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11/08/1993 CITY COMMISSION MEETING November 8, 1993 The City Commission of the City of Clearwater met in regular session at City Hall, Monday, November 8, 1993 at 6:00 p.m., with the following members present: Rita Garvey Mayor/Commissioner Arthur X. Deegan, II Vice-Mayor/Commissioner Richard Fitzgerald Commissioner Sue A. Berfield Commissioner Fred A. Thomas Commissioner Also present: Michael J. Wright City Manager M.A. Galbraith, Jr. City Attorney William C. Baker Public Works Director Scott Shuford Central Permitting Director Cynthia E. Goudeau City Clerk Mary K. Diana Assistant City Clerk The Mayor called the meeting to order and led the Pledge of Allegiance. The invocation was offered by William C. Baker. In order to provide continuity for research, the items will be listed in agenda order although not necessarily discussed in that order. ITEM #3 - Service Awards - none. ITEM #4 - Introductions and Awards Citations of Appreciation were presented to Winfred A. Infinger for service on the Neighborhood Advisory Committee and to Kenneth G. Hamilton for service on the Planning and Zoning Board. ITEM #5 - Presentations - none. ITEM #6 - Minutes of the Regular Meeting of September 14, 1993 Commissioner Deegan moved to approve the minutes of the regular meeting of September 14, 1993, as recorded and submitted in written summation by the City Clerk to each Commissioner. The motion was duly seconded and carried unanimously. PUBLIC HEARINGS ITEM #7 - Public Hearing & First Reading Ord. #5489-93 - Vacating south 1.5' of the northerly 10' drainage & utility easement lying in Lot 197, Woodgate of Countryside Unit One (Gantley V93-12)(PW) The applicant has a pool structure which encroaches approximately 1.4 feet and the decking another 7.3 feet. The City has no existing utilities within this easement. This request has been reviewed by the various city departments and divisions concerned with vacations and there are no objections. Florida Power, General Telephone and Vision Cable have reviewed this request and have no objections. Commissioner Fitzgerald moved to approve the vacation of the south 1.5 feet of the northerly 10 foot drainage and utility easement lying in Lot 197, Woodgate of Countryside Unit One. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5489-93 for first reading and read it by title only. Commissioner Fitzgerald moved to pass Ordinance #5489-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #8 - Public Hearing & First Reading Ords. #5483-93, #5484-93 & #5485-93 - Annexation, Land Use Plan Amendment to Commercial General for Parcel A and to Residential/Office/Retail for Parcel B and CG Zoning for both parcels, for property located at 23917 US19N, Parcel A - Hill-Top Sub., part of Lot 7, Parcel B - Ehle Sub., part of Lot 1 (U-Haul of West Coast of Florida A93-22, LUP93-30)(CP) Staff recommended this item be continued. Commissioner Deegan moved to continue this item to November 18, 1993. The motion was duly seconded and carried unanimously. ITEM #9 - (Cont. from 6/3/93) Public Hearing & First Reading Ord. #5398-93 - IL Zoning for property, Parcels A & B, located at 508-602 N. Garden Ave., Parcel A - Nicholson & Sloan's Addition, Lots 7 & part of 8; Parcel B - Nicholson & Sloan's Addition, Lot 9 and part of Lot 8 and Bidwell's Oakwood Addition, Lot 29 & 30, approx. 1.12 acres (Bilgutay Z93-04)(CP) The subject property is located on the west side of Garden Avenue North, one block east of North Fort Harrison Avenue, approximately 370 feet south of Eldridge Street. The applicant is requesting a change in zoning for present and future expansion of her business (Pace Tech, Inc.). The Downtown Clearwater Periphery Area Plan proposes that a "performance zoning" approach be utilized for the Northwest Expansion Area of the Central Business District where the subject property is located. The priority uses for the area are proposed to be high density residential and "high tech" manufacturing. Pace Tech falls into the latter classification, and is an appropriate use for the proposed district. The Future Land Use Plan category for the applicant's property was changed to Central Business District with the recently approved expansion of this classification by the Commission. Property with a Central Business District Future Land Use category can be assigned any of the City's zoning districts. Limited Industrial is being requested because it is the only zoning district in which manufacturing is a permitted use. At their meeting on May 18, 1993, the Planning and Zoning Board recommended approval of this request. Commissioner Thomas questioned how the industrial zoning will fit in with the Department of Transportation's long range plan for the Alternate 19/Ft. Harrison Avenue corridor which is geared for more residential on Ft. Harrison Avenue. Mr. Shuford responded staff has been directed to look at high density bonus residential on the west side of Ft. Harrison Avenue with the remainder being available for high tech manufacturing. Mayor Garvey said most of this area is already zoned commercial. Mr. Shuford pointed out this area has the most number of zoning classifications. Commissioner Thomas felt the City should be considering where they want to be in the next ten years along this corridor. He said they needed to consider whether there was any intent to develop this corridor as an entertainment area and/or residential or industrial area. He questioned whether high tech manufacturing would be compatible with multi-family residential. He felt staff should come forward with a plan. Mr. Shuford pointed out the Commission has adopted the peripheral plan which included this area indicating direction had been given to look at mixed uses. This request was determined to be compatible with the adopted plan. In response to a question, Mr. Shuford responded assigning the industrial zoning will not limit the City regarding other requests. Commissioner Deegan moved to approve limited industrial zoning for the subject property. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5398-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5398-93 as amended on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #10 - No item. ITEM #11 - (Cont. from 10/7/93) Public Hearing & First Reading Ord. #5460-93 - LDCA amending Secs. 44.08 & 44.54, to allow temporary signs under certain circumstances (CP) The Commission has requested a revision of the sign regulations to provide for temporary signs for new businesses and for businesses having their signs damaged in isolated storm events or through acts of vandalism. At the October 7, 1993, Commission meeting, the Commission provided staff with additional direction regarding changes to the first draft of Ordinance #5460-93. The first draft has been revised to address Commission concern by: a 30 day maximum sign allowance would be established for new businesses, as opposed to the previous 90 day allowance; a provision is made for the City Manager to determine the location for temporary signs for major public works projects or major storm events rather than the Commission; pennants (strings of pennants) would be allowed for a 14 day period for new businesses and businesses having name changes; and cold air balloons have had their size measurement clarified, and would be restricted to a 3 day time period. The Commission was also concerned that some provision be made to ensure that signs would be located in a manner that would not negatively affect pedestrian or motorist safety. Staff would refer the Commission to Section 44.53 of the sign regulations which governs the placement of all signs, including exempt and temporary signs. This section prohibits signs from being located in ways that would affect pedestrian or motorist safety. Staff will develop a special permit form and instructions for applicants that will bring all applicable ordinance requirements to the attention of all persons needing these permits. In response to a question by the Mayor regarding (c)(5) and (d) on page 3 of the ordinance, Mr. Shuford explained a mix and match option of various signs can be used during the 30-day time limit for sign displays. Commissioner Thomas expressed concern the 3-day limit for cold air balloons is confusing and may be misinterpreted. Commissioner Deegan expressed concern in not being able to apply for a sign permit in advance as this did not allow for future planning. He recommended changing the word "issuance" to "installation" regarding the time limitations for these signs. Commissioner Berfield asked this change also be made regarding pennants. This change will be made at second reading of the ordinance. Commissioner Fitzgerald expressed concern in regard to allowing up to 200 square feet for pennants as he felt this was excessive. Commissioner Thomas recommended a maximum of 100 square feet. This change will also be made at second reading of the ordinance. Commissioner Deegan moved to approve the land development code amendment concerning temporary signage. