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06/18/1997CITY COMMISSION SPECIAL MEETING CITY OF CLEARWATER June 18, 1997 Present: Rita Garvey Mayor Bob Clark City Commissioner Ed Hooper City Commissioner J. B. Johnson City Commissioner Karen Seel City Commissioner Kathy Rice Deputy City Manager Bob Keller Assistant City Manager/Economic Development Pam Akin City Attorney Scott Shuford Central Permitting Director Bill McCann Chair, Design Review Board Don McCarty Senior Planner, Central Permitting Karen Lyons Koch Court Reporter, Deborah Kurz and Associates John Connolly Citizen, Business Owner Fred Thomas Owner, Pinch A Penny, Inc. Harry Cline Attorney, MacFarlane Ferguson & McMullen Brenda Moses Board Reporter The meeting was called to order at 7:00 p.m. by Mayor Rita Garvey in Commission Chambers, 112 South Osceola Avenue, Clearwater. An appeal was filed by Mr. Fred Thomas of Pinch A Penny, Inc./Porpoise Pool & Patio, Inc./Clearwater Depot, Inc. in response to the City of Clearwater DRB’s (Design Review Board) decision regarding denial of a roll down grille and green coated chain link fencing at 651 Court Street, Clearwater. Mr. Harry Cline, Attorney for Mr. Thomas, noted Mr. Thomas has reconstructed an existing building to house a downtown Pinch A Penny Pool operation. It was the appellant’s position that the City’s Design Guidelines have been adequately followed and that all of the intended purposes of the DRB have been met, or exceeded. Mr. Cline stated that by the end of each DRB meeting, additional requests or modifications of Mr. Thomas’ prior requests were imposed on him and the architect. He felt that the DRB had lost their understanding and perspective of Design Guidelines and their purpose. Mr. Cline was of the opinion that had the present building been presented for approval before the DRB, it would have been approved. He asked the City Commission to view the present building under the ordinance and Design Guidelines, and approve the modifications as set forth before the DRB at their last meeting, and in Mr. Thomas’ appeal. Central Permitting Director, Scott Shuford submitted minutes from Design Review Board meetings from January 14, 1997, March 11, 1997, March 25, 1997, and April 8, 1997. The minutes of May 13, 1997 had already been submitted to the City Commission for review. Tapes of the minutes will also be submitted into the record. He explained that this appeal involves 2 design elements: 1) a vinyl covered chain link fence to be installed on the east wall of the building; and 2) permanent metal grillwork to be installed on the north and east sides of the building in previous window openings. The appellant had originally proposed the design elements as a means of introducing landscaping into the site and tying in the window pane treatment of the adjoining train station. The appellant had consistently proposed those elements at 2 or more of the DRB meetings. On May 13, 1997, the appellant proposed replacing the green vinyl covered chain link with galvanized chain link, and the metal grillwork with retractable roll down metal grating from above the windows. After thorough discussion, the DRB considered the changes and they were denied. The appellant’s problems are entirely self-created and stem from his inability to carry out any one of several plans which received approval by the DRB. The DRB has acted expeditiously in all its actions with due regard to the appellant’s need for timely review. Mr. Cline stated that the vertical vegetation and fence, and the wrought iron grillwork were not the genesis of Mr. Thomas, but rather from DRB members’ comments to his architect, ultimately agreed to by Mr. Thomas. He is now seeking modifications to those changes. While preparing to purchase the property, Mr. Thomas had a study done on the site. He found that the last modification was done in late 1960 when an additional 30 feet was added to the front, or north of the building, expanding it to the lot line. The study indicated many problems with the building due to poor or nonexistent maintenance and shoddy workmanship. The study indicated that the 30 feet that had been added to the building was unstable and would require removal. On that basis, Mr. Thomas undertook the first design of the property. His architects assumed that the front 30 feet of the building would have to be removed, and the first plan that was proposed to the DRB on January 14, 1997 reflected an absence of 30 feet. The plan allowed for more architectural ingenuity and was to emulate the train depot adjacent to the subject property. That project was very well received by the DRB. Upon approval for the building at the first DRB hearing, the DRB requested further information on other items. Mr. Thomas began obtaining permits for the work. During the initial construction process, Mr. Thomas found the first 30 feet was solid and could be used. He had his architects redesign the building to include the front 30 feet. The new design eliminated the columns and the hip roof. On March 11, 1997, when the architect presented the revised plans, the