; FAR 1.0; ISR 0.85; 4) Commercial General (approximately 1,424 acres); a) Base Density - 40 units/acre; FAR 0.55; ISR 0.90 and b) Alternative Density - 60 units/acre; FAR 1.2; ISR 0.90; and 5) Industrial Limited (approximately 313 acres) (amendment establishes ability to have hotels in this land use category; a) Base Density - 40 units/acre; FAR 0.55; ISR 0.90 and b) Alternative Density - 60 units/acre; FAR 1.2; ISR 0.90; To implement hotel densities on Clearwater beach to achieve economic parity with condominium development, the PPC's economic analysis indicated a need for 150 - 210 units/ acre. During discussions in August 2007, the Planning Department indicated it would need to analyze whether densities of this magnitude could be implemented and maintain City LOS (Levels of Service) for water, sewer, and transportation. According to the Engineering Department, the City has adequate capacity for water and sewer service for increased hotel densities. Development would have to be monitored and upgrades to the water and sewer distribution systems may be necessary in several locations. The Planning Department hired DKS Associates to conduct a traffic study to determine what density could be achieved within established LOS standards for the street network. The study included Clearwater beach and Sand Key since the road networks are inextricably linked and several properties on Sand Key have future land use plan designations (Resort Facilities High and Commercial General) that allow "alternative" higher hotel densities. The study analyzed the beach road network and intersections: 1) Court Street/Ft. Harrison Avenue; 2) Chestnut Street/Ft. Harrison; 3) beach roundabout; 4) Mandalay Avenue/Baymont Street; 5) Gulf/Gulfview boulevards; and 6) Gulf Boulevard/Belleair Causeway. Based on assumptions that recognized existing land use patterns, approved development orders, and potential redevelopment of approximately 33 acres, DKS modeled the densities necessary to achieve economic parity. Implementation of these densities would degrade the City's adopted LOS for transportation. DKS concluded that Clearwater beach could accommodate 1,385 hotel rooms (90 units/acre) and maintain the City's adopted LOS for transportation, provided relatively minor mitigation measures are implemented at the intersections of Ft. Harrison Avenue and Chestnut/Court streets. The study assumed additional hotel rooms on Sand Key. Staff requested DKS to translate 1,385 hotel units into a density per acre standard that could be applied to Clearwater beach. The study concluded that the appropriate density would be 90 units/acre. When the City Council began exploring higher densities on the beach, economic parity (150 - 210 units/acre) was a critical concern. The City Council also desired to facilitate the construction of mid-priced hotels that could replace the loss of the more affordable mom and pop hotels. Increasing hotel density to 90 units/acre for all properties within the area governed by Beach by Design would provide a substantial increase upon existing density (50 units/acre). However, this would only result in an increase that equates to three hotel rooms for every condominium unit and does not achieve the desired economic parity. Additionally, Clearwater beach is characterized by many small properties that never could accommodate such density increases on their site. The Planning Department believes the Council's goal of attracting mid- priced hotels to Clearwater beach could bet be achieved by maintaining the base density of 50 units/acre and place into a reserve those additional hotel rooms that could result from a density of 90 units/acre. Council Work Session 2008-03-03 4 At that end, the Planning Department recommends establishing a Hotel Density Reserve of 1,385 units that would be allocated by the City Council through a development agreement. Criteria to allocate units: 1) Properties that acquired density from the Destination Resort Density Pool are not eligible: 2) Properties with density transferred off to another property through an approved TDR (Transfer of Development Rights) application by the CDB (Community Development Board) after December 31, 2007, are not eligible; 3) minimum lot size of 0.75 acre (32,670 square-feet) required; 4) no more than 100 rooms can be allocated from the Reserve to a particular project and in no case shall a project exceed a density of 175 units/acre; 5) accessory uses inconsistent with amenities typical of a mid-priced hotel shall require compliance with the base Resort Facilities High FAR requirements; 6) maximum height restrictions of the character districts shall apply to any hotel using the Reserve (Old Florida - 75 feet, Marina District - up to 100 feet, all other districts - 100 feet). Reserve projects that use TDRs may exceed those maximums only if the specific number of TDR units exceeds the height limits and all other TDR criteria are met; 7) a transportation analysis using the MPO's (Metropolitan Planning Organization) countywide approach for concurrency management shall be required; 8) access to hotel units must be provided through a lobby and internal corridors; 9) a reservation system shall be required as an integral part of the hotel use and there shall be a lobby/front desk area that must be operated as a typical lobby/front desk area; 10) no hotel unit allocated from the Reserve shall be allowed to convert to a residential use; 11) a legally enforceable mandatory evacuation/closure covenant must be provided which requires the hotel to close as soon as practicable after a hurricane watch that includes Clearwater beach is posted by the National Hurricane Center; and 12) hotel rooms obtained from the Reserve and not constructed shall be returned to the Reserve. Amendments to the