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5460-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5460-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #12 - Final Site Plan and Second Reading - Ord. #5465-93 - Land Use Plan Amendment to Institutional for property located in Westover Sub., Blk B, Lots 3-11, 15 & 16; Second Reading - Ord. #5466-93 - Public/Semi-Public Planned Development District Zoning for property located at 1260-1266 Bay Parkway, 300-322 Watkins Rd., 317 Pinellas St., Westover Sub., Blk B, Lots 3-11, 15 & 16, Parcel A, AND 1263 Waters Ave. and 301-309 Pinellas St., Westover Sub., Blk B, Lots 12-14 and Barnes Sub., Lot 4, Parcel B, 2.21 acres m.o.l. (Morton Plant Hospital Association, Inc., LUP93-28, Z93-11) Morton Plant Hospital proposes to construct a 33,300 square feet (gross floor area), three story Cancer Care Center and associated parking on a 2.21 acre parcel. The building is proposed to be located on a city block with the exception of three existing platted residential lots located at the northeastern portion of the block. The property's Land Use Plan classification is Public/Semi-Public and Residential/Office with the proposed zoning being amended from P/SP and OL to P/SP-Planned Development zoning. The proposed development abuts the city limits of Belleair and Clearwater on the west and south sides. At their meeting on October 5, 1993, the Planning and Zoning Board endorsed the proposed Future Land Use Plan Amendment to Institutional and zoning atlas amendment to P/SP-Planned Development. On October 14, 1993, the Development Review Committee (DRC) reviewed and approved with conditions the site plan for the Cancer Care Center. City staff recommends the utilization of Waters Avenue, a city street having a 33 foot right-of-way, to provide a heavily landscaped buffer between the proposed Cancer Center and the Belleair residential area abutting to the west. The site plan also utilizes the north ten feet of the Watkins Street right-of-way; this ten feet is proposed to be utilized together with the required five foot landscape buffer along the south side of the hospital's property to provide a 15 foot buffer and a sidewalk from the existing Belleair residential area. This will provide a heavily landscaped buffer of 15 feet between the Cancer Center and the Belleair residential area located to the south. The land to the east and north of the proposed development is owned by the applicant and is part of the hospital complex. Attorney Emil Marquardt, representing Morton Plant Hospital, reported the Belleair City Council voted to support the request. William Heald, representing some of the area residents, stated they received no notice of the Belleair meeting. He felt the state of Florida, in granting rights to non-profit organizations to do business, should be more receptive to citizens' concerns. He expressed concern regarding the size of the campus and questioned whether there should be a ceiling on the hospital's growth. He also referred to a home that had been bulldozed. In response to a question, Mr. Marquardt responded the home was bulldozed to allow for expansion of a home next to it and was not in Clearwater. Commissioner Thomas referred to a letter from Morton Plant Hospital which indicated they had no problem with replacing landscape buffering on City right-of-way on their property if requested by the City. Mr. Marquardt agreed this is what the letter said; however, this is not in the current plans and would cause a hardship, adversely affecting parking. Commissioner Thomas asked the Commission to amend the request to increase the buffering with Morton Plant contributing 30 feet allowing a total of 60 feet of buffering between houses.  He felt it important to protect the homes with a maximum buffer indicating the City owed this to the residents. Commissioner Deegan pointed out the Town of Belleair felt comfortable that the neighborhood was adequately protected with the buffering indicated in the plan. Commissioner Thomas moved that Morton Plan Hospital match the 30 feet of buffering with 30 feet of their own. The motion was duly seconded. Commissioner Berfield expressed concern 20 parking spaces would be lost. Commissioner Thomas felt the building could be shifted back. Mr. Marquardt said they already shifted the building. Commissioner Thomas said he was trying to protect the neighbors with a larger buffer. Upon the vote being taken, Commissioner Thomas voted "aye;" Commissioners Fitzgerald, Berfield and Deegan and Mayor Garvey voted "nay." Motion failed. Commissioner Thomas pointed out Mr. Marquardt had stated at the previous hearing a site plan for the entire campus would be submitted prior to approval being requested for any future projects and expressed concern there were no legal requirements for them to do so. The City Attorney suggested adding a condition to the site plan regarding further applications for construction of buildings. The City Manager questioned how this would be enforced once the building was constructed. Mr. Marquardt pointed out the Commission has control over the approval of site plans and said the hospital will not come forward with any new requests until a plan is submitted for the entire campus. Commissioner Thomas questioned the possibility of putting legal binding language in the approval of the site plan. Mayor Garvey suggested addressing it with a separate motion. Commissioner Fitzgerald moved to approve a Future Land Use Plan amendment to Institutional; P/SP-Planned Development zoning and a final site plan for the subject property subject to conditions attached hereto as Exhibit A, and as such, made a part of the minutes. The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5465-93 for second reading and read it by title only. Commissioner Fitzgerald moved to pass and adopt Ordinance #5465-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. The City Attorney presented Ordinance #5466-93 for second reading and read it by title only. Commissioner Fitzgerald moved to pass and adopt Ordinance #5466-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. Commissioner Thomas moved the City not accept any capital construction projects for new construction for Morton Plan Hospital until they submit a site plan for the entire campus and it is approved by the City Commission. The motion was duly seconded. Mr. Marquardt said the hospital will be submitting a site plan for review and questioned what was meant by approved site plan. Discussion ensued in regard to how detailed a document should be when submitted for review. The City Manager cautioned they needed to be clear if they are talking about a Master Site Plan or a Master Plan. Commissioner Thomas indicated he was looking for specificity. Commissioner Deegan expressed concern if too specific, there would not be room for flexibility for a minor change. He said he did not know of any institution that comes forward with a 20 year site plan for approval. He found the motion on the floor unnecessary. He questioned whether the City should be approving the hospital's plan indicating this should be done by their board unless a Development of Regional Impact (DRI) application is filed. Commissioner Thomas felt maybe this should be a DRI. He stated he did not want this to be piece-mealed or to allow neighborhoods to be "gobbled up". Commissioner Fitzgerald agreed with Commissioner Deegan indicating there are mechanisms to control development. Mayor Garvey expressed concern that other developers' applications are not treated in this manner. Mr. Shuford indicated any new development would require a site plan amendment. Mr. Heald felt there should be some type of binding agreement. Commissioner Deegan indicated that Morton Plant has produced a Master Plan and is modifying it in response to neighborhood input. Commissioner Thomas withdrew his motion and