05/10/1988 PUBLIC HEARING
May 10, 1988
12:00 p.m.
*Present:*
Diane Tremor, Hearing Officer
*Also present:*
John Richter, Planning Official
Susan Stephenson, Deputy City Clerk
*Issue:* Lawrence H. Dimmitt III for a variance of 21 flags to allow a
maximum, of 23 flags, at 2285 U.S. 19 N, Sec 32 28 16, M&B 32.02, zoned CH (highway commercial).
*Case No. 88 1320*
*Appearances:*
Joshua Madgidson, attorney representing the appellant Daniel Myers, attorney representing the appellant
Miles Lance, Assistant City Attorney, representing the City of
Clearwater
*Exhibits submitted by City:*
Composite
Exhibit #1 Various ordinances and federal statutes regarding flags Composite
Exhibit #2 Material submitted with City's letter to the Division of
Administrative Hearings dated 3/16/88 and transcript by court reporter of hearing of 2/25/88
Exhibit #3 Two photographs of Dimmitt property
*Exhibits submitted by appellant:*
Composite Exhibit #1 Excerpts from Land Development Code Exhibit #2 Letter from Mr. Kearney of Dimmitt to City requesting permit application
Exhibit #3 Notice of violation to Dimmitt regarding the flags
*Exhibits submitted by the public:*
Exhibit #1 Letter of no objection from Marge Quisenberry Exhibit #2 Letter of no objection from Mike Anderson
Exhibit #3 Federal statute #174 regarding how flags may be
displayed
In his opening statement, Mr. Magidson questioned whether there was any basis for not allowing Dimmitt to fly more than two flags. A section in the Code lists 18 items which may be
put up without a permit and flags are included. The flags were put up without a permit and Dimmitt was cited for flying more than two flags. Dimmitt submitted a letter requesting a permit
to fly additional flags but was told that no more than two flags could be flown with or without a permit. There is no provision in the Code for submitting an application to fly more
than the two flags. He feels the Development Code Adjustment Board denied the variance because they felt it was a business venture and the additional flags were put up for commercial
purposes and not for patriotic purposes.
In his opening statement, Mr. Lance stated a legislative determination was made by the Commision that in commercially zoned areas, no more than two government flags are permitted. There
was substantial evidence before the Board to uphold their denial of the request. The Development Code Adjustment Board is guided by eight standards for granting variances and the appellant
showed no hardship or unique topographical conditions, and it was felt the request was in violation of the general spirit and intent of the Code. Visual clutter is another important
consideration and the decision of the Board should be upheld.
Raymond Kearney, Jr., general manager for Dimmitt, stated the flags have been up since December 8th. The company that put up the flags told them a permit would be needed for more
than two flags. When they contacted the City, they were told there was no way they could obtain permission to fly more than two flags. They have not received any complaints about the
flags.
Mr. Magidson called John Richter, Planning Official, as an adverse witness. Mr. Richter stated Dimmitt never filed for a formal sign permit for the flags. The City issues permits for
business identification and property identification signage and Dimmitt could have substitued one of these signs for the flags since the City does not regulate the message on a sign.
The Development Code Administrator is given the authority to interpret any questions regarding the Code and if he is unsure, the procedure is to check with the City Attorney. In response
to a question, he stated he did not consult the City Attorney about the number of flags on the property. The Code was the subject of several public hearings and was adopted by the City
Commission with a limit of two flags. The rationale for limiting the number of flags was prevent the
commercialization of the American flag. There are three flags in front of City Hall and, in response to a question, he said they have not been cited. These flags were placed prior to
the adoption of the Code and are therefore a lawful nonconforming use. There is no regulation regarding how a flag should be flown in the Code. The Board did not feel the appellant met
the criteria for granting a variance. In response to a question, he stated there is no limit to the number of government or official signs and no permits are required. In addition, no
permits are required for political signs but they are limited. In his opinion, 23 flags is not minimal or reasonable and he feels it is self evident that they are for sales purposes.
The Code requires that signs be maintained in a safe and satisfactory manner and while he feels the flags have been installed in a safe manner, he does not feel they have been installed
in a satisfactory manner. Flags should be on regular flag poles, taken in during inclement weather, and lighted at night.
There was a brief recess from 1:48 p.m. to 1:55 p.m.
Discussion ensued as to whether public comment is permitted and the hearing officer stated she would allow comments from the public.
Three citizens spoke in opposition stating they felt the flags had become an emotional issue. The manner in which they are displayed is more for commercial reasons than for patriotic.
One citizen noted several of the flags have become torn and they all expressed concern for the manner in which the flags are erected. One citizen indicated that if the flags are placed
on flag poles which are properly lighted and if the flags are raised and lowered, he would have no objection to the display.
The hearing officer advised that any proposed findings of fact, conclusions of law, and orders should be submitted within twenty days of the receipt of the transcript from the court
reporter.
The meeting adjourned at 2:17 p.m.