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12/18/2007 COMMUNITY DEVELOPMENT BOARD MEETING MINUTES CITY OF CLEARWATER December 18, 2007 Present: Nicholas C. Fritsch Chair Kathy Milam Vice-Chair Thomas Coates Board Member – departed 6:06 p.m. Dana K. Tallman Board Member Jordan Behar Board Member Frank L. Dame Board Member – departed 6:35 p.m. Doreen DiPolito Board Member Norma R. Carlough Alternate Board Member Also Present: Gina Grimes Attorney for the Board Leslie Dougall-Sides Assistant City Attorney Michael L. Delk Planning Director Neil Thompson Planning Manager Brenda Moses Board Reporter The Chair called the meeting to order at 2:00 p.m. at City Hall, followed by the Invocation and Pledge of Allegiance. To provide continuity for research, items are in agenda order although not necessarily discussed in that order . C. APPROVAL OF MINUTES OF PREVIOUS MEETING: November 20, 2007 Member Dame moved to approve the minutes of the regular Community Development Board meeting of November 20, 2007, as recorded and submitted in written summation to each board member. The motion was duly seconded and carried unanimously. D. REQUEST FOR CONTINUANCE (Item 1): 1. Level Three Application (Deferred for Renotice to January 15, 2008) Case: REZ2007-10001 - 1201, 1241, and 1261 Gulf Boulevard Owner/Applicant: Andrew R. Duff TRE Trust 2020229 and D. A. Bennett Company Representative: E. D. Armstrong, III, Johnson, Pope, Bokor, Ruppel & Burns, LLP (P.O. Box 1368, Clearwater, FL 33757; telephone: 727-461-1818). Location: 7.73 acres located on the southeast side of Gulf Boulevard approximately 1,800 feet south of Clearwater Pass Bridge Atlas Page: 294A and 303B Request : Application for a Zoning Atlas amendment from the Business District (B) to the Tourist (T) District. Existing Uses: Overnight Accommodations, Retail Sales and Services, Restaurant and Office. Neighborhood Association(s): Clearwater Neighborhoods Coalition (Joe Evich, President, P.O. Box 8204, Clearwater, FL 33758) and Sand Key Civic Association (Mike Dooley, President, P.O. Box 3014, Clearwater, FL 34630) Presenter: Steven Everitt, Planner II Community Development 2007-12-18 1 Member Behar moved to continue Case REZ2007-10001 to January 15, 2008. The motioncarried was duly seconded and unanimously. E. CONTINUED ITEM (Item 1): 1. Case: FLD2007-03007 – 685, 689, 693 and 699 Bay Esplanade Level Two Application Owner/Applicant: Peter Pan Developments, LLC, Petrit Meroli, Panayiotis Vasiloudes, Epic Holdings South, LLC, and Somerset Place, Inc. Representative: Sherry Bagley and/or Bill Woods, Woods Consulting (1714 County Road 1, Suite 22, Dunedin, FL 34698; phone: 727-786-5747; fax 727-786-7479; e-mail: sbagley@woodsconsulting.org). Location: 0.618 acre located at the northeast and southeast corner of the intersection of Bay Esplanade and Somerset Street. Atlas Page: 258A. Zoning District: Tourist (T) District – Old Florida. Request: Flexible Development approval to construct a 3,182 square-foot multi-use dock facility to provide 14 slips as an amenity to a proposed 16-unit attached dwelling (two buildings with eight dwelling units in each) in the Tourist (T) District with an increase to the length of the southern dock from 75 percent of the lot width (93.75 feet) to 89 percent of the lot width (111 feet) under the provisions of Section 3-601.C.3. Proposed Use: Multi-use dock of 3,182 square-feet for 14 slips, in conjunction with a 16-unit attached dwelling (condominium). Neighborhood Association: Clearwater Beach Association (Jay Keyes, 100 Devon Drive, Clearwater, FL 33767; phone: 727-443-2168; email: papamurphy@aol.com); Clearwater Neighborhoods Coalition (Joe Evich, President, P.O. Box 8204, Clearwater, FL 33758). Presenter: A. Scott Kurleman, Planner II. The Chair reported the applicant requests 20 minutes for presentation of their application. Consensus was to grant the applicant 20 minutes for their presentation. Attorney for the Board Gina Grimes reported two individuals requesting party status and represented by Attorney Nathan Hightower also request the same amount of time given to the applicant to present their case. Consensus was to grant Mr. Hightower 20 minutes to represent his clients, Mr. and Mrs. Mark Smith. The board granted also granted staff additional time. The applicant’s counsel stated the applicant had no objection to the request for additional time. Member Behar moved to accept Scott Kurleman as an expert witness in the fields of zoning, site plan analysis, planning in general, landscape ordinance, tree ordinance, and Code enforcement. The motionwas duly seconded and carriedunanimously. Planner Scott Kurleman presented the request. He said there were several letters in opposition and support of this application. The four parcels comprise 0.618 acres located at the northeast and southeast corner of the intersection of Bay Esplanade and Somerset Street in the Old Florida District of Beach by Design. The site is separated by the Somerset Street right of way. There is a total of approximately 245 feet of waterfront frontage, with 120 feet for the northern dock and 125 feet for the southern dock (subject to unity of title). The Intercoastal Waterway exists to the east side of the parcels. The 685 – 689 Bay Esplanade (south of Community Development 2007-12-18 2 Somerset Street) site is currently developed with the two-story, 13-unit Water’s Edge apartments and a duplex. The 693 – 699 Bay Esplanade (north of Somerset Street) site is currently developed with a total of four apartments. The development proposal includes the removal of three existing docks and the construction of two docks totaling 3,182 square-feet. Fourteen wet slips are proposed for these multi-use docks as an amenity to an approved 16-unit condominium development on the upland portion of the subject properties. The docks are proposed to accommodate one boat 35 feet in length, six boats 40 feet in length, six boats 50 feet in length and one boat 56 feet in length. Cases FLD2005-08088 and FLD2005-08090 were approved for two condominium buildings for the upland development with each containing eight dwelling units. A time extension for the Development Order was granted on April 17, 2007 by the CDB (Community Development Board). The time extension requires that application for building permits are made by May 18, 2008. To date, no permits have been procured. Pursuant to Section 3-601.C.2 of the Community Development Code, a multi-use dock is defined as any dock owned in common or used by the residents of a multi-family development, condominium, cooperative apartment, mobile home park or attached zero lot line development. However, pursuant to Section 3.601.C.3 of the Community Development Code, any multi-use dock with a deck area exceeding 500 square-feet shall be treated as a commercial dock. As the proposed dock exceeds this threshold (3,182 square-feet), the dock is treated as commercial and is subject to the relevant review criteria. The dimensional standards criteria for setbacks set forth in Section 3-601.C.3.h of the Community Development Code state that docks shall be located no closer to any property line as extended into the water than the distance equivalent to ten percent of the width of the waterfront property line. Docks abutting adjacent waterfront single-family or two-family properties must be setback a minimum of one-third of the applicant’s waterfront property width from the adjacent waterfront single-family or two-family property. The width of the waterfront property line on the northern property, which is adjacent to single family waterfront property on the north side, is 120 feet (subject to unity of title); therefore the proposed dock must be set back from the north property line a minimum of 40 feet. As proposed, the dock will be set back from the north property line in excess of this requirement with a distance of 41 feet. The proposed dock on the northern property must be setback a minimum of 12 feet on the south property line. As proposed, the dock will be setback 12 feet from the southern property line. The width of the waterfront property on the southern property is 125 feet (subject to unity of title); therefore the proposed dock must be setback from the north and south property lines a minimum of 12.5 feet. As proposed, the dock on the southern property will be setback 12.5 feet on the north side and 19.5 feet on the south side. With regards to length, commercial docks shall not extend from the mean high water line or seawall of the subject property more than 75 percent of the width of the subject property as measured along the waterfront property line; thus the length of the dock on the northern property is limited to 90 feet. As proposed, the dock has a length of 89 feet. The length of the dock on the southern property is limited to 93.75 feet. As proposed, the dock has a length of 111 feet. The deviation request is to allow the proposed southern dock to be 17.25 feet longer than permitted by Code. Note that the property immediately to the south of the proposed southern dock could request a new dock length of 129.5 feet based on the shoreline width calculations. The same threshold that applies to length also applies to width; therefore the width of the proposed northern dock cannot exceed 90 feet. The northern dock has a proposed width Community Development 2007-12-18 3 of 62 feet. The width of the proposed southern dock cannot exceed 93.75. The southern dock has a proposed width of 85 feet; thus compliance with this standard is achieved. Both proposed docks will be subordinate to and contribute to the comfort and convenience of the users of the occupants of the proposed condominiums. Both the upland development and the dock proposal are subject to a Unity of Title. The docks will meet the setback requirements and in no way encroach into the waterway east of the Somerset right of way. The subject northern dock is located immediately adjacent to the Low Medium Density Residential (LMDR) District. Docks proposed to serve single family uses are permitted to have dock lengths of 25 percent of the width of the waterway or 50 percent of the width of the property line, whichever is less. The waterway width is over 750 feet in this area; therefore it would be 50 percent of the width of the property. The first seven single-family uses adjacent to the proposed docks have lot widths of 58 feet. This would allow any proposed docks to be 29 feet in length without deviations. Of the first seven, only two fall