the seconder concurred. Commissioner Thomas moved that the City shall accept no applications for amending this site plan, for any new site plan for the Morton Plant Hospital or conditional uses or building permits for any uses or major improvements not shown on the site plan approved by the City Commission on November 8, 1993 or for uses or major improvements not already in existence on November 8, 1993, on the Morton Plant Hospital "campus," until a master development plan for the entire Morton Plant Hospital "campus" has been submitted to the City and has received at least tentative approval by the City Commission; for the purpose of this motion, "major amendment" means any improvement which adds impervious surface to the property. The motion was duly seconded. Leslie Conklin said the Commission needs to look at the entire campus and what the impact of the next development will be. Mr. Marquardt said his only concern regarding the motion is the word "approved" as the plan would be submitted for review to get input. Discussion ensued in regard to allowing flexibility. Commissioner Deegan expressed concern the motion would prevent the hospital from purchasing additional land not shown on the plan. Commissioner Berfield questioned whether this motion should be fine tuned. Commissioner Fitzgerald asked to call the question. Upon the vote being taken, Commissioners Berfield and Thomas voted "aye;" Commissioners Fitzgerald and Deegan and Mayor Garvey voted "nay." Motion failed. Public Hearing - Second Reading Ordinances ITEM #13 - Ord. #5374-93 - Land Use Plan Amendment to Commercial General for property located at 2339 Gulf to Bay Blvd., Sec. 18-29-16, M&B 31.071, approx. 0.64 acres m.o.l. (Lokey Oldsmobile, Inc., LUP93-12) AND ITEM #14 - Ord. #5375-93 - CG Zoning for property located at 2339 Gulf to Bay Blvd., Sec. 18-29-16, M&B 31.071, approx. 0.64 acres m.o.l. (Lokey Oldsmobile, Inc., Z93-03) Commissioner Thomas moved to continue Items #13 and #14. The motion was duly seconded and carried unanimously. ITEM #15 - Ord. #5461-93 - Land Use Plan Amendment for property located at 601, 605 & 607 Orange Ave., Turner's Third Add., Blk 12, Lot 4, Parcel A, to Institutional AND 604 & 606 Bay Ave., Turner's Third Add., Blk 12, part of Lots 1 & 2, Parcel B, to Institutional, 0.50 acres m.o.l. (Episcopal Church of the Ascension LUP93-26) AND ITEM #16 - Ord. #5462-93 - Zoning for property located at 601, 605 & 607 Orange Ave., Turner's Third Add., Blk 12, Lot 4, Parcel A, to Public/Semi-Public AND 604 & 606 Bay Ave., Turner's Third Add., Blk 12, part of Lots 1 & 2, Parcel B, to Public/Semi-Public, 0.50 acres m.o.l. (Episcopal Church of the Ascension Z93-10) Commissioner Berfield moved to continue Items #15 and #16. The motion was duly seconded and carried unanimously. ITEM #17 - Ord. #5473-93 - Traffic and motor vehicles, amending Section 30.057 to increase overtime parking fine from $5 to $10; adding new subsection (9) to Section 30.057 to provide for $5 surcharge on all parking fines to be used to fund the school crossing guard program Commissioner Thomas suggested a $7.50 fine for the mainland and a $15.00 on the beach. He found the $7.50 fine to be in tune with the rest of the county. He recommended adding large stickers to the parking meters indicating the hours of enforcement and the amount of the fine. Commissioner Thomas moved to amend Ordinance #5483-93 to increase the parking fine to $7.50 on the mainlands and $15.00 on the beach. The motion was duly seconded. Commissioner Deegan felt most people did not know the amount of the fine until they receive a ticket. He pointed out parking in downtown is at a premium, too, and did not feel anything was being accomplished by having two levels of fines. Anne Garris asked what brought about this amendment to the parking fines. Mayor Garvey pointed out in some cases it is cheaper to pay the fine than the parking fee. Ms. Garris said Clearwater beach is not strictly a tourist area indicating residents need to park in the neighborhood. She asked the Commission to postpone any decision until the people on the beach have an opportunity to provide input. Upon the vote being taken, Commissioner Thomas voted "aye;" Commissioners Fitzgerald, Berfield and Deegan and Mayor Garvey voted "nay." Motion failed. Commissioner Deegan asked for clarification regarding Section 30.057(2) improper parking. Attorney Rob Surette responded this ordinance merely imposes the parking penalty. It was felt there was no need to provide the definition of improper parking as it is located elsewhere in the code. Commissioner Berfield moved to amend Ordinance #5473-93 by deleting in Section 30.057(2) all language except "Improper parking." The motion was duly seconded and carried unanimously. Commissioner Thomas requested an amendment to provide the hours of enforcement and the amount of the fine on all parking meters. Discussion ensued regarding the design of the stickers for the parking meters and direction was given for staff to come back with a recommendation. The City Attorney presented Ordinance #5473-93 as amended for second reading and read it by title only. Commissioner Deegan moved to pass and adopt Ordinance #5473-93 as amended on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #18 - Ord. #5474-93 - Annexation for property located at 2088 & 2090 Sunnydale Blvd., Clearwater Industrial Park, part of Lot 2 (Sunshine Properties A93-21) The City Attorney presented Ordinance #5474-93 for second reading and read it by title only. Commissioner Thomas moved to pass and adopt Ordinance #5474-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #19 - Ord. #5475-93 - Land Use Plan Amendment to Industrial Limited for property located at 2088 & 2090 Sunnydale Blvd., Clearwater Industrial Park, part of Lot 2 (Sunshine Properties LUP93-29) The City Attorney presented Ordinance #5475-93 for second reading and read it by title only. Commissioner Fitzgerald moved to pass and adopt Ordinance #5475-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #20 - Ord. #5476-93 - IL Zoning for property located at 2088 & 2090 Sunnydale Blvd., Clearwater Industrial Park, part of Lot 2 (Sunshine Properties A93-21) The City Attorney presented Ordinance #5476-93 for second reading and read it by title only. Commissioner Deegan moved to pass and adopt Ordinance #5476-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #21 - No item. ITEM #22 - Ord. #5486-93 - Amending Sec. 47.161; amending certain sections of Standard Unsafe Building Abatement Code regarding unsafe buildings and systems The City Attorney presented Ordinance #5486-93 for second reading and read it by title only. Commissioner Thomas moved to pass and adopt Ordinance #5486-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. The meeting recessed from 7:50 p.m. to 8:02 p.m. ITEM #23 - Ord. #5490-93 - Creating new Article V within Ch. 41 to establish regulations for adult use establishments The City Attorney presented Ordinance #5490-93 for second reading and read it by title only. Assistant City Attorney Rob Surette presented additional analyses prepared by Senior Planner John Richter regarding separation distances and addressed the possible reconsideration of the amendments made at first reading of the ordinance. He said Mr. Bruce Green of the American Association of Family Law Center is in attendance to address the Commission. He said he has worked with Mr. Green who has vast experience in litigating cases challenging the constitutionality of adult zoning ordinances throughout the United States, to prepare Clearwater' ordinance. He said Clearwater needs to have an aggressive ordinance that is constitutionally defensible and the Commission will need to decide what is considered to be a reasonable number of businesses to allow in the City. Mr. Surette recommended the Commission reconsider their decision regarding the deletion of two of the three zoning districts previously proposed. He said he and the City Attorney had discussed the hardship relief procedures and feel the ordinance would be constitutionally defensible if those procedures are deleted. Mr. Surette said concern had been expressed regarding proliferation of these establishments within the City when combined with the enclave areas. He said the way the ordinance is written, the 500 foot separation from protected uses as well as the 1000 foot separation from other adult uses applies to enclaves. He presented an analysis of available acreage