DRB did not like them. Significant discussion had ensued and various negative comments were made regarding those changes. Mr. Cline noted that there was no landscaping required for this site, however the DRB had requested landscaping proposals, a site plan addressing parking, and whether or not there would be a mural or vegetation on the east side of the building. At the third hearing, Mr. Thomas received conditional approval of the building plans which included a green fence and vegetation on the east side of the building, and wrought iron grillwork on the front of the building. At the April 8, 1997 DRB meeting, Mr. Thomas and his architect submitted further revisions to the roof as requested by the DRB, supplied paint and roof shingle samples, advised the DRB of where planters would be positioned, and agreed to place soft, decorative lighting on the east wall. The fence and wrought iron grillwork were part of the approved package. Mr. Thomas proceeded to obtain bids and was advised by his insurance company that the wrought iron grillwork was a liability issue. Mr. Cline stated that Mr. Thomas’ insurance agent indicated there was a problem and he could not commit to insuring the property, but would send the matter to the company. Mr. Thomas discovered that the insurance company would allow a mesh screen that rolls down after the store is closed as an acceptable form of security. The wrought iron grillwork would have cost one third the cost of the screen, and Mr. Thomas requested by letter that the DRB consider this modification. The second modification Mr. Thomas requested related to the green vinyl fencing with vines. Costs for the fence would have been twice that of normal chain link fencing. The minutes of May 13, 1997 reflect a negative reception from the DRB. The reasons for denial were: 1) removal of the grillwork destroyed integration of total design; 2) the roll down metal grilles would have a negative impact at night; and 3) the applicant had volunteered green vinyl, and cost has no bearing in the application. Mr. Cline stated that all efforts of the DRB were directed towards compatibility with the adjacent train depot. He submitted that the building in its present condition, without a chain link fence, and with a mesh screen, complies or exceeds all of the applicable purposes in the Design Guidelines. He proceeded to read the 5 purposes listed in the Design Guidelines: 1) to ensure an orderly, high quality redevelopment process; 2) to protect and enhance major public investments in the area; 3) to encourage both small and large scale public and private investment; 4) a major purpose of these guidelines is to minimize renovation costs and maximize new development potential by eliminating guesswork and reducing potential development problems; and 5) to protect and maintain historic features. Mr. Cline noted the fifth guideline does not apply to this property since the development is not antagonistic to the only historical property in the area, which is the train depot. Mr. Cline felt that the DRB has exceeded its authority in its review and denial under the City Code and the Design Guidelines. The Enabling Ordinance states that the DRB has a scope of review which is limited to exterior building plans for new buildings, building additions and facade alterations. Subparagraph 10 states that design guidelines shall be established which shall specify the specific categories of architectural features subject to review. Mr. Cline stated that regulation of aesthetics must be done objectively. Key terms must be defined with clarity. He noted that the building structure has been approved by this board, and it does not include landscaping, parking issues or other issues. Mr. Cline felt that the Design Guidelines were not clear and objective as they relate to building plans involving architectural features or building planning. He was of the opinion that the DRB was dealing more with aesthetics than design. He emphasized that where restrictions are unclear, they should not be enforced. He stated that the absence of an ivy-covered fence or the use of a metal security screen does not violate any ordinance. He indicated that Mr. Thomas’ modifications were reasonable, and if the purposes were met, the system has been served. Mr. Fred Thomas, owner of Pinch A Penny, Inc. explained he had attempted to promote business development in downtown Clearwater, and comply with the City’s requests. He felt the DRB desired the train station features in his building. He noted the insurance problem with regard to the wrought iron and indicated he had spent a considerable amount of money on the property. Mr. John Connolly, a business owner at 1630 Chestnut Street, noted he has 4 pieces of property which adjoin Mr. Thomas’ property. He expressed his dismay at locating his business in downtown Clearwater due to the many restrictions. He felt Mr. Thomas’ business would positively impact downtown development. He noted his business has the same rolldown type of grate for security purposes at his property, as the one Mr. Thomas has