within the 29 feet length criteria (Exhibit B pg. 2 FLD App). The other five range in length from approximately 38 feet to 51 feet with an average of 45.8 feet. The average of 45.8 feet equates to 78.96 percent of the lot width where Code allows 50 percent (29 feet) with no deviations. The subject northern dock has a proposed length of 89 feet equating to 74.16 percent of the lot width where Code allows 75 percent (90 feet) with no deviations. Additionally, no tie poles are proposed to extend beyond the length of the dock. Section 3-601.3.h.ii. permits tie poles to extend beyond the dock provided such tie poles do not exceed 25 percent of the width of the waterway (187.5 feet) and do not constitute a navigational hazard. If this proposed northern dock did not exceed 500 square-feet it could be approved at Staff level as a minimum standard. Commercial docks are permitted to extend 75 percent of the width of the waterfront property line whereas single-family docks may only extend 50 percent of the width of the waterfront property line. With this in mind, multi-family docks when adjacent to single-family typically have a greater length and the Code recognizes this by requiring greater setbacks (40 feet) when adjacent to single-family. The dock criteria regarding dimensions are based on the use of the parcel not the zoning of a particular parcel. Even though the proposed northern dock is longer than the adjacent docks, it is consistent with the percentages regarding dock length and the waterfront property width; therefore, in harmony with the scale, bulk, coverage and character of the single-family use docks to the north and the general vicinity based on the criteria set forth in the Community Development Code. The subject southern dock is located immediately adjacent to multi-family uses. South of the proposed southern dock is the Tourist designation and parcels are developed with both commercial and multi-family uses. The multi-family dock immediately south of the subject southern dock is 90 feet long and accommodates 12 slips. Based on that property’s frontage however, a multi-family dock of 129.5 feet could be accommodated on the site. Additionally, there are seven other multi-family/commercial docks in the Mandalay Channel, in fact most if not all of the properties south of the subject property would be considered multi-use or commercial and are permitted to construct a dock the length of 75 percent of the property width. The multi-use dock at Belle Harbor extends 300 feet into the channel. The applicant’s request is to increase the length the length of the proposed southern dock from 93.75 feet to 111 feet, which is 17.25 feet greater than permitted. The applicant contemplated proposing a dock 93.75 feet long with tie poles, which are not calculated in the dimensional standards, extending out another 18 feet (total of 111.75 feet), but in the interest of safety the applicant will illuminate this dock and the northern dock with eight lighthouse style utility pedestals (downward directed light) and install six-inch wide reflective tape bands on all tie poles. As no tie poles are proposed Community Development 2007-12-18 4 beyond the length of dock, staff concludes this creates a safer boating and water recreational area and is consistent with other docks to the south. The Harbormaster states “it is a significant and reasonable compromise and overall better, safer solution than a 93-foot dock with tie poles extending an additional 18 feet or more, and this significantly reduces the impact on the recreational use of the waterway by motorized and non-motorized uses”. “The resulting docks will be illuminated and overall much safer”. The proposed docks do not adversely impact the waterways for recreation, navigation or other public uses. The proposed southern dock’s length and those that could be constructed to the south are in harmony with scale, bulk, coverage and character of the multi family/commercial use docks to the south and the general vicinity based on the criteria set forth in the Community Development Code. The applicant performed three surveys in 2005 to determine if sea grass was present. The surveys showed no signs of sea grass. Another survey was performed in August of 2007 and two sea grass beds were present. Environmental Scientists indicate sea grass sometimes appears in areas not observed in the past and likewise sometimes moves out of an area, as it is reliant on light, water clarity and pH. Since the August 2007 survey, the docks have been designed to avoid any injury to the marine grass. The depths of the water in the boat slips closest to the sea grass are three to seven feet at Mean Low Water (MLW) providing more than enough clearance to meet the one foot clearance required by 3-601.C.3. The entire seawall is proposed to be replaced and the dock will be constructed with materials and standards for environmental protection thereby not impacting any natural resources, wetlands, uplands or habitat communities. The development proposal has been found to be consistent with the criteria for commercial docks. Specific responses to each of these criteria have been provided by the applicant and are included with their application. The development of the land relating to scale, bulk, coverage, density and character with adjacent properties and the immediate vicinity has been found to be consistent based upon the discussion above. The adjacent property to the north is currently developed with a single-family home. The proposed development of the upland and docks should be a positive influence on this property. While the adjacent single-family home currently does not view a dock to the length of 89 feet, it is within Code limitations, requires no deviations and is set back 40 feet from this property. As discussed above the Code does allow multi-family docks a greater dimension in length and width. Currently the subject uplands are developed with a total of 17 apartments and a duplex with docks in poor condition. New upscale condominiums and docks will revitalize this area of Old Florida and have a positive influence on the adjacent property. Likewise the adjacent property to the south is developed with a multi-family use and will benefit positively from this proposal and may even stimulate revitalization on this parcel. The proposed docks will not affect the health or safety of persons working or residing in the neighborhood as they meet state and local guidelines by not extending past the 25 percent waterway width and will be illuminated well with no tie poles beyond the length of the dock. Additionally, the proposed docks are designed to minimize traffic congestion, as they will be used only by the users or the occupants of the proposed upland development. Community Development 2007-12-18 5 No fish cleaning stations, fueling facilities, sewage pump-out facilities or live aboard vessels are proposed thereby minimizing any adverse effects. There are no outstanding Code Enforcement issues associated with the subject property. The Development Review Committee (DRC) reviewed the application and supporting materials at its meeting of June 7, 2007, and deemed the development proposal to be sufficient to move forward to the July 2007 CDB meeting. The application was continued at the July CDB meeting and subsequent meetings thereafter. The continuances were requested to revise the application based on surrounding property owner’s concerns along with the discovery of sea grass in the immediate vicinity. The application is being heard at today’s CDB meeting based upon the following findings of fact and conclusions of law: Findings of Fact: 1) That the 0.618 acre is located at the northeast and southeast corner of the intersection of Bay Esplanade and Somerset Street; 2) That the property at 685 – 689 Bay Esplanade was approved on November 15, 2005, by the CDB for the development of the upland with eight attached dwellings (condominiums); 3) That the property at 693 – 699 Bay Esplanade was approved on January 17, 2006, by the CDB for the development of the upland with eight attached dwellings (condominiums); 4) That on April 17, 2007, the CDB approved a time extension for the Development Orders requiring an application for building permits be made by May 18, 2008 for the upland developments; 5) That the proposal consists of the construction of a 3,182 square-foot, 14 wet slip multi-use dock as an amenity for the 16-unit condominium development; 6) That the proposed docks comply with the setback and width standards of Section 3-601.C.3.h of the Community Development Code; 7) That the development proposal is compatible with dock and potential dock patterns of the surrounding area; and 8) That there are no outstanding Code Enforcement issues associated with the subject property. Conclusions of Law: 1) That the development proposal is consistent with the commercial dock review criteria as per Section 3-601.C.3 of the Community Development Code, and 2) That the development proposal is consistent with the General Applicability criteria as per Section 3-913.A of the Community Development Code. Based upon the above, the Planning Department recommends approval of the Flexible Development application to permit two multi-use docks for 14 slips totaling 3,182 square-feet, under the provisions of Section 3-601, with the following conditions: Conditions of Approval: 1) That a Unity of Title be recorded by the Pinellas County Clerk of Court for the four parcels and that the City of Clearwater be provided with a copy prior to approval of the dock permits; 2) That vertical building construction of the upland development (FLD2005-08088 and FLD2005-08090) commence prior to the issuance of dock permits; 3) That prior to building permits for the upland improvements, demonstrate on the plan how water is to be provided for the required fire protection system; 4) That covered boat lifts are prohibited; 5) That boats moored at the docks be for the exclusive use by the residents and/or guests of the condominiums and not be permitted to be sub-leased separately from the condominiums; 6) That signage be permanently installed on the docks or at the entrance to the docks containing wording warning boaters of the existence of protected sea grasses and manatees in the vicinity; and 7) That a copy of the SWFWMD and/or FDEP Permit and any other applicable environmental permits, Corps of Engineer's Permit and proof of permission to use State submerged land, if applicable, be submitted to the Planning