for adult use in the City which is 3.02% at 400 foot and 2.2% at 500 foot separations. Currently in the City there are six adult operations. At 500 feet, one establishment, Exclusive Video, will still conform with the other five nonconforming locations to be amortized. This would result in thirteen possible locations in the City. At 400 feet, four operations will be amortized out and there would be eighteen possible locations. Mr. Surette felt a 400-foot separation would provide a constitutionally defensible ordinance. He felt a 500-foot separation would put the City in an unclear arena. He said there is no constitutionally set ratio. He reviewed cases that had been litigated. He said the Commission is making a difficult decision and would need to consider the expense involved if litigated. Providing additional sites would give an added cushion and put the City in a strong defensible position. He reviewed a map of the City reflecting the three zoning districts being proposed. He again pointed out in eliminating the hardship provisions, the City would be fixing the locations of adult uses and pointed out the areas of Island Estates and Clearwater Beach could not meet the separation distances. Mr. Surette said he shared Commissioner Fitzgerald's concerns regarding adult businesses in the unincorporated areas and indicated the clear intent of this ordinance is to insure 1000 feet distance limitation between businesses wherever located. He reviewed photographs of possible locations which included the existing location, Exclusive Video. Commissioner Deegan asked if Boynton Beach's ordinance was found to be constitutional and the court held the alternative location need not be commercially viable, why are we making a point in trying to show that need. Mr. Surette said he was attempting to fit his presentation in with what Mr. Green has experienced in litigating these ordinances. He submitted photographs to the Commission showing possible locations and reviewed these sites. Mayor Garvey asked from where the 1000 foot separation distance is measured and Mr. Surette responded from the portion of the building occupied by that use. Mr. Surette said there are two properties at 500 feet from protected use, Chi Chi's and the Poseidon Restaurant, that are commercially viable for adult use. Mayor Garvey pointed out they would have to compete with other commercial uses. Mr. Surette said the City could expect some argument that enough sites have not been provided; however, felt if we have not excluded them totally from operating within the county, we have complied. He named additional locations at 400 feet which included Searstown. Commissioner Berfield asked how far the school was from Searstown. Mr. Richter said slightly greater than 1000 feet. Mr. Bruce Green presented background information on himself and the American Association of Family Law. He said his organization is made up of constitutional trial attorneys defending issues relating to the welfare of the traditional family. Such litigation accounts for approximately 30-40% of the law center and 85% of his time. He said he is involved in litigation in various states, etc. He stated he has reviewed the ordinance and commends the Commission for one of the most thorough adult use ordinances in the country. He felt the ordinance was based on the most detailed findings ever submitted indicating this ordinance is unquestionably aimed at curbing the secondary effects. He found it to be an even handed approach to providing for the welfare of the citizens. He said, in all likelihood Clearwater's ordinance would be constitutionally defensible as now drafted. Commissioner Deegan questioned if the ordinance was considered to be constitutionally defensible before amended at first reading and Mr. Green indicated it was. He said eliminating two zoning districts in which adult businesses could located would essentially reduce the available sites from 22 to approximately 5 with 4 or 5 existing businesses becoming subject to the amortization provision of the ordinance. He said in his opinion, if such changes are made, the ordinance would be indefensible. He felt five sites for a city the size of Clearwater would be found unreasonable. He said he understands the Commission's and citizens' concerns; however, cautioned that an ordinance is worth very little if found unconstitutional. Mr. Green commented judges do not deal with the intricacies of constitutional analysis but with reasonable analysis. He urged the Commission to not test the bounds of constitutionality indicating every provision of the ordinance must be able to withstand litigation. He felt no cautious constitutional trial attorney would have confidence in defending five sites in Clearwater. He urged the citizens to get behind the ordinance as proposed or with minimal change. He felt there should be approximately 20 alternative sites available for a city the size of Clearwater. Commissioner Deegan said in the Boynton Beach case the court held alternative locations need not be commercially viable and practical. Mr. Green responded once certain sites are provided the municipality need not guarantee that those sites are commercially viable. He said he is now seeing courts focusing on a comment made in Renton case which was to "not effectively deny opportunity." He pointed out in the Woodall case, the courts focused on what was allowed and relegated them to an area of undeveloped desert. He found this to be disturbing but said this is what is happening in the courts. He felt the proper way to approach is with an abundance of caution and to aggressively litigate with confidence. In response to a question from Commissioner Deegan, Mr. Green said the Barnes decision, in his opinion, is a landmark decision and indicated this decision addressed the law regarding public nudity versus the Renton case which addressed locational restrictions due to zoning. Discussion ensued in regard to both the Barnes and the Renton decisions and it was felt these two decisions should not be intermingled. Mr. Green felt public nudity should be dealt with separately. Commissioner Thomas asked what impact on the community would a new ordinance regarding nudity have after the subject ordinance is enacted. Mr. Green said it would restrict dress to whatever is defined in the ordinance and would be aimed at the conduct of public nudity. Commissioner Thomas asked Mr. Green how much time and money it would take to defend a suit all the way if the ordinance is passed as amended on first reading. Mr. Green responded it would take two full time attorneys and cost $250,000 if the case is won; cost could be as high as $500,000 if lost. Commissioner Thomas asked the odds of wining and Mr. Green responded less than 50% as amended. Commissioner Thomas asked the odds of winning with 500 foot and 1,000 foot separations and Mr. Green responded 70%; with 400 foot and 1000 foot separations distances and Mr. Green responded 80-85%. Commissioner Berfield asked what the City's chances would be to get to the Supreme Court and Mr. Green responded chances would be slim as only 100 of 6,000 cases submitted were selected; however, the City could win in the 11th Circuit. Gilbert Fisher, Raintree Village Condominium, spoke in opposition, expressing concerns regarding three of the available locations being in his neighborhood. He also expressed concern regarding the method of publicizing the ordinance. George Warner, attorney representing WGW Entertainment, Inc. (Baby Dolls), said portions of the ordinance are vague and overbroad and indicated an attack will come on those portions. He found the listing of the Bombay Bicycle Club as a viable commercial location to be ludicrous and pointed out most of the locations listed are currently occupied. He said the ordinance listed proposed alternative sites that are commercially impossible to obtain. He felt many findings in the ordinance do not apply to Baby Dolls. He said by using a 400 foot separation distance requirement only two businesses will have to be relocated. Pam Olson, representing Citizens Opposing Pornography, said she had been threatened by the owner of one of the adult entertainment facilities. She supported the 500 foot separation distance and recommended a greater distance. She said she is tired of cities being intimidated by pornographers. She said the citizens are tired of being abused and want the Commission to stand up and fight for their community. She urged