Community Development Code adopt the alternative densities and intensities established for overnight accommodations in the Commercial, Tourist, and Industrial, Research and Technology zoning districts. Amendments include revising the maximum development potential tables in each applicable zoning district to recognize existing densities as the "base" densities and add the higher "alternative" densities/intensities set forth in the proposed Comprehensive Plan amendments. Minor amendments are proposed to the existing flexibility criteria for hotels in the Commercial and Tourist Districts and two new criteria are being added: 1) if base density is exceeded, a development agreement is required to accompany the site plan application and the agreement must comply with recently adopted PPC requirements and 2) any hotel located in the Coastal Storm Area (expanded Coastal High Hazard Area) must submit an evacuation plan that requires the hotel to close when a hurricane watch is posted. The proposed ordinance also includes several amendments unrelated to the hotel density increases. One importantly brings consistency between the Comprehensive Plan and Community Development Code. The resort Facilities High future land use plan map designation is being recognized as consistent with the High Density Residential and Commercial zoning districts. Assistant Planning Director Gina Clayton said the traffic study considered peak hours, not Spring Break or holidays. As proposed, property owners would petition the City for units from the reserve. Properties that received Resort Pool units would not qualify. The cap would be 175/units acre. The amendment would bring consistency between the Comprehensive Plan and Code. Any future changes would require PPC approval. Staff will review if an additional FAR incentive could be offered to projects providing extra parking. Staff must verify that site Council Work Session 2008-03-03 5 plans are feasible before bringing them forward for City Council consideration. In response to a concern that increased density will exacerbate beach traffic problems, Ms. Clayton said services would become degraded if more than 1,385 units are added. Staff recommends limiting pool units to 100 per project to incentivize mid-range hotels and prevent larger properties from gobbling up the pool. Concern was expressed that limiting the number of available units per project could tie the hands of developers. In response to support of flexibility, the City Manager recommended that rules be as definitive as possible. A per project cap was recommended. Discussion ensued in support of a sunset provision to encourage timely hotel development. Traffic Operations Manager Paul Bertels said while Court Street/SR 60 improvements are scheduled, the City controls Ft. Harrison and can make upgrades as necessary. Consensus was to support a cap of 20% of the pool per project and for the pool to sunset in 10 years. Council Discussion Items Blackwood Proposal re: Progress Energy Property at Clearwater Beach Recreation Center In his November 17, 2007 letter, William Blackwood, owner of submerged land adjacent to Progress Energy property currently used by the City, proposed to trade land and miscellaneous rights with Progress Energy. According to the proposal, Progress Energy would: 1) obtain at least 20 acres of environmentally sensitive wetlands for mitigation use, currently valued at approximately $40,000 to $50,000 per acre; 2) eliminate holding and operating costs associated with upland property; 3) maintain complete and unencumbered access to underground utility service through permanent easement; and 4) contribute to improved waterfront access and green space restoration to Pinellas County waterfront, and potential access to any State provided incentives for such improvement. Blackwood would: 1) obtain conveyance of submerged land of the City boat ramp and recreation center; 2) pay approximately $600,000 through BayEsplanade.com,LLC to repair the boat ramp and adjacent seawalls; 3) obtain lease of upland area for parking; and 4) achieve cleanup of the visually blighted area of the Bay Esplanade waterfront. The City Attorney said City cooperation is requested as Clearwater has a month-to- month licensing agreement for the property. Assistant Parks & Recreation Director Art Kader said for 20 years the City has used the subject property to store beach cleaning vehicles and for free parking for recreation center, boat ramp, and library users. Improvements to the property depend on available funding. Staff will report on the ability to pave the lot for parking. The City has tried to purchase the property previously. City Engineer Mike Quillen said indications are positive that the City would be awarded a grant to construct the boat ramp. It was stated that Progress Energy, as a courtesy, requested City comment regarding the proposal. parties. Consensus was that the City has no comment as the proposal is between two other Council Work Session 2008-03-03 6 Beach Parking Garage Land Assembly The City Attorney recommended that the City issue a RFP (Request for Proposals) to hire a single representation broker to assemble land on Clearwater beach for City purchase to construct a parking garage. The broker may request a percentage or fixed fee as payment. Suggested parameters are for at least an acre, south of the roundabout, with access from at least two streets. It was suggested if the broker cannot assemble sufficient property, that the City pay for an analysis of that inability. It was stated the purchase price for the property must be fair. Consensus was for staff to move forward with the RFP and to include an analysis. Homeless/Panhandling Ordinance The City of St. Petersburg's panhandling ordinance and recent amendment are