Department prior to commencement of construction. Community Development 2007-12-18 6 Mr. Kurleman stated that the Code only protects views on upland development. No structure or landscaping may be installed within the site visibility triangle. Member Coates moved to accept Bill Morris as an expert witness in the fields of Marina operations, water recreation activities, and navigation. The motion was duly seconded and carried unanimously. Marine & Aviation Director Bill Morris said as a courtesy to the MAB (Marine Advisory Board), he brings commercial dock applications and residential dock applications for docks larger than 500 square-feet to the MAB for review. He stated he had concerns that the northern half of the proposed dock is in a water recreation area and the southern half is in a slow speed minimum wake zone. He reported that the MAB approved of the original version of the applicant’s proposal with some conditions. The applicant revised the project after discussions with property owners and MAB input. The applicant felt that a lighted catwalk out approximately 18 feet would be safer than three unlit tie poles. However, that revision required a variance. He said the MAB did not approve of that plan due to concerns regarding sea grass that had appeared in 2007 but that were not identified in the original survey, docks that would extend into the recreational area, and the request for a variance for the southern dock. The adjacent property owner and MAB member has expressed concern that the proposed docks were angled in a manner that would obstruct his view and would impact the economic value of his property. In response to a question, Mr. Morris said that at their December meeting, three MAB members voted in support of and three voted against the application, with one abstention. Ed Armstrong, representative, stated the applicant requests a minor deviation as to length only for one of two docks. Sherry Bagley, Woods Consulting, reviewed her background. Member Coates moved to accept Ms. Bagley as an expert witness in the fields indicated in her resume. The motion was duly seconded and carried unanimously. Ms. Bagley said as part of the dock application process for her clients, her firm determines property ownership, including bottomlands, and evaluates the subject area by performing various surveys for resources such as sea grass, oysters, algae, soft corals, etc. She said the process for this application began in 2005. She said the applicant owns the submerged lands for this project. When the area was checked again in 2007, a new survey found sea grass in the area. To avoid impacting the sea grass, the applicant revised the original proposal to reflect the removal of two boat slips closest to the seawall and sea grass. She said there is adequate depth at MLW to maneuver boats into the slips near the seawall. She said the pilings will be vinyl wrapped. She said the project allows for sufficient space in the water- skiing area for navigation of the channel. Ms. Bagley reviewed the criteria in the Code and stated the applicant meets that criteria. There will be signage regarding manatees in the area. She said the inclusion of a boat slip to a condominium unit increases its value and makes adjacent upland property more valuable. This project is in a transitional area. The southern dock is longer than the northern dock which creates even more of a transition. Member Coates moved to accept William Craig Ward as an expert witness in the fields indicated in his resume. The motion was duly seconded and carried unanimously. William Craig Ward, Gulfcoast Survey Associates, said he performed the most recent survey and the original survey done in 2005. He stated the survey was based on NGBD Community Development 2007-12-18 7 reference data from 1929, and his firm performed over 350 individual measurements to develop the elevation map. He reviewed the map and stated that elevations are relative to sea level. In response to a question, Ms. Bagley said water depths at MLW range from 4.4 to 7.4 feet at the northern dock and slip #1, and from 4.4 to 8.4 feet at the southern dock. Mark Smith requested party status. Member Dame moved to grant Mark Smith party status. The motion was duly seconded and carried unanimously. William Lock requested party status. Member Dame moved to grant William Lock party status. The motion was duly seconded and carried unanimously. Charlene Smith requested party status. Member Dame moved to grant Charlene Smith party status. The motion was duly seconded and carried unanimously. Westin Smith requested party status. Ms. Grimes reported that Westin Smith’s parents are property owners, but he is not. Nathan Hightower, representative for party status holders Mark and Charlene Smith, stated his clients live immediately adjacent to this project and object to the approval of the application. He stated the MAB voted against this application, citing concerns regarding water depths and impacts on navigation. Mr. Hightower stated advisory boards take their roles seriously. He said the MAB members are knowledgeable about marine navigation and their recommendations should be given great weight. He referred to photographs of his client, Mark Smith, standing the water near the seawall of this proposed project. He said boaters will not be able to see manatees that feed on sea grasses in this area. Boat engines will generate turbulence and will destroy the sea grasses. He said no mention has been made by the applicant about specific water depths needed to accommodate boat lifts in this area and the impact those boat lifts will have on residents’ view corridors. He said Somerset Drive serves as a dividing point between the applicant’s properties and is used by the public. He stated that the applicant has compared this project to the Belle Harbor docks, which are not in this channel. He said this dock proposal is twice as long as surrounding docks. He said the docks are incompatible with neighboring properties in the Old Florida District and are inconsistent with Beach by Design. He said the public has the right to views and to submerged lands, which includes recreational and navigational uses. He said these private docks will prohibit fishing in the area. He said the applicant’s diagram of the water-skiing area incorrectly assumes boats will traverse the center of the channel. Boats moored off the docks will decrease the width of the channel and will also impact water-skiing in this channel. He said the applicant referred to docks within one-half mile of this property that are 90 feet long. However, the average length of most of the docks in this area range from 50 to 60 feet. He said sand build up in some areas requires longer docks in order to get into the channel. In response to a question, Mr. Hightower said he could not define riparian rights with respect to views in the timeframe he has been given. He said there is a Supreme Court ruling that has gone into great length regarding the public’s rights to use submerged lands. He said a property owner’s view extends from either side of the property line out into the water. Community Development 2007-12-18 8 Party status holder Mark Smith stated that party status holder William Lock has given his time to him. Ms. Gina Grimes said the Rules of Procedure provide that additional time may be granted to a person representing a group. She said Mr. Smith would be governed by the rules related to party status. However, his time was used by his attorney, Nathan Hightower. She said that it would not be prudent for Mr. Smith to speak for another party who was given party status. In response to a question, Mr. Smith said he is representing Mr. Lock. Consensus was to allow Mr. Smith to speak on Mr. Lock’s behalf. Party status holder Mark Smith stated he has been a member of the MAB for two years. He said the MAB voted against this application and he abstained from the vote. He stated he discovered the sea grass in the area. He referred to drawings of Mandalay Channel and areas with the deepest waters. He said the 25% rule does not work for the entire channel. He said the channel is barely deep and wide enough to sail through. He said many people kayak along the basin and he sails off his dock and has only gotten into the gulf twice. He said the public has a right to navigation and the proposed docks will prohibit navigation. He stated the applicant would like everyone to think the request for the extended dock is required to get past the sea grasses. He said the applicant’s original design extended into the waterway over 180 feet and was revised. He referred to photographs taken of himself on November 28, 2007 standing in the channel 24 feet from the seawall with a ruler depicting the height of the water at 19 inches. He stated he was walking in the water, not standing on anything. He said his cradle lift requires a minimum of an additional two feet of water, and large vessels would only be able to use the proposed boat slips 10% of the time. He felt boats would destroy sea grass, that the proposal is a bad design and not in conformity with docks northbound on the beach, or on Island Estates, and the proposal does not provide an adequate transition to the residential area as required by Beach by Design. He said when the land in the area was sold by the State and dredged, it was to be protected for navigation, swimming, and like uses. In response to a question, Mr. Smith said he did not print out adjustments to MLW tides on November 28, 2007, when he checked the water depths in the area. He said he has other photographs depicting the shallowness of the water. He said originally, the engineer’s sealed plans indicated there were no sea grasses. He said there is dry ground along the seawall at MLW. He stated he has lived at his current address for 22 years. He said the entire waterway in this area is considered Mandalay channel. He said the first four slips in the original design are unusable due to water depths. In response to a question regarding why the MAB had changed their opinion of this application between the time the original application was proposed and the revised proposal, Mr. Smith said MAB members have concerns regarding shallow drafts. He stated that he had abstained from voting on this application at MAB meetings. He stated that had two MAB members abstained from voting at MAB meetings, the outcome regarding this application might have been different. He said information provided by this applicant has not been