the Commission to go with the 500 feet separation and proceed to address public nudity. Dr. Ruth Peters, child psychologist, said in her practice she deals with molested children and pointed out many child molesters spend time in adult establishments. She expressed concern regarding a proposed location being close to the Long Center location. Vera McGinnis, Raintree Village, said she is directly north of an area proposed for location of an adult use establishment and indicated she is personally offended. She said location of this adult establishment would front Hercules Avenue and Belcher Road and would be close to the Long Center. She expressed concern regarding decreased property values . She felt this issue was not appropriately advertised. She asked the Commission to outlaw these type businesses. June Fisher, Raintree Village, expressed concern regarding the secondary effects these establishments would have on surrounding churches, nursing homes, etc. Attorney Jan Halisky said the hearing tonight has an aura of unreality about it and said he has tried to express that in his brief. He felt if communities continue to take a conservative approach, communities will be threatened by this blight. He said his position is communities must take a more risky approach due to the level of endangerment to our areas. He disagreed regarding the dissent in the Barnes decision. Attorney Theresa Ward said she would not so easily cast aside and segment off the Barnes case and say it only applies to limited areas. She said Attorney Halisky brought up two good points in his brief (1) not every community has to allow adult use and (2) the impact of adult businesses on smaller communities could be proportionately greater than on larger communities. Patricia Lykes said she has worked with sex offenders and they are attracted by adult entertainments. She said these establishments also attract drugs and prostitution. She asked these establishments be restricted as much as possible. Art Larsen, Raintree Village, asked where the Commission stood regarding this issue. Attorney Leslie Conklin said he is not a first amendment scholar but is a board certified trail attorney. He said in the past he has represented Studebaker's regarding age discrimination. When asked what attorneys need in order to win, he said they always enhance their figures. He said the figures presented tonight regarding litigation will not be a single year expenditure. He felt unless the parameters are expanded, the money will not be spent wisely. He requested the Commission stay with 500 feet. Bruce McLaughlin, representing Rue Enterprises, Inc., referred to a letter submitted previously requesting additional time to address the Commission tonight. The Commission denied this request. He said there are procedural flaws in that a non-City employee (Mr. Green) was given 30 minutes to address the ordinance. He said by his appearance this evening he reserves the right of procedural challenge to the enactment of this ordinance. He pointed out the ordinance must be the least restrictive means to accomplish its end. He said none of the studies show any evidence there will be adverse secondary effects in the City. Ginger Tindle expressed concern regarding the Long Center being too close to the proposed adult entertainment location. She expressed concern the Hercules industrial area would become the adult mecca of Clearwater and asked if there were any costs regarding amortization of these establishment. It was pointed out there would be no costs. Anne Garris said if the City is going to spend a half million dollars, it should be done in a way that will protect Clearwater. She said it is nobody's constitutional right to allow a business that promotes child abuse. She did not feel adult establishments should be in anyone's back yard and supported making the ordinance tough. Cora Clark, business owner on Hercules, said she has already been contacted by an adult business expressing an interest in moving into the area. She expressed concern regarding a family restaurant and gym in the area surviving if such an establishment moves in. She cited prostitution and drug concerns. She asked the Commission to fight for what is right and clean. Julie Scribner said Clearwater is a family area and wants to see it stay that way. She said she is willing to have her taxes raised to fight these type establishments. Donny Lyles, representing Christian Fellowship of Pinellas County, said he has experience in counseling and has found when someone has been sexually abused, the abuser has been exposed to pornography in the home. He indicated their church is located on Hercules Avenue and he is concerned regarding businesses of this type being in the area. Jay Carpenter asked the Commission to protect the citizens of Clearwater. He expressed concern regarding this type establishment located close to the Long Center. He said Clearwater is unique and lawsuits regarding adult use ordinances that do not pertain to the City should not be considered. Dave Johnson said Clearwater is one of the best communities he has ever been in and supported the ordinance. He pointed out there are adult establishments surrounding the City of Clearwater. He felt the citizens and organizations in the community would come up with the funds if necessary to defend the ordinance. Charles Lykes expressed concern a citizen had been threatened by the owner of one of these establishments. He said it is the duty of the City to protect its citizens. He felt the Long Center was the jewel of the City and its integrity needed to be protected. Toni Hardiman said she moved to Clearwater due to its wholesome reputation. She says she does not feel safe anymore indicating she is no longer proud of the image Clearwater projects. Tammy Morty asked the Commission in making their decision consider these type establishments being 300 feet, 400 feet or 500 feet from their homes. Rita Peck, Christian Coalition of Pinellas County, said nobody wants these establishments in their back yards. She asked the Commission to consider what effect these places will have on its citizens. She felt there was a need to pursue the public nudity laws. Commissioner Fitzgerald said he did not favor adding highway commercial and commercial center districts back into the ordinance. He said he would like to provide more limitations due to the proliferation of these establishments in areas surrounding the City but not under its jurisdiction. He wants the ordinance to be as restrictive as possible. Commissioner Thomas asked Mr. Green if the Supreme Court had any rulings in the last 24 months that granted a community the right to set standards. Mr. Green responded not as it relates to zoning. Mr. Green said the only community standard evaluation he is familiar with deals with obscenities. Commissioner Thomas said he did not feel these adult establishments were part of a zoning issue but a community standard issue. He felt the community should establish standards and fight to maintain them. He asked Mr. Green if the zoning arena is the place to address community standards. Mr. Green said he did not advise doing this in an ordinance dealing with locational restrictions. Commissioner Thomas recommended making the proposed ordinance looser to where it is constitutionally defensible and coming back with a community standard, anti-nudity ordinance, focusing on the real problem. He felt we were going down the wrong path to solve the problem. He recommended coming back with a new ordinance establishing the standards of the community and wiping out adult establishments totally. He suggested going to referendum on the standards criteria. Commissioner Berfield asked input on banning these establishments. Mr. Surette expressed concern the community standard ordinance would be attacked on first amendment grounds of advance censorship. He said the way obscene activity is attacked is through aggressive law enforcement. Mr. Green said he recommends a City take the strongest possible measures to restrict these type businesses in their community and their adverse secondary effects. Commissioner Thomas said the City needs to build a spider web of ordinances to protect its citizens from the secondary effects of the sexually oriented businesses. He stated he would rather commit $2 million on ten fronts than $500,000 on one. Commissioner Deegan asked how far from the Long Center is the nearest site being proposed and Mr. Richter said