modeled in part on the City of Indianapolis' ordinance and the City of Ft. Lauderdale's ordinance. The United States Court of Appeals for the Seventh Circuit held that Indianapolis' ordinance did not violate the First Amendment. Gresham v. Peterson, 225 F. 3d 899 (7th Cir. 2000). The Eleventh Circuit Court of Appeals upheld the constitutionality of Ft. Lauderdale's ordinance as well. Smith v. Ft. Lauderdale, 177 F. 3d 954 (11th Cir. 1999). St. Petersburg's ordinance, similar to Indianapolis' ordinance, prohibits the act of soliciting money by charitable organizations as well as by beggars. Both ordinances exclude from the prohibition, however, the act of passively standing or sitting, performing music, or indicating in any other manner that a donation is being sought when no vocal request is made for money other than in response to an inquiry by another person. The two ordinances differ in that St. Petersburg prohibits "panhandling" in one defined zone, whereas Indianapolis prohibits "panhandling" on public property throughout the city after sunset and before sunrise and at several other locations regardless of the time of day, such as bus stops, sidewalk cafes, or the area around banks and automatic teller machines. Because begging, similar to other charitable solicitations, is speech entitled to First Amendment protection, Gresham v. Peterson, Id. at 904, citing Smith v. Ft. Lauderdale, 177 F.3d 954 (11th Cir. 1999) and Loper v. New York City Police Depart., 999 F. 2d 699 (2d Cir. 1993), the Seventh Circuit in Gresham analyzed Indianapolis' ordinance under the time-place- manner test in Perry Educ. Assn v. Perry Local Educators' Assn, 460 US 37, 45, 103 S. Ct. 948 (1983): the regulation must be content neutral, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternative channels of communication. Although the district court in Gresham had held that the Indianapolis ordinance was content neutral, the parties stipulated that issue for purposes of the appeal. Thus, the Seventh Circuit refrained from deciding the first prong of the test. 225 F. 3d at 902, 904-05. However, the Federal District Court for the Southern District of Ohio held that the City of Cincinnati's ordinance, which regulated similar conduct as that regulated by the City of Indianapolis' ordinance, was content neutral. Henry v. Cincinnati, 2005 WL 1198814 (S.D. Ohio). Having assumed that Indianapolis' ordinance was content neutral, the Seventh Circuit then determined whether the ordinance served a significant governmental interest. Citing to several U.S. Supreme Court decisions in which the Court had recognized a state's interest in ensuring the safety and convenience of the public by promoting the free flow of traffic on public Council Work Session 2008-03-03 7 streets and sidewalks, the Seventh Circuit determined that the ordinance satisfied the second prong of the test. 225 F. 3d at 906. As to the third prong, the plaintiff argued that the nighttime ban on verbal requests for money was substantially broader than necessary and therefore could not be considered narrowly tailored. The Seventh Circuit determined that the city chose to restrict panhandling only in those circumstances where it considered the activity especially unwanted and bothersome, such as at night and around banks, sidewalk cafes, etc., and that the ordinance left open ample alternative channels of communication: a person could still solicit at night so long as the person did not vocally request money; moreover, a person had numerous other locations in the city to solicit during the day and could engage in telephone and door-to-door solicitations regardless of the time of day. Id. at 906-07. St. Petersburg's ordinance also shares some similarities to Ft. Lauderdale's ordinance. Ft. Lauderdale's ordinance also prohibits "soliciting, begging or panhandling" in a specified zone: a certain five-mile strip of beach and two attendant sidewalks. In applying the time-place- manner test in Perry Educ. Assn, the Eleventh Circuit Court of Appeals in Smith v. Ft. Lauderdale held that the ordinance was content neutral, was narrowly tailored to serve the city's interest in providing a safe, pleasant environment and in eliminating the adverse impact on tourism, and left open many other locations in the city in which a person could solicit, beg, or panhandle. 177 F. 3d at 956-57. Therefore, the citations of authority mentioned above would support the City of Clearwater's adoption of an ordinance regulating begging and other solicitations in a limited area of the City so as to protect the adverse impact such activities have on tourism, for example, in the area. Discussion ensued regarding adopting the St. Petersburg model and prohibiting panhandling on public property in two zones: Clearwater beach and downtown. Assistant City Attorney Rob Surette said a police officer would have to witness the violation to cite. St. Petersburg's efforts have been effective in curbing panhandling activities. It was questioned if the City could force homeless individuals to respond to citations. Staff will report if perpetrators can be arrested and if police officers could issue citations instead. The City Manager supported the measure to contend with behavior that conflicts with the tourist area. The City Attorney suggested the ordinance allow the continuation of Sunsets at Pier 60 activities and related events, which permit vendor solicitation. Mr. Surette recommended limiting the downtown zone to the downtown core where tourist impact can be confirmed. Other Council Action Councilmember Petersen expressed concern that the Homeless Leadership Network is facing serious budget cuts to programs aimed at helping the homeless. Adjourn The Work Session adjourned at 4:13 p.m. Council Work Session 2008-03-03 8