verified. In response to questions, Mr. Smith stated all the comments he just made were in the capacity of his views on the project, which he and Mr. Lock discussed. He stated he thought each party status holder received 10 minutes to speak anyway. Ms. Grimes stated that the Smith’s attorney, Nathan Hightower, was granted 20 minutes to speak on their behalf. Assistant Community Development 2007-12-18 9 City Attorney Leslie Dougall-Sides stated that when Mr. Smith spoke using Mr. Lock’s time, he said he was speaking on behalf of Mr. Lock. Mr. Smith stated he was speaking as if it had been his time. He said he was representing Mr. Lock’s comments. He confirmed Mr. Lock’s home is five houses from the subject parcel on Acacia Street and is not on the water. In response to questions, Mr. Kurleman said the MAB could be considered gratuitous in this circumstance. Nothing in the Community Development Code references the MAB. He said the MAB is not a predicate to an application being heard by the CDB, or an application being found complete or sufficient. He said if the applicant used tie poles at the end of the dock instead of asking for a deviation for length for the southern dock, the maximum length could be 93.75 feet and the applicant could extend the tie poles up to 25% of the width of the waterway. Mr. Kurleman said staff feels that a 111-foot dock with reflective tape on tie poles is safer than a 93.75-foot dock that extends into the waterway with no reflective tape or tie poles. In response to questions, Mr. Morris said the MAB has no official role in this process as it pertains to a Level Two approval for a dock application. He said as a courtesy, he brings some dock applications to the MAB for their input. The MAB also makes recommendations to City Council. He said the 25% rule applies to all bodies of water in Pinellas County. This body of water is known as Mandalay Channel. However, there is a marked channel on the east side of this channel that is to be used for navigation for vessels that require deeper water. In response to questions, Mr. Smith said he has no credentials as a land use planner or surveyor. He stated he participated in discussion at MAB meetings regarding this application. In response to questions, Mr. Morris said although he presents dock applications to the MAB as a courtesy, their recommendations are taken seriously. He said some of the applicant’s revisions of the project were a result of input from the MAB. He stated he has no interest in the applicant. He said the 25% rule mentioned today is a guideline that is fairly standard throughout the County. In response to questions, Ms. Bagley said she is not an engineer. She said she is familiar with riparian rights and dock permitting. Ms. Dougall-Sides and Mr. Armstrong objected to Mr. Hightower’s request for Ms. Bagley to give a legal opinion regarding whether or not common law as established in the State of Florida provides the general public with certain rights to navigable waters, as she is not an attorney. Mr. Hightower stated Ms. Bagley is an expert witness and should be able to give her opinion. Ms. Grimes stated the CDB must decide if they agree with the objections or will allow the question. Consensus by the CDB was that Mr. Hightower’s question calls for a legal conclusion. Mr. Hightower withdrew the question. In response to questions, Ms. Bagley said property owners will select lifts appropriate for their docks. She said lifts require additional water depth. The permitting process will be pursued with various agencies if the project is approved. She said FDEP might require mitigation regarding the dock proposal, sea grass, etc. She said the County also reviews sea grass issues. Five people spoke in support and three spoke in opposition to the application. The meeting recessed from 3:49 to 3:56 p.m. Community Development 2007-12-18 10 Mr. Hightower urged the CDB to consider the MAB’s recommendation to deny the application. He said the project is not permitted under Code. He said there will be substantial impacts to this area due to water depths, sea grasses, and boat drafts. He said this project is incompatible to the residential area and does not provide the required transition according to Beach by Design. He said the applicant chose to ignore his client’s proposal to reduce the number of boat slips and design the docks to accommodate smaller boats. He said the size and scope of this development is too far to the north and the improvements cited as being compatible are more to the south than indicated. He said this application adversely affects the community. Mr. Armstrong stated that the plans indicate that the docks closest to the seawall are to be a maximum of 50 feet and will probably be closer to 35 feet. Mr. Smith’s proposal would require six deviations from Code and would interfere with the public right-of-way. He said no one was suggesting the MAB should be disrespected. He said as it pertains to this specific application, the MAB has no jurisdiction and their opinion does not weigh into this process under the Community Development Code. He said the applicant submitted a sealed survey, which speaks to the water depth issue. Therefore, the applicant did not use the limited time allotted to review those depths. He said the riparian rights are far narrower in scope than suggested by Mr. Hightower. Mr. Armstrong stated it was inappropriate for MAB member Mark Smith, to have participated in MAB discussions. He said Mr. Smith has no credentials as a surveyor or planner and his advocacy does not outweigh the four expert witnesses presented by the applicant. He said the applicants indicated they are willing to agree to an added condition that no tie poles be allowed at the end of the southern dock. Ms. Grimes reviewed the CDB rules and requested board members disclose any site visitations, etc. Member Dame stated he visited the site three times. At the December 2007 MAB meeting, he stated he was in attendance for informational purposes only. He stated he and made no comments regarding the application. Members Behar, Coates, Milam, Tallman, and Chair Fritsch stated they conducted site visitations. Discussion ensued with comments that the proposal for lighted tie poles is safer than extending unlighted docks into the waterway, and this transition is permitted by Beach by Design. It was suggested that a condition be added that no tie poles be allowed on the southern dock. The deviations in the size of docks in the residential area average 34.5%. The applicant is requesting a variance of 18.4% for the southern dock. It was remarked that the adjacent property owner was aware when he purchased his home he was next to a commercially zoned area. View corridors pertain to upland properties. Riparian views extend from the edge of the property line straight out into the waterway. Therefore the adjacent property owner’s view to the north is not obstructed and his riparian rights are not compromised. Concern was expressed regarding additional water depth required for boatlifts for slip #1 on the north and south docks. It was suggested that the following conditions be added: 1) Eliminate boat lifts on slips marked #1 on both north and south docks; 2) That the maximum size boat permitted in slips marked #1 on both the north and south docks be 25 feet; 3) That no tie poles be placed eastward of the southern dock; 4) That the eastern end of the southern dock be lit at night as a caution for navigation purposes; and 5) That the remaining docks are installed with low profile lifts only. Community Development 2007-12-18 11 Member Dame moved to approve Case FLD2007-03007 based on the evidence and testimony presented in application, the Staff Report, and at today’s hearing, and hereby adopt the Findings of Fact and Conclusions of law stated in the Staff Report with conditions of approval as listed. In response to a question, Mr. Armstrong stated the additional conditions as stated are acceptable. motion The was duly seconded. Concern was expressed that it would be nearly impossible to navigate the slips marked #1 on both docks, and that larger boats would not use those slips. carried Upon the vote being taken, the motion unanimously. F. LEVEL TWO APPLICATION (Item 1): 1. Case: FLD2007-11037 – 161 Brightwater Drive Level Two Application Owners: Clearwater Townhomes, Inc., William and Sharon Templeman, Jr. and Kathleen Hernandez (owners of Units 1, 2, 3, 6, 7, 8, 9 and 10). Applicant: Clearwater Townhomes, Inc. Representative: Ron Augustine and Ed Smeltz (161 Brightwater Drive #10, Clearwater, FL 33767; phone: 727-442-8301; fax: 727-442-8304; e-mail: rjsk1234@aol.com). Location: 0.478 acre located on the south side of Brightwater Drive, approximately 800 feet east of Hamden Drive. Atlas Page: 276A. Zoning District: Tourist (T) District – Small Motel District. Request: Flexible Development approval (1) to permit a Mixed Use (two attached dwellings and eight overnight accommodations [timeshares]) in the Tourist District where 10 attached dwellings (townhomes) were previously approved and constructed under FLD2002-11042, as a Comprehensive Infill Redevelopment Project, under the provisions of Section 2-803.C; and (2) Termination of Status of Nonconformity to permit parking for overnight accommodations (timeshares) that are designed to back into the public right-of-way (previously approved as attached dwellings [townhomes]), under the provisions of Section 6-109. Proposed Use: Mixed Use (two attached dwellings and eight overnight accommodations [timeshares]). Neighborhood Associations: Clearwater Beach Association (Jay Keyes, 100 Devon Drive, Clearwater, FL 33767; phone: 727-443-2168; email: papamurphy@aol.com); Clearwater Neighborhoods Coalition (Joe Evich, President, P.O. Box 8204, Clearwater, FL 33758). Presenter: Wayne M. Wells, AICP, Planner III. Member Coates moved to accept Wayne Wells as an expert witness in the fields of zoning, site plan analysis, code administration, and planning in general. The motion was duly seconded and carried unanimously. Planner Wayne Wells reviewed the request. The 0.478-acre property is on the south side of Brightwater Drive, approximately 800 feet east of Hamden Drive. On January 21, 2003, the CDB approved Case FLD2002-11042/PLT2002-11005, with six conditions of approval, permitting the redevelopment of this site with 10 townhomes with parking for each unit designed to back into the public right-of-way, replacing the existing overnight accommodation uses. On April 20, 