a little more than 500 feet. Commissioner Deegan submitted a petition with 220 signatures registering opposition to the ordinance. He commended Mr. Surette and Mr. Green for putting together the background information. He clarified that Mr. Green is in attendance because the City asked him to attend and provide his experience regarding the constitutionality of the proposed ordinance. He recommended not rescinding the amendments proposed at first reading of the ordinance. He felt the ordinance should be made as tight as possible and a public nudity ordinance be brought forward. Commissioner Deegan moved to leave Ordinance #5490-93 as amended on first reading; in the title, delete "providing for hardship relief;" beginning on page 15, delete all of Section 41.514 relating to "hardship relief;" on page 9, amend the definition of "public recreation area" by adding the following sentence: The term includes, but it is not limited to, the Pinellas Trail and other publicly owned property used for active or passive recreational uses. The motion was duly seconded and carried unanimously. Commissioner Deegan moved to amend Ordinance #5490-93 by including at the appropriate place in the ordinance, the paragraph on the bottom on page 9 in the brief from Mr. Halisky. Mr. Surette said the City would in effect be asking the court to be the legislative body and said he would be reluctant to defer to the judiciary the legislative function of the City. He said he took exception to Mr. Halisky's brief and to the analysis of the Barnes decision. He pointed out Boynton Beach dealt with sites not for sale. In response to a question, Mr. Green responded he found it a mistake to add the language for reasons Mr. Surette explained. Mr. Green said when these matters are litigated, you do not do them apologetically. Commissioner Deegan withdrew the motion on the floor. The seconder concurred. Commissioner Thomas expressed concern regarding focusing on one area for these type businesses and asked if the separation distance between similar businesses be increased to 2,000 feet. Commissioner Deegan said the ordinance has to be based on studies by staff. He sympathized with those not wanting these establishments "in their backyards" but they have to be allowed somewhere. Commissioner Thomas requested if this ordinance is adopted that staff immediately bring forward all methodology to restrict sexually oriented businesses. Commissioner Deegan moved to pass and adopt Ordinance #5490-93 as amended on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #24 - Ord. #5491-93 - Providing for regulation of cable television system rates, etc. The City Attorney presented Ordinance #5491-93 for second reading and read it by title only. Commissioner Berfield moved to pass and adopt Ordinance #5491-93 on second and final reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #25 - Special presentations of widespread public interest - None. The meeting recessed from 11:10 p.m. to 11:15 p.m. ITEM #26 - Citizens to be heard re items not on the Agenda Anne Garris asked the Commission to respond to the Environmental Advisory Committee's recommendation to notify the Boy Scout Council of the City's concerns the Lake Chataqua Boy Scout property and that the City seek funds to purchase this property. Commissioner Thomas noted this issue will be coming before the Boy Scout Council in February for a decision on how to not sell the property. Jeff West and Vincent Parch, manufacturer and marketer of LED signs, said complaints have been received from businesses regarding these type of signs not being allowed in Clearwater. Mr. Parch felt this type of sign complimented the sign ordinance in reducing visual clutter. Staff to review. Robert Wright expressed concern the 1993 Flood Insurance Reform Act could create erosion zones along coastal areas increasing the cost of flood insurance. He urged the Commission to act promptly to defeat this bill. It was noted a letter has been sent through the Florida League of Cities expressing the Commission's concern. CITY MANAGER REPORTS ITEM #27 - Receipt/Referral - RM-8 Zoning for property located at 1706 N. Highland Ave., Grove Circle Sub., Lot 16, 0.31 acres m.o.l. (Joyce & Leo Smith Z93-13)(CP) The subject property is located on the southwest corner of Grove Circle Court and North Highland Avenue. The applicant is requesting rezoning in order to upgrade his residential care facility (six bed) to a Level I group care facility (eight bed). Level I group care facilities are not allowed in single family zoning districts. The property along North Highland Avenue, from Sunset Point Road south to the Seaboard Coastline Railroad, has a mix of land use categories: Commercial General, Institutional, Residential High and Residential Urban. North Highland Avenue is classified as a City Collector. The road is proposed to be improved within the next two years. Commissioner Deegan moved to receive the applicant's request for RM-8 Zoning for the subject property and refer the request to the City Clerk to be advertised for public hearing. The motion was duly seconded. Commissioner Berfield expressed concern regarding changing the zoning to meet the needs of one person. Mr. Shuford indicated an agreement regarding spot zoning could be made and staff is not necessarily in favor of the request. In response to a question from Commissioner Thomas, Mr. Shuford said these type facilities are licensed and inspected by the state. Upon the vote being taken, the motion carried unanimously. ITEM #28 - Receipt/Referral - proposed LDCA re: neon signs and lighting (LDCA 93-15)(CP) The Commission directed staff to prepare a Land Development Code amendment regulating neon signs and lighting in such a manner as to preclude the use of neon for attention attracting displays other than as signage or architectural detailing. The proposed ordinance provides a definition for neon signs and lighting; permits the use of neon signs and lighting when used as signage or as a means of outlining architectural details; addresses the issue of nonconformities created by this ordinance, with nonconforming situations being grandfathered unless damaged or destroyed in excess of 50% of the value; and prohibits the use of neon signs and lighting unless specifically permitted as a sign or architectural detail outline. The Planning and Zoning and Development Code Adjustment Boards will need to review this proposed ordinance. Jeff West stated Calypso Bay was informed they could not install signs above the roof line. He felt the neon palm trees were not gaudy and were attractive. He stated businesses need thing to stimulate customers into the businesses. Commissioner Deegan moved to receive the proposed Land Development Code amendment regarding neon signs and lighting and refer it to the City Clerk to be advertised for public hearings. The motion was duly seconded. Commissioner Thomas said he was opposed to the amendment as he did not believe there should be another regulation regarding lighting and signage. He stated the use of neon has to abide by the sign code. He felt the City was creating a lighting ordinance that would be harmful to businesses. Upon the vote being taken, Commissioners Fitzgerald, Berfield and Deegan and Mayor Garvey voted "aye;" Commissioner Thomas voted "nay." Motion carried. ITEM #29 - No Item. ITEM #30 - Other Pending Matters a) Old Clearwater Harbor Bridge Demolition, (west end), seawall replacement - ratify City Manager's emergency approval of a Purchase Order issued to Inter-Bay Marine Construction Co., Largo, FL, for $30,000 (PW) On July 1, 1993, the Commission awarded a contract to The Hardaway Company of Tampa, Florida, for the demolition of the westernmost spans of the Old Clearwater Harbor Bridge. It was noted at that time there was a possibility the seawall sections would have to be replaced after the bridges were removed. During removal of the east bridge section it became apparent the bridge abutments could not be sawed off and the installation of two, short seawall sections would be required. The City requested a quote from The Hardaway Company to construct the seawalls on a "change order" basis. It was felt their quote was excessive and the City proceeded to obtain two other quotes. During a stormy high tide the City experienced a loss of material and subsequent failure of a 16 inch water line in the area due to erosion. At that time, the contractor was instructed to erect a temporary