installed. Questions were asked of Mr. Thomas regarding his architectural background, and his knowledge of the City’s design review process prior to redevelopment of this property. Mr. Thomas stated he was not a licensed architect, but that an architect had worked with him throughout the redevelopment process. He had not discussed the security gate or the wall landscaping with the architect prior to redevelopment, since he felt they were agricultural, landscaping, and insurance issues. In response to a question, he stated that the insurance agent had not reviewed the project in the early stages. Mr. Shuford noted that Mr. Thomas had received approval for his designs at 3 of the 5 DRB meetings. The east wall fence and landscaping was presented to and approved by the DRB on 2 occasions prior to the denial. The permanent grillwork was part of the design concept at 3 of the DRB meetings. Mr. Thomas had not provided any documentation from the insurance company to the DRB. In response to a question, Mr. Thomas stated he had objected to the DRB’s suggestion that the overhead grating be installed inside the metal grillwork at the May 13, 1997 meeting, because of the insurance liability issue. It was remarked that Mr. Thomas’ objection at that time was more of an expense issue, and had Mr. Thomas followed through with the plans that had been presented and approved by the DRB, his business would now be operational. It was noted that Mr. Thomas has already installed the overhead rolldown grate without a permit. William McCann, the DRB’s chairman, stated he is a licensed civil engineer in Florida, New Jersey, Pennsylvania and New York, and a licensed city planner. He is currently an independent contractor performing code reviews around the country. He summarized the DRB’s purpose to include review of new construction, and renovations in the downtown area in order to aesthetically improve its appearance. When the DRB hears cases, it uses the Design Guidelines as prepared and approved by the City Commission. He explained that the DRB reviews the building and how it relates to other structures in the surrounding area, considers historic features, window treatments, accessibility of the site, landscaping, and the overall aesthetics of the project. Mr. McCann stated he felt Mr. Thomas’ building blends with other features of the community in some regards, and not in others. Mr. Thomas’ proposed building complies with the Design Guidelines in general, but specifically there are a few elements where they do not, such as the rolldown grate and the proposed landscaping changes. He referred to the Design Guidelines, emphasizing the transparency of buildings and their facade. He noted that the DRB does not want to legislate aesthetics, rather help the applicant with their design, relative to the Design Guidelines. The chain link fence alone would not have been approved without landscaping. In response to questions, Mr. McCann explained that a mural on the exterior of a building is considered a facade alteration. Landscaping attached to the outside of a building in place of a mural is also a facade alteration. He explained that the DRB looks at the totality of an application and weighs each element before making a decision. Mr. McCann stated he was not aware of any other applicant who had received final approval of their project by the DRB, then readdressed the Board with changes. Don McCarty, Senior Design Planner for the City, and Staff Liaison for the DRB and the City Commission, presented information and answered questions. He is a licensed architect, registered in Indiana, and has had considerable municipal experience with various City Boards, capital projects and administration. He noted that on 3 of 5 occasions preceding this appeal, the DRB had given approval to the designs brought forward by Mr. Thomas. Mr. McCarty presented a chronology of events relating to Mr. Thomas’ project proposals, and submitted them as City Exhibits. Exhibit B1 was the elevation of the original design that was submitted to the DRB on January 7, 1997 and reviewed at the January 14, 1997 Board meeting. The DRB was very enthusiastic about the design, pleased about the business coming into the downtown area, and pleased about the many elements incorporated from the adjoining train station. Mr. Thomas’ architect had indicated he wanted to tie the overall project site together by utilizing hip roof, exposed columns, an outdoor display area, shutters and other features that would pick up the detailing of the train station. The plan was endorsed unanimously and enthusiastically by the DRB. Also submitted at the January 14, 1997 hearing for DRB consideration was a site plan. The DRB’s concerns were that the plans did not incorporate any landscaping, offered parking in the front yard, and did not show some elements traditionally shown on a site plan (City’s Exhibit B2). When the architect indicated he had not discussed those items with the owner, the DRB asked that he come back with additional materials. The next plan was submitted to City staff, not DRB members, on January 