2004, the CDB approved Case FLD2003-11058, with eight conditions of approval, Community Development 2007-12-18 12 permitting the construction of docks with 10 slips for the townhomes. On December 20, 2005, the CDB approved Case FLD2005-09095/PLT2005-00026, with three conditions for (1) Flexible Development approval to permit the addition of a pool and (2) Preliminary Plat approval revising the previously recorded plat to provide for the proposed pool. The townhomes were constructed under Building Permits #BCP2003-05509, -05512, - 05513, -05514, -05516, -05517, -05518, -05519, -05520 and -05521. The pool was constructed under BCP2005-06806. The City signoff on the County permit to construct the docks was issued under MIS2004-04031. On October 4, 2007, the Development Review Committee reviewed Case FLS2007- 09044 for Flexible Standard Development approval to permit overnight accommodations (timeshares) in existing Units 6, 7, 8, 9 and 10 where 10 attached dwellings (townhomes) were previously approved and constructed. Since the application created a Mixed Use of the property, which is a use not listed in the Tourist District and requires a Level 2 approval, and the issue of parking designed to back into the public right-of-way for overnight accommodations is not permitted, this application could not be approved as submitted and was denied. The applicant has submitted this application in response to the denial of FLS2007-09044. The property to the direct north across Brightwater Drive formerly was developed with overnight accommodation uses, but those uses have been demolished and the land is now vacant. The property to the east is presently developed with attached dwellings in two-story buildings, with a parking lot adjacent to the subject property. The property to the west at 145 Brightwater Drive has been redeveloped with nine attached dwellings (townhomes). The development proposal is to permit Mixed Use (two attached dwellings and eight overnight accommodations [timeshare/interval ownership]) in the Tourist District where 10 attached dwellings (townhomes) were previously approved and constructed under FLD2002- 11042. As stated above, this property has been developed with 10 townhomes. The property is located within the Small Motel District of Beach by Design, where mid-rise townhouses and timeshares between 2 – 4 stories above parking are contemplated. Mixed Use is not a use listed in the Tourist District and, to permit such, requires processing the request as a Level 2 application for Comprehensive Infill Redevelopment Project. From a use standpoint, timeshares/interval ownership is appropriate on Brightwater Drive. At least four of the existing townhomes were sold to individuals prior to recent changes to real estate market conditions. As real estate markets have diminished or slowed for the sale of townhomes, the applicant is seeking to sell units in this building in an alternative way as timeshares/interval ownership. Staff’s primary concern with this application is one of fairness to the individual owners in this building that doesn’t agree with this alternative use, as it will affect their investment in the property and the use expectations of the property. In this case, two individual owners have joined in on the application (William and Sharon Templeman, Jr. and Kathleen Hernandez), knowing and/or accepting the proposed use change, while two others have not (Chung Chen and David and Nancy Bundy). If all unit owners in this building were in agreement with the change in use and joined in as part of the request, Staff would not have this concern. As owners of units attached to one another in a building, certain common expectations of ownership and use are anticipated when considering and actually buying a unit in a particular development. Such expectations include getting to know your neighbors, especially in homeowners association meetings, and when using common facilities such as the swimming pool on the east side of the development. The proposal is inconsistent with the Comprehensive Infill Redevelopment Project criteria that it will “not substantially alter the essential use characteristics of the neighborhood”, with the neighborhood in this context being the overall Community Development 2007-12-18 13 development project of 10 units. The proposal is also inconsistent with the General Applicability criteria requiring “harmony with the…character of adjacent properties”, “hinder or discourage development and use of adjacent land and buildings” and “consistent with the community character of the immediate vicinity”, again relating in this context to the overall development project of 10 units. The configuration of parking as constructed where vehicles must back into the right-of-way and the request for Termination of Status of Nonconformity may be acceptable if the change in use is acceptable. Those units to be used as timeshares/interval ownership will be required to have strobe lights in each sleeping room, as well as a fire alarm system that meets a 75db sound level in each sleeping room, to meet Fire Code requirements. Any approval of the request should include a condition that permits to comply with such requirements be submitted to the City within 30 days of CDB approval. Additionally, the current multi-use dock approval includes the following condition of approval (FLD2003-11058): “That boats moored at these docks be for the exclusive use by residents of the 161 Brightwater Drive Townhomes and that there be no commercial activities at the docks (bait sales, vending, etc.).” A subsequent Level 2 application will be necessary to change the type of use for at least eight of the accessory docks from a multi-use dock (for attached dwellings) to a commercial dock (for overnight accommodations [timeshare/interval ownership]). Pursuant to Section 2-801.1 of the Community Development Code, the maximum allowable density for properties with a designation of Resort Facilities High is 30 dwelling units per acre or 50 overnight accommodation units per acre. As such, the maximum development potential of the overall parcel (all lots) is 14 dwelling units or 23 overnight accommodation units. The property was developed with 10 attached dwelling units. As a Mixed Use of two attached dwelling units and eight overnight accommodation units, the proposal is less than the maximum density permitted and is therefore consistent with the Countywide Future Land Use Plan. Pursuant to Section 2-801.1 of the Community Development Code, the maximum allowable I.S.R. (Impervious Surface Radio) is 0.95. The developed I.S.R. is 0.73, which is consistent with the Code provisions. Pursuant to Table 2-803 of the Community Development Code (to be used as a guide, since Mixed Use is not a use listed in the Tourist District), the minimum lot area for attached dwellings ranges between 5,000 – 10,000 square-feet and for overnight accommodations ranges between 10,000 – 20,000 square-feet. The existing lot area for this overall property (all lots) is 20,847 square feet, which exceeds Code provisions. Pursuant to Table 2-803 of the Community Development Code (to be used as a guide, since Mixed Use is not a use listed in the Tourist District), the minimum front setback for attached dwellings and overnight accommodations is 0 – 15 feet, the minimum side setback for attached dwellings and overnight accommodations is 0 – 10 feet and the minimum rear setback for attached dwellings is 10 – 20 feet and for overnight accommodations is 0 – 20 feet. The existing setbacks, constructed for the townhomes, are 20 feet front (to existing building), side (east) of 4.5 feet (to existing building), six feet (to existing pavement) and 10 feet (to existing pool deck), side (west) of 4.8 feet (to existing building) and six feet (to existing pavement) and rear of 18 feet (to existing building) and zero feet (to boardwalk and pool deck). These existing setbacks are not proposed to change with this application. Community Development 2007-12-18 14 Pursuant to Table 2-803 of the Community Development Code (to be used as a guide, since Mixed Use is not a use listed in the Tourist District), the maximum allowable height for attached dwellings and overnight accommodations can range between 35 – 100 feet. The site is located in the Small Motel District of Beach by Design, which restricts height to a maximum of four stories over ground-level parking. The existing building was constructed at a height of 25 feet, less than minimum Code requirements. When these townhomes were reviewed and approved, the Code required amount of parking was 1.5 spaces per unit. The townhomes were developed with a front setback of 20 feet from the front property line to the building, which allowed sufficient distance to park a vehicle in the driveway in front of the garage, as well as at least one vehicle in the garage, in a stacked arrangement, complying with the minimum number of parking spaces per unit. Included in the approval of Case FLD2002-11042/PLT2002-11005 was parking for each unit designed to back into the public right-of-way. Staff at the time of this application looked at townhomes as being similar in characteristics (backing into the right-of-way) as detached dwellings, where the Code specifically permits such design of parking. Such allowance for townhomes was reviewed on a case-by-case basis depending on the location in the community. The redevelopment trend for Brightwater Drive was residential and Brightwater Drive is a dead-end cul-de-sac. This proposal is to change eight of the ten units to overnight accommodations (timeshares/interval ownership), where the minimum parking requirement for overnight accommodations is one parking space per unit. The Code only permits parking designed to back into the public right-of-way for detached dwellings (and for the townhomes under the approvals for FLD2002-11042/PLT2002-11005). The townhomes were constructed with the parking configuration approved, allowing back out parking, and this configuration cannot be changed. Recent Code rulings from the City Attorney’s office prevent changes to Code requirements in Article 3 unless the Code sets out such ability to request a change through a process. There is no such process for allowing stacked parking or back out parking except for detached dwellings. As such, the existing parking for the townhomes can be considered nonconforming. The applicant is requesting a Termination of Status of Nonconformity to allow the existing built condition of back out