retaining wall and to leave the section on the west span of the old bridge at the existing seawall intact until it could be arranged for the construction of replacement seawalls. The City Manager instructed staff to issue a purchase order for construction of the replacement seawalls to Inter-Bay Marine, the lowest of the three quotes received, on October 20, 1993. The available balance of $184,734 as of October 26, 1993 in the Bridges/Docks/Seawall R&R capital improvement project is sufficient to fund this purchase order. Commissioner Thomas moved to ratify the City Manager's emergency approval of a purchase order issued to Inter-Bay Marine Construction Company of Largo, Florida, in the amount of $30,000 for seawall replacement in conjunction with Old Clearwater Harbor Bridge demolition. The motion was duly seconded and carried unanimously. CITY ATTORNEY REPORTS ITEM #31 - First Reading Ordinances a) Ord. #5492-93 - Relating to offenses, creating new Sec. 20.05, prohibiting graffiti, requiring the removal of graffiti within 3 business days following notice thereof Discussion ensued whether three days was sufficient time for removal. Commissioner Thomas moved to amend Ordinance #5492-93 to require removal of the graffiti within 10 calendar days following notice of the graffiti to private property owners and discovery of the graffiti on City property. The motion was duly seconded and carried unanimously. Commissioner Fitzgerald expressed concern this ordinance penalizes the property owner not the perpetrator. The City Attorney responded that the perpetrators are dealt with through other codes. Commissioner Fitzgerald questioned what happened if the property owners did not remove the graffiti within the time specified. The City Attorney stated it would become a code enforcement issue. Commissioner Fitzgerald indicated all the stop signs in the Countryside area have graffiti on them. Commissioner Thomas stated it has been found that quick removal stops graffiti. He indicated he had provided staff with information regarding a paint from which graffiti can be removed instantly. Commissioner Deegan indicated that the inclusion of "rock" in subsections (1)(a) and (2) on page 1 bothered him. His concern was that this included all rocks and he questioned how rock was defined. The City Attorney indicated "rock" could be removed. Commissioner Deegan moved to amend Sec. 20.05(1)(a) and (2) of Ordinance 5492-93 by deleting the word "rock." The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5492-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5492-93 as amended on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. b) (Cont. from 10/21/93) Discussion & Ord. #5482-93 - Relating to newsracks and vending machines on public rights-of-way and on public and private property; creating Sec. 28.10 regulating location of newsracks and prohibiting installation and maintenance of vending machines on public rights-of-way, providing definitions, providing for enforcement and for relocation and removal under certain circumstances The City Attorney pointed out a time frame needed to be established for obtaining permits for signs on vending machines as provided in subsection (4)(b)8. Consensus was to insert 30 days. Mayor Garvey said the Code Enforcement Task Force recommended the City preclude the establishment of newsracks and newspaper vending machines on public rights-of-way or public property in residential areas. A recommendation was made to address this at second reading. Mayor Garvey pointed out this was being done in the interest of aesthetics. Commissioner Deegan indicated it was also being done for safety reasons. The City Attorney presented Ordinance #5482-93 for first reading and read it by title only. Commissioner Thomas moved to pass Ordinance #5482-93 on first reading. The motion was duly seconded. Commissioner Deegan referred to page 3, subsection (3)(c) of the ordinance, regarding the newsracks not being installed within 5 feet of the curb. Mr. Baker said this was to prevent them from being oriented towards traffic due to safety concerns. In response to Commissioner Deegan's question, it was indicated newspaper racks do not fall under the definition of vending machines; however, the definition includes pay phones and ice machines. Commissioner Berfield referred to page 5, subsection (5)(c) of the ordinance, regarding the City relocating the dispensers. The City Attorney said the City would relocate only if they are a threat to public safety. She expressed concern regarding immediate removal by the City. The City Manager pointed out these dispensers become a problem during severe storms. It was felt language regarding simply removing and notifying the owner could be considered at second reading of the ordinance. Commissioner Thomas questioned whether mail boxes should be included and the City Manager said the postal service regulations would have to be reviewed. Upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. c) (Cont. from 10/21/93) Ord. #5434-93 - Appointive Boards and Committees of the City; amending Sections 2.061 through 2.069 Mayor Garvey said she was opposed to the amendments proposed by Commissioner Thomas. Commissioner Thomas recommended a term of four years with a term limit of eight years. Commissioner Fitzgerald pointed out some boards are selected by individual commissioners with their terms expiring with the Commissioners' term. The Mayor questioned the provision for appeal to the Commission if the City Manager removes a board member. Commissioner Deegan indicated board members can appeal to the Commission whether this is in the code or not. Mayor Garvey asked why subsection (2) of 2.064, requiring an individual to remain off a board for the length of a term was being requested. Commissioner Thomas indicated some citizens make a career of serving on a board. Commissioner Berfield said she would support 4 year terms if members whose terms have expired were off the board for one full term. Commissioner Deegan agreed with 4 year terms. Commissioner Berfield moved to amend Ordinance 5434-93 on page 3, Sec. 2.064, add a new subsection (1) to read as follows (and renumber the other subsections): (1) Except as may be required by state law, and notwithstanding any other provision of this code or a resolution of the city commission to the contrary, a term of office on any board shall be for four years. This provision shall not apply to any member of any board who is presently serving a term of greater or less than four years until the expiration of such term, but this provision shall apply upon expiration of the current term of each such member. The motion was duly seconded and upon the vote being taken, Commissioners Berfield, Deegan and Thomas voted "aye;" Commissioner Fitzgerald and Mayor Garvey voted "nay." Motion carried. It was stated the term of office for Neighborhood Advisory Committee members would be addressed in a separate ordinance. Commissioner Thomas moved to amend Ordinance 5434-93 on page 4, Sec. 2.067, add the following sentence: "Each board shall adhere to Robert's Rules of Order. The motion was duly seconded. Commissioner Deegan asked the motion be amended to address boards with their own bylaws. The City Attorney said language could be added by second reading of the ordinance. The maker and the seconder of the motion concurred. Upon the vote being taken, Commissioners Berfield, Deegan and Thomas voted "aye;" Commissioner Fitzgerald and Mayor Garvey voted "nay." Motion carried. Commissioner Thomas moved to amend Ordinance 5434-93 on page 4, Sec. 2.068, subsection (1), to read as follows: (1) . . . City employees shall provide support for a board upon invitation only. The motion was duly seconded. Concern was expressed staff had the opportunity to turn down the invitation and it was questioned how issues such as variances, etc. would be addressed. Upon the vote being taken, Commissioner Thomas voted "aye;" Commissioners Fitzgerald, Berfield and Deegan and Mayor Garvey voted "nay." Motion failed. Commissioner Thomas moved to amend Ordinance 5434-93 on page 2, Sec. 2.063, subsection (1), delete paragraphs (a) and reletter the remaining paragraphs (removes the Building/Flood Board of Adjustment and Appeals from the list of boards exempt from the residency requirement). The motion was duly seconded and carried unanimously. The City Attorney presented Ordinance #5434-93 as amended for first reading and read it by title only. He