17, 1997. On February 5, 1997, based on plans submitted and the DRB’s approval (Exhibit B1), a building construction permit was issued for construction of the building. On a field observation on February 19, 1997, Mr. McCarty called Mr. Thomas’ architect and asked him if he was misinterpreting what was being built. The architect stated the plans were being redone and would be resubmitted. He also indicated Mr. Thomas wanted to salvage the front of the building opposed to tearing it down, and requested to come back before the DRB. On March 4, 1997, a revised building plan (City’s Exhibit B3), was submitted to the DRB, and the request was heard 7 days later at their regularly scheduled meeting on March 11, 1997. The revised design no longer had any of the applications or features of the previous design. The building was much taller, extended to the property line, had a straight gable roof, had bubble grillwork shown in the original window openings, and had a sign high in the gable area on the east end of the building. Mr. McCarty had discussed the Board’s concerns relating to a long wall that was very prominent on the site. As an entrance to the downtown area, the wall was a concern to the DRB. The architect indicated the owner was willing to paint a mural on the wall and it would be discussed at the meeting. The DRB was very concerned about the lack of continuity, the total change of design, the inconsistencies to the previous design, and any relationship to the train station. Since the appellant had the gable roof trusses at the site and had already begun work, the DRB had expressed concern about the appellant’s willingness to follow through with approved plans. Several suggestions were made by both the architect and the DRB, in an attempt to incorporate items that might be considered as unifying elements. The architect asked the DRB to continue the matter until he could discuss those elements with his client. It was noted that the DRB did not initiate the action. At the March 25, 1997 DRB meeting, the minutes indicated there was incomplete information about the appellant’s building and site, and considerable discussion regarding costs had ensued (City’s Exhibit B-4). Both Mr. Thomas and the architect attended the March 25, 1997 DRB meeting. A great deal of discussion ensued, and sketches were submitted. The DRB approved the design again, with the suggestion and promise by the applicant to maintain the gable roof, insert a roof element over the north entryway of the project, and substitute chain link fencing and ivy for the mural. It was noted that the architect’s plans showed the chain link fencing with ivy. The DRB approved the combination of all designs, asking the applicant to return to the April 8, 1997 meeting so that all combined elements could be viewed simultaneously (City’s Exhibit B-5). The final plan that was submitted at the April 8, 1997 meeting (City’s Exhibit B-6), incorporated the gable roof and the grillwork in window openings suggested by the architect as a way of incorporating features of the train station into the design. The plans also showed the large sections of vinyl covered chain link fencing with ivy placed at its base, and permanent decorative metal grillwork. This plan, along with the signage for the building was approved at the April 8, 1997 meeting. This was the third approval by the DRB. Compliments were extended to the architect and Mr. Thomas for that design. On April 28, 1997, Mr. Thomas sent a letter to the DRB indicating he wanted to deviate from the 2 items that are the subject of this appeal. On May 13, 1997, the DRB reviewed Mr. Thomas’ request for galvanized chain link in place of the vinyl chain link on the east wall, and installation of retractable roll down grating in place of the decorative grillwork, among other design issues. The Board denied the request because: 1) by taking out the grillwork the total integration of the design was destroyed; 2) putting in a rolldown screen gives a negative appearance to the City at night; 3) the applicant volunteered to put up the green vinyl fencing which meets the Design Guidelines as a condition of previous approval; and 4) the regulations followed by the DRB are not determined by a dollar amount. A number of times the DRB had discussed the desire to see some landscaping on the site, but it was not the Board’s suggestion to put the ivy on the wall. The DRB had made every effort to review Mr. Thomas’ plans expeditiously. Mr. McCarty noted that in the 13 months that the DRB has been hearing cases, there have been 36 applications presented to the Board (City’s Exhibit C). Thirty-four requests were approved and 2 were denied, one of which was Mr. Thomas’. Mr. Cline disputed the fact that the suggestions for the vegetation fence and the mural came from the applicant. He referred to the minutes of March 11, 1997, and read excerpts which he interpreted as meaning that a 3-dimensional building treatment along the east wall would be sufficient as opposed to a mural. He stated that the DRB gave conditional approval to Mr. Thomas’ designs