parking to remain and be allowed for the overnight accommodation use in these units (see additional discussion under Termination of Status of Nonconformity below). The development proposal includes a request for termination of status of nonconformity to permit parking for overnight accommodations (timeshares/interval ownership) that are designed to back into the public right-of-way (previously approved as attached dwellings [townhomes]). The criteria for termination of status of nonconformity, as per Section 6-109 of the Community Development Code and outlined in the table below, including compliance with perimeter buffer requirements, the provision of required landscaping for off-street parking lots and bringing nonconforming signs, lighting and accessory uses/structures into compliance with the Code will be met with this development proposal. In the Tourist District there are no required perimeter buffers and all landscaping required as part of Cases FLD2002-11042/PLT2002-11005 and their building permits was installed properly. There are no existing/remaining nonconforming signs, lighting or accessory uses/structures, as these were brought into compliance with Code provisions with the redevelopment of the property into townhomes. The applicant merely desires to maintain the parking pattern established on the site when it was redeveloped with townhomes for the new use of overnight accommodations (timeshare/interval ownership). Community Development 2007-12-18 15 Pursuant to Section 3-201.D.1 of the Community Development Code, all outside mechanical equipment shall be screened so as not to be visible from public streets and/or abutting properties. Existing air conditioning units are located above the FEMA base flood elevation on the roof of each unit, which are screened by parapet walls of the building. As such, the development proposal is consistent with the Code with regard to screening of outdoor mechanical equipment. Pursuant to Section 3-911 of the Community Development Code, for development that does not involve a subdivision, all utilities including individual distribution lines shall be installed underground unless such undergrounding is not practicable. All on-site utilities are located underground in conformance with this Code requirement. When developed as townhomes, all required landscaping was installed in accordance with plans approved by the City. There are no changes proposed with this request. When developed as townhomes, each unit utilizes black barrels for the disposal of solid waste, which are stored inside the individual garages, and are placed curbside by unit owners or the management company on trash collection days. There are no changes proposed with this request. There are no existing signs (freestanding or attached) for this existing development and there are no proposed signs under this proposal. There are no outstanding Code Enforcement issues associated with the subject property. The Development Review Committee (DRC) reviewed the application and supporting materials at its meeting of October 4, 2007, and deemed the development proposal to be sufficient to move forward to the CDB, based upon the following findings of fact and conclusions of law: Findings of Fact: 1) That the 0.478 acres is located on the south side of Brightwater Drive, approximately 800 feet east of Hamden Drive; 2) That on January 21, 2003, the CDB approved Cases FLD2002-11042/PLT2002-11005, with six conditions of approval, permitting the redevelopment of this site with 10 townhomes with parking for each unit designed to back into the public right-of-way, replacing the existing overnight accommodation uses; 3) That on April 20, 2004, the CDB approved Case FLD2003-11058, with eight conditions of approval, permitting the construction of docks with 10 slips for the townhomes; 4) That on December 20, 2005, the CDB approved Case FLD2005-09095/PLT2005-00026, with three conditions for (1) Flexible Development approval to permit the addition of a pool and (2) Preliminary Plat approval revising the previously recorded plat to provide for the proposed pool; 5) That the 10 townhomes were constructed on this overall property under Building Permits #BCP2003-05509, -05512, -05513, -05514, -05516, -05517, -05518, -05519, -05520 and -05521; 6) That the property is zoned Tourist District and is located within the Small Motel District of Beach by Design, where mid-rise townhouses and timeshares between 2 – 4 stories above parking are contemplated; 7) That the development proposal is to permit Mixed Use (two attached dwellings and eight overnight accommodations [timeshare/interval ownership]) where 10 attached dwellings (townhomes) were previously approved and constructed under FLD2002-11042; 8) That Mixed Use is not a use listed in the Tourist District and, to permit such, requires processing the request as a Level 2 application for Comprehensive Infill Redevelopment Project; 9) That the development proposal complies with Code density limitations as a Mixed Use and provisions Community Development 2007-12-18 16 relating to building height, setbacks and landscaping still meet Code requirements; 10) That existing parking for the units, where it is designed to back into the public right-of-way, is nonconforming and is requested to remain in its constructed configuration and be permitted for the proposed overnight accommodation (timeshares/interval ownership) units through the Termination of Status of Nonconformity provisions; 11) That required number of parking spaces for the overnight accommodation (timeshares/interval ownership) units, as well as the attached dwellings (townhomes), will be met with this proposal; 12) That at least four of the existing townhomes were sold to individuals prior to recent changes to real estate market conditions; 13) That two individual owners have joined in on the application, knowing and/or accepting the proposed use change, while two others have not; 14) That the proposal is inconsistent with the Comprehensive Infill Redevelopment Project criteria that it will “not substantially alter the essential use characteristics of the neighborhood”, with the neighborhood in this context being the overall development project of 10 units; 15) That the proposal is also inconsistent with the General Applicability criteria requiring “harmony with the…character of adjacent properties”, “hinder or discourage development and use of adjacent land and buildings” and “consistent with the community character of the immediate vicinity”, again relating in this context to the overall development project of 10 units; and 16) That there are no outstanding Code Enforcement issues associated with the subject property. Conclusions of Law: 1) That the development proposal is consistent with the Standards as per Section 2-801.1 and Table 2-803 of the Community Development Code; 2) That the development proposal is inconsistent with the Flexibility criteria as per Section 2-803.C of the Community Development Code, specifically that it “not substantially alter the essential use characteristics of the neighborhood”, with the neighborhood in this context being the overall development project of 10 units; 3) That the development proposal is inconsistent with the General Standards for Level Two Approvals as per Section 3-913 of the Community Development Code, specifically requiring “harmony with the…character of adjacent properties”, “hinder or discourage development and use of adjacent land and buildings” and “consistent with the community character of the immediate vicinity”, again relating in this context to the overall development project of 10 units; and 4) That the development proposal is consistent with the Termination of Status of Nonconformity criteria as per Section 6-109 of the Community Development Code. Based upon the above, the Planning Department recommends denial of the Flexible Development application (1) to permit a Mixed Use (two attached dwellings and eight overnight accommodations [timeshares]) in the Tourist District where 10 attached dwellings (townhomes) were previously approved and constructed under FLD2002-11042, as a Comprehensive Infill Redevelopment Project, under the provisions of Section 2-803.C; and (2) Termination of Status of Nonconformity to permit parking for overnight accommodations (timeshares) that are designed to back into the public right-of-way (previously approved as attached dwellings [townhomes]), under the provisions of Section 6-109. Member DiPolito recused herself. In response to questions, Mr. Wells said the use and the parking cannot be separated. He said staff is unaware of any mixed use or timeshare/townhome configurations on Brightwater or on Bayway. He said the Code does not define overnight accommodations as a residential use. Concern was expressed that when property owners purchased their units, it was with the understanding the use would not change. Community Development 2007-12-18 17 Robert Gebaide, representative, stated this is a townhome project, not a condominium project, and affected parties are governed by townhome documents, and related amendments. He stated he represents Clearwater Townhomes, Inc. and the owners of units 1, 6, 7, 8, 9, and 10. Property owners William and Sharon Templeman own units 2 and 3 and have joined in the project. Mr. Gebaide said this application was previously approved as a townhome project and boat docks were subsequently approved. This parcel is in the Tourist District, which allows vacation ownership and overnight use, including timeshare ownership and fractional development. He said the acceptability of overnight accommodation use within this project is being questioned today. He expressed concern that Staff has narrowly defined the definition neighborhood to only be this 10-unit project. He said the “neighborhood” includes Hampton Drive to the end of the street. He said the fractional business formalizes a process that has existed for years and provides a mechanism for joint ownership. The project does not involve selling a period of time. He said the fractional use declaration has not been drafted yet. Timeshare estates are deeded interests in property. The project is proposed as overnight accommodations. The minimal rental period would be 120 days. He said these units would be vacation homes, as are 80% of the units on Brightwater Drive. There would be 8 owners per unit. He stated owners are not considered renters and there would be no rentals in this project. Property owners would have use of