asked direction regarding Sec. 2.066(3) regarding appeal of the City Manager's decision. Commissioner Thomas moved to amend Ordinance 5434-93 by deleting on page 4, Sec. 2.066, subsection (3). The motion was duly seconded and carried unanimously. Commissioner Thomas moved to pass Ordinance #5434-93 as amended on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. d) Ord. #5493-93 - Downtown Development Board, amending Sec. 2.145, relating to freeholders' referendum elections, to provide for one ballot per parcel of property rather than one ballot per owner of property and revising or eliminating certain obsolete provisions Commissioner Deegan questioned whether this amendment would limit the referenda to a change in the downtown area boundaries or an election of board members and addressed the DDB members' concerns regarding voting. The City Attorney said the sections had been renumbered through republication of the code and the amendment addressed the voting change requested. The only required referendum is for boundary changes. It was requested Section 2.145 be changed by deleting "to approve a change in the boundaries of the downtown area". Commissioner Fitzgerald raised a question regarding dissolution and the City Attorney said this is addressed on page 3, subsection 8 and is consistent with the statutes in that the board makes the decision. In response to a question, the City Attorney said the dissolution of the district may be requested in the form of a petition by at least 30% of the freeholders. The Board can vote to dissolve without a referendum. The City Attorney presented Ordinance #5493-93 for first reading and read it by title only. Commissioner Berfield moved to pass Ordinance #5493-93 on first reading. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #32 - Other City Attorney Items a) Sidewalk Easement located in Sec. 10-29-15 (Alpha & Omega, Inc.) AND b) Sidewalk Easement located in Sec. 13-29-15 (Clearwater Lodge #127, F & AM Commissioner Thomas moved to approve the subject easements. The motion duly seconded and carried unanimously. c) Amendment of Agreement and Grant of Limited Easements between ZOM Bayside Arbors, Ltd. and the City of Clearwater The City Attorney said the easement agreement dates back to 1963 and the City is requesting a greater easement across the property. Commissioner Thomas questioned why there are no sewer impact fees being imposed on this major development. It was pointed out the old agreement did away with the impact fees in exchange for a sewer line across the property. Commissioner Thomas said he was not in favor of the amendment and asked how the City could get the developer to pay impact fees. Commissioner Berfield asked why this issue was not called to the Commission's attention when it was being negotiated. Attorney Ed Armstrong, representing the developer, said staff had explained this in a memo to the Commission. Mr. Baker pointed out the Commission did not have to approve this request; the City has had a 10-foot easement for years. Commissioner Thomas questioned if the City has to abide by the old agreement and the City Attorney responded "yes." In response to a question, Mr. Baker indicated the 10-foot easement is sufficient if replacement of the sewer line is necessary. Commissioner Deegan did not feel any displeasure should be directed at the developer because of this agreement which was executed back in 1963. Commissioner Deegan moved to approve the amendment to the subject agreement. The motion was duly seconded and upon the vote being taken, Commissioners Fitzgerald, Berfield and Deegan and Mayor Garvey voted "aye;" Commissioner Thomas voted "nay." Motion carried. Commissioner Thomas requested a stop sign and crosswalk be placed where Seville residents cross to get to the recreation center. The City Attorney responded the agreement could be amended. Commissioner Thomas moved to amend the ZOM Bayside Arbors, Ltd. agreement by adding the following language on page 2, paragraph 2, "ZOM Bayside Arbors, Ltd. agrees to place a pedestrian crosswalk and stop sign on the north side of Seville Boulevard. The motion was duly seconded and carried unanimously. Commissioner Thomas moved to approve the subject agreement as amended. The motion was duly seconded and carried unanimously. d) Res. #93-67 - Rescinding Res. #93-27 which requested Florida Legislature to revoke charter of Clearwater Downtown Development Board and dissolve said board The City Attorney presented Resolution #93-67 and read it by title only. Commissioner Thomas moved to pass and adopt Resolution #93-67 and authorize the appropriate officials to execute same. The motion was duly seconded and upon roll call, the vote was: "Ayes": Fitzgerald, Berfield, Deegan, Thomas and Garvey. "Nays": None. ITEM #33 - City Manager Verbal Reports a) Magnolia Street Pavilion/Dock - public opposition Central Permitting Manager Scott Shuford said staff was directed to replace the dock. When this item came before the Development Code Adjustment Board for variances, they were not prepared to handle the great deal of opposition. The board indicated unless there was substantial rebuttal to the opposition, they would deny the variances. Commissioner Thomas expressed concern regarding public access if the variances are denied and urged staff to go forward to rebuild the dock. He requested enhanced police protection. David Martens said only four property owners received notification of the public hearing before the Development Code Adjustment Board. He pointed out this is a public dock and expressed concern the bulk of the neighborhood does not know what is going on regarding this issue. He was shocked that four property owners could have this item continued. Mr. Shuford said the main objection is not to the dock but to the activities that are occurring there. Majority consensus was to go forward in pursuing the variances to rebuild the dock. b) Request to extend Length of Time for Code Enforcement Review Task Force (CERTF) A memo was received from Mr. Bruce Cardinal indicating the CERTF have yet to review chapters 36, 39, 41, 44, 47, 49, 52 and 55 of the code. He is requesting direction from the Commission as to whether they should proceed. He also indicated the task force would prefer monthly instead of weekly meetings. Commissioner Berfield moved to give the Code Enforcement Review Task Force additional time to review the code. The motion was duly seconded. Discussion ensued in regard to the task force providing a summary report with a complete recommendation so action can be taken on what has been done so far. The maker of the motion amended the motion to include a summary report of what has been done so far is to be submitted. The seconder concurred. Upon the vote being taken, the motion carried unanimously. The City Manager reported that on November 12, 1993 papers will be filed in court to take property for the Clearwater Pass Bridge. Public Works Director William Baker summarized the attempts made to get the appropriate parties together to negotiate; however, these attempts were unsuccessful. He stated staff made a diligent effort to negotiate. The Manager reported a presentation will be made on Wednesday to the Tourist Development Council in an effort to obtain $5 million for a convention center in the Maas Brothers Building. He will suggest to them, if we obtain the $5 million, the City will put the value of the land and the building into the project and will set aside funds to beautify the bayfront. Commissioner Thomas said he would be in attendance to show support and requested the other Commissioners also attend. ITEM #34 - Commission Discussion Items - none. ITEM #35 - Other Commission Action Mayor Garvey said a request has been received from Shirley Moran requesting a waiver of liability insurance. Staff to check on specifics and agenda for November 15th. The City Attorney asked direction regarding tree removal at Plumb Elementary School. Direction was given to set a joint meeting with the School Board before taking any legal action. The City Manager said the school once scheduled to be built on Landmark Drive is being considered again and felt it may give the City some leverage in negotiations with the School Board. Commissioner Deegan asked the status of the sale of the Sun Bank Building and the City Attorney responded closing in escrow could occur November 29 or sooner. ITEM #36 - Adjournment The meeting adjourned at 1:33 a.m. (11/9/93).