at every meeting, until final approval on April 8, 1997. Mr. Cline submitted Exhibit D which was a letter from the insurance company, and composite Exhibit E, photographs from a mechanical survey. In response, Mr. McCarty stated the DRB had not suggested a mural. In meeting with Mr. Thomas’ architect, Mr. McCarty had expressed his concern about the east wall being large and bare and architecturally uninteresting, and had asked if Mr. Thomas had any plans for the wall. The architect had indicated to Mr. McCarty that Mr. Thomas was considering placing a mural on the wall. Mr. McCarty had discussed some type of architectural treatment or 3-dimensional stucco work. He explained that the pilasters being used as support structures could not be considered a 3-dimensional treatment for architectural elements. Discussion ensued regarding how Mr. Thomas’ designs did or did not meet the Design Guidelines. Mr. McCarty noted that the building had been approved on January 14, 1997. The site and landscaping designs were asked to be brought back to the DRB for review. At the March 25, 1997 meeting, the designs were approved with several conditions. Mr. Shuford summarized the case and referred to City’s Exhibit B5. Because so many different sketches and items had been presented to the Board, the DRB had asked for all the elements together on one sketch. The minutes clearly reflected both DRB enthusiasm for the project, and support of the appellant’s need for an expedited review of the designs. After several approvals had been given to Mr. Thomas, the DRB was less enthusiastic and concern was expressed about the appellant’s inability to follow through with plans already approved. The Board denied Mr. Thomas’ request heard at the May 13, 1997 hearing because proposed changes bore little resemblance to the charm of the original. It was noted that Mr. Thomas has since installed the retractable grating prior to this meeting and without a permit. The meeting recessed at 8:55 p.m. and reconvened at 9:05 p.m. Mr. Thomas stated it was the DRB that had requested of his architect that the mural be painted on the wall. Mr. Thomas stated he gave tentative approval to the mural. He indicated he installed the security grating because it is on the inside of the store and he felt a building permit was not necessary. He also noted if a permit is required, he will obtain one. He stated the minutes have rebutted the chain link fence and the vegetation issues. The public hearing was closed and City Commission discussion ensued. It was remarked that the letter submitted by Mr. Thomas from his insurance company merely stated that there was a possibility of a surcharge for the grillwork, not that the risk would not be insured. It was noted that the building will be a great addition to the area, but certain rules and regulations must be followed. The question was how to address the fact that there were changes made after approval had already been given. The pros and cons of the chain link fence and the retractable grating were discussed. It was remarked that the City has made tremendous efforts to remove barriers and encourage business development. It was remarked that a competent architect would have known about the building codes, liability issues, and other issues before suggesting a design plan. Mr. Thomas’ building faces a heavily traveled street, and due to its prominence entering the downtown area, that factor must be taken into consideration. It was noted that the process by the DRB was timely and through most of the process, the different design elements were initiated by the architect, who represented the owner. Commissioner Clark moved to rule in favor of the appellant, and reverse the DRB’s decision, with the condition that the chain link fence be eliminated, and a permit be obtained, if required, for the retractable grating. Mayor Garvey disagreed with the motion. Commissioner Hooper seconded the motion for discussion. In response to questions, Mr. Thomas explained what his plans were for the patio area of the site. Mr. Shuford acknowledged that Mr. Thomas has spent a considerable amount of time on this project. He noted that the building is pretty, but would not be as pretty had it not been for the design review process. Upon the vote being taken, the motion failed 3 to 2. Commissioners Seel and Johnson and Mayor Garvey voted “nay”. Commissioner Seel moved to reverse in part that the condition of the chain link fence and ivy be eliminated completely. The motion was duly seconded and carried unanimously. It was noted that the Commission can request findings of fact and recommended orders from the parties, and after close of the hearing can issue an opinion within 45 days. Commissioner Seel moved to continue deliberations regarding the retractable grating to the June 19, 1997 City Commission meeting. It was further agreed that Mr. Thomas would meet with City Staff prior to the June 19, 1997 Commission meeting in an effort to resolve the grills/grating issues. The motion was duly seconded and carried unanimously. The meeting adjourned at 9:59 p.m.