their units for one-eighth of a year. He said traditional timeshare development allows owners to use other units at other locations. He said 8 of 10 unit owners are required to agree to the amendments. He said 6 of the units are controlled by Clearwater Townhomes, Inc., and two other owners support and are part of this application. He said 70% of the owners could amend any provision of the declaration. He said Beach by Design provides for this use. He requested the CDB consider the character of the neighborhood and adjacent properties. He said whether or not all the owners of this project wish to allow fractional development is irrelevant, as it is permitted by amendment of the townhome documents. Sharon Templeman, applicant, stated she is the only full-time resident in the building. She said she supports the concept of fractional ownership. She said currently, many investors own the units and fractional ownership will benefit everyone. In response to a question, Ms. Templeman said although not initially happy about the conversion to timeshares, she supports the opportunity to increase property values, which are decreasing. She said she now has confidence in the parties involved in the conversion. David Bundy requested party status. Nancy Bundy requested party status. Member Coates moved to grant David Bundy and Nancy Bundy party status. The motion was duly seconded and carried unanimously. Party status holder Nancy Bundy stated she and her husband are not investors. Their main residence is out of state. However, no one lives in her home when they are out of town. Ms. Bundy said she was never contacted at any time regarding an amendment to the townhome’s status or plans to convert them to timeshares. She said unless all property owners agree to the conversion to timeshare status, the use cannot be changed. When she purchased her townhome, it was not under the premise the units would be converted to timeshares. If converted to timeshares, these units could be used by 64 different parties. She said the conversion also would greatly reduce the value of her unit. Community Development 2007-12-18 18 Party status holder David Bundy questioned who the owners of the complex were. He said there are only one or two hotels on this street. The majority of buildings are townhomes. He expressed concern regarding higher mortgage interest rates for timeshares, the difficulty of obtaining homeowner’s insurance if the units are converted to timeshares, parking, deterioration of the units by timeshare users, drugs, parties, and other potential nuisances. In response to a question, Ron Augustine, representative for Clearwater Townhomes, Inc., stated lots 14, 15, and 16 of Bayside Subdivision #2 in the development application were replatted into lots 1 through 10, are owned individually, and were recorded under homeowners’ association documents. Clearwater Townhomes, Inc. owns 1, 6, 7, 8, 9 and 10. Another owner owns unit 4. Ms. Dougall-Sides said due to the lack of all parcel owners’ signatures on the application, Florida Statutes have not been met. Mr. Augustine stated it is possible that due to the common elements, the application included descriptions that included other unit owners’ names. Mr. Augustine said he was part of the Rogers Beach Development group that originally constructed these units. Mr. Augustine said Mr. Smeltz was Vice-President of Clearwater Townhomes, Inc. and signed documents on behalf of Clearwater Townhomes, Inc. to purchase Unit #1. He stated he notarized Mr. Smeltz’s signature. In response to a question, Mr. Gebaide said the present participants in the Homeowners’ Association include all of the owners. He said the Homeowner’s Association is still retained by the developer. Ms. Bundy stated Clearwater Townhomes, Inc. had stated they were the owners of units 1, 6, 7, 8, 9, and 10. She said unit owners were blindsighted by this proposal. She said unit owners feel they are being forced into the timeshare conversion. She said only if her back is against the wall, she would agree to the conversion. Mr. Augustine said he and Mr. Gebaide are not the owners of those units, but representatives of Clearwater Townhomes, Inc. He said two other people own that corporation. He stated that Ms. Bundy has known of the proposal for at least 60 days. He said this is a work in progress. In response to a question, Ed Smeltz, Clearwater Townhomes, Inc. representative, stated the original intent was to complete the units in order to sell them. However, once the real estate market changed, he was approached regarding fractional ownership, and in late September plans were made to begin the process for the conversion. One person spoke in opposition to the application. Mr. Wells reported the case was properly noticed. He said the affidavit of ownership was signed by Kathleen Hernandez and the Templemans. The affidavit for Clearwater Townhomes, Inc. was signed by Vice-President Smeltz and notarized by Mr. Augustine. He said Brightwater Drive continues to develop as a residential area. He said there are approximately six overnight accommodation uses on Brightwater Drive. Mr. Wells said all multi- family and townhomes must comply with the 30-day rental regulation. He said Beach by Design allows timeshares in the small motel district. The Clearwater Townhome, Inc. website indicates they are marketing two other timeshare development. However, staff is unaware of their locations. Ms. Bundy said this change is solely for the monetary gain of the owner with the most units. She said original purchasers bought their units as townhomes and can still be sold as townhomes. She said Article I of the townhome documents cannot be changed. Community Development 2007-12-18 19 Mr. Bundy said many of the other articles in the covenants prohibit the intent of this application. He urged the applicant to abide by the covenants that were originally in place. Mr. Gebaide stated it was understood from the beginning that not all owners would agree to the proposed conversion. He stated those unit owners would not be affected by this conversion, they are not part of this application, nor would their units become timeshares. Discussion ensued with comments that although this project is in the Tourist District, this application is for a mixed use, and there are no other mixed use fractional ownership developments occurring in the general area. Concern was expressed this project would set a precedent in a residential area with single-family dwellings, that it is not consistent with the neighborhood, would be disharmonious for property owners, and is not the originally intended use. It was felt that the intent of the townhome documents were not to allow 70% of owners to change the use, but to allow amendments to the documents. Concern was expressed that the parking configuration is different for a mixed use project, and that the developers would have the opportunity to override the other owners. It was felt that this project does not meet all the criteria in the Code. Member Dame moved to deny Case FLD2007-11037 based on the evidence and testimony presented in the application, the Staff Report, and at today’s hearing, and hereby adopt the Findings of Fact and Conclusions of Law stated in the Staff Report. The motion was duly seconded. Members Milam, Coates, Tallman, Behar, Dame, Alternate Member Carlough, and Chair Fritsch voted “Aye”. Member DiPolito abstained. Motion carried. The meeting recessed from 5:58 to 6:05 p.m. G. CONSIDERATION OF APPEALS (Items 1 – 2): 1. Case: – APP2007- 00003403 Magnolia Drive Owner/Appellant: Kiely M. Allen. Representative: Jeff Smith, J.W. Smith Design Group, LLC (35095 U.S. Highway 19 North, Suite101, Palm Harbor, FL 34684; phone: 727-785-4441; fax: 727-789-6275; e-mail: roger@jwsmithdesign.com). Location: 0.54-acre property at the southeast corner of Magnolia Drive and Bay Avenue. Atlas Page: 295B. Zoning: Low Medium Destiny Residential (LMDR) District. Request: An appeal from a Level One (flexible standard development) approval decision pursuant to Community Development Code (CDC) Section 4-501.A.3, that a requested reduction to the front (north) setback from 25 feet to 20 feet (to building) as a Residential Infill Project is inconsistent with the Flexibility Criteria as set forth in CDC Sections 2-203.B.1.a and 2-203.B.1.c, as well as, the General Standards for Level One Approvals as set forth in CDC Sections 3-913.A.1 and 3-913.A.5. Proposed Use: Detached Dwelling. Neighborhood Association(s): Clearwater Neighborhoods Coalition (Joe Evich, President, P.O. Box 8204, Clearwater, FL 33758). Presenter: Robert G. Tefft, Planner III. Member Tallman moved to accept Robert Tefft as an expert witness in the areas of zoning, site plan analysis, code administration, and planning in general. The motion was duly seconded and carried unanimously. Community Development 2007-12-18 20 Planner Robert Tefft reviewed the request. The 0.54-acre subject property is located at the southeast corner of Magnolia Drive and Bay Avenue within the Harbor Oaks subdivision. The property consists of a single-family detached dwelling that according to the Pinellas County Property Appraiser’s Office was constructed in 1925, although the building and property have been subsequently updated/improved. On August 3, 2007, a Flexible Standard Development (FLS) application was submitted for a Residential Infill Project to allow an addition for the existing detached dwelling with a reduction to the front (north) setback from 25 feet to 10 feet (to building). The applicant amended this request following the Development Review Committee (DRC) meeting of September 6, 2007, changing the requested reduction from 10 feet to 20 feet. Following the amendment of the application, City staff conducted a review of the proposal and identified several issues. The review conducted by the Planning Department noted that pursuant to CDC Section 2-203.B.1.a, a determination of the front setback shall consider the extent to which existing structures in the neighborhood have been constructed to a regular or uniform setback from the right-of-way. The application indicated that the proposal would be in keeping with the detached dwelling and privacy wall located 20 feet from the front property line on the abutting parcel to the east at 415 Magnolia Drive, as well as the properties located at 314 and 322 Magnolia Drive. However, other than this statement no evidence was provided to substantiate the claim or indicate what those setbacks might be at 314 and 322 Magnolia Drive. As such, staff commented that further evidence needed to be provided “(such as a block survey) that the proposed building addition at a setback of 20 feet will be consistent with a regular/uniform setback already established by structures in the neighborhood”. In addition to the above, the Planning Department also noted that pursuant to CDC Section 2- 203.B.1.c, the reduction in front setback shall be consistent with neighborhood character. No evidence addressing this criterion other than that previously noted was provided in the application. As such, staff commented that evidence needed to be provided “(such as a block survey) that existing structures in the neighborhood have been constructed at a setback consistent with the proposed 20-foot setback”. On October 4, 2007, the DRC met with the property owner and designated agent for the subject development proposal to discuss the staff comments on the proposal. The Planning Department comments provided at the meeting identified certain criteria that needed to be satisfactorily addressed in for the application to be approved. Those comments further stated that the criteria needed to be addressed (through revised plans and/or application materials) by October 15, 2007 with a final determination on the application to be made no later than November 1, 2007. During the course of the meeting the owner/agent indicated that evidence in support of the reduced front setback had already been submitted to the case planner, who was not in attendance at the DRC meeting. This evidence was indicated as addressing the criteria set forth in CDC Sections 2-203.B.1.a, 2-203.B.1.b, and 2-203.B.1.c. The DRC mistakenly accepted this statement that evidence addressing the comments had been provided and while the owner/agent had provided evidence, it was, in fact, that same evidence that the comment was based upon. Upon being questioned by the agent, the DRC further indicated that the submittal of additional evidence to address those comments would not be necessary. Additionally, the DRC indicated to the owner/agent that following a consultation with the case planner, if there were no outstanding issues with the proposal, then a development order approving the application would be issued the next week. Subsequent to the DRC meeting, the evidence submitted by the owner/agent during the course of the meeting was reviewed by the case planner. The evidence was found to reference Community Development 2007-12-18 21 setbacks for the same three properties as the evidence having previously been submitted in the application with the addition of another property, 304 Magnolia Drive. However, the evidence on the new property was determined to be irrelevant to the request as it pertained to a five-foot high wall, the setbacks for which are governed by a different section of the Community Development Code. The evidence provided stated that there are three properties along Magnolia Drive with a setback of 20 feet; however there are 18 properties that front on Magnolia Drive (not including the subject property). The position of the Planning Department is that a 20- foot front setback for three of the 18 properties does not constitute a regular or uniform setback in the neighborhood that would support the request. In contrast, the evidence provided supported the position that a regular/uniform setback of 25 feet or greater had been established in the neighborhood and a reduced setback would be inconsistent with that setback as well as the character of the neighborhood. Therefore, on October 23, 2007, the Planning Department issued a letter to the designated agent for the project, that the information provided at the DRC meeting did not sufficiently address the Planning Department comments concerning the application, and further indicated that those comments needed to be sufficiently addressed prior to the issuance of a development order approving the application. rd Subsequently, the Planning Department staff discussed the letter of October 23 with the agent as well as those events that transpired at the DRC meeting. It was relayed to the agent that while the DRC may have indicated that no further evidence was required, it was done in error due to confusion over what had already been provided by the owner/agent and what was actually being provided at the meeting. It was also relayed that even though the DRC may have indicated that the application was to be approved, it is not within the powers of the DRC to actually approve an application, and that the DRC only acts as a recommending body to the Community Development Coordinator who is ultimately responsible for the approval or denial of a Level One (flexible standard development) application. On November 1, 2007, in the absence of the submittal of further evidence sufficient to make positive findings concerning the application, the Community Development Coordinator issued a development order denying the application. The development order (copy attached) stated that positive findings could not be made with regard to the application, and the application was therefore denied based upon the following findings of fact and conclusions of law: Findings of Fact: 1) That the 0.54 acre subject property is located at the southeast corner of Magnolia Drive and Bay Avenue; 2) That the subject property is located within the Low Medium Density Residential (LMDR) District and the Residential Urban (RU) Future Land Use Plan category; 3) That there are no active Code Enforcement violations associated with the subject property; 4) That the request to reduce the front (north) setback from 25 feet to 20 feet requires that positive findings be made with regard to the Flexibility Criteria set forth in CDC Section 2-203.B; and 5) That the request to reduce the front (north) setback from 25 feet to 20 feet requires that positive findings be made with regard to the General Applicability Criteria set forth in CDC Section 3-913.A. Conclusions of Law: 1) That the development proposal is inconsistent with CDC Section 2-203.B.1.a, in that a determination of the front setback shall consider the extent to which existing structures in the neighborhood have been constructed to a regular or uniform setback from the right-of-way; 2) That the development proposal is inconsistent with CDC Section 2- 203.B.1.c, in that the reduction in front setback shall be consistent with neighborhood character; 3) That the development proposal is inconsistent with CDC Section 3-913.A.1, in that the proposed development of the land will be in harmony with the scale, bulk, coverage, density and Community Development 2007-12-18 22 character of adjacent properties in which it is located; and 4) That the development proposal is inconsistent with CDC Section 3-913.A.5, in that the proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development. An appeal from the above Level One (flexible standard development) decision was filed on behalf of the property owner by J.W. Smith Design Group, LLC on November 8, 2007, consistent with the timeframe established for an appeal to be initiated in CDC Section 4-502.A. Pursuant to CDC Section 4-501.A.3, the CDB has the authority to hear appeals from Level One (flexible standard development) decisions. Pursuant to CDC Section 4-504.A, the CDB shall review the application, the recommendation of the Community Development Coordinator, conduct a quasi-judicial public hearing on the application, and render a decision in accordance with the provisions of CDC Section 4-206.D.5 granting the appeal, granting the appeal subject to specified conditions, or denying the appeal. It is noted that pursuant to CDC Section 4-504.B, in order to grant an appeal, overturning or modifying the decision appealed from, the CDB shall find that based on substantial competent evidence presented by the applicant or other party that each and every one of the following criteria are met: 1) The decision appealed from misconstrued or incorrectly interpreted the provisions of this development code; 2) The decision of the CDB will be in harmony with the general intent and purpose of this development code; and 3) The decision of the CDB will not be detrimental to the public health, safety and general welfare. In response to a question, Mr. Tefft reviewed variances granted to nearby properties for various reasons. He said the property immediately to the east was granted a variance for a front setback of 22 feet, one was for a damaged pool cage that required reconstruction, and the other property received a variance many years ago. Jeff Smith, representative, said in 2003 the applicant was granted a variance on the property. As the applicants’ needs have changed since that time, they propose to construct two detached two-car garages on the property. Now the applicant is being told by staff that the previous variance was not processed properly. Mr. Smith said Magnolia Drive has a large right- of-way and the distance from this property to the edge of the curb is larger than in most other subdivisions. At the October 4, 2007 meeting with staff, they approved the request for a variance with some conditions. Staff indicated they had suitable information to proceed with the application for a building permit. However on October 23rd, staff indicated they would not allow the variance and gave the applicant seven days to provide a block survey. He said a block survey in this neighborhood would cost $3,000 to $4,000. He said three other properties on Magnolia Drive encroach into the 20-foot setback. He stated there are no deed restrictions in Harbor Oaks. Kiely Allen, applicant, said she just received notice of this hearing last week. She procured 14 statements in support of the variance. She said this house is in a historic neighborhood. She already has spent hundreds of thousands of dollars restoring the home. She said she prefers that not all of the 4 garage doors face Magnolia Drive, as it would be aesthetically unpleasing. She said on the southwest corner of Jasmine and Magnolia is an industrial building with oversized garage doors. Her proposal would not have an industrial look. She said throughout Harbor Oaks are detached garages close to minimum setbacks. She felt the proposal will maintain the character of the neighborhood. She said the Code should be considered in the context of the area. Ms. Allen said one of the garages needs to be deeper to accommodate a trailer or boat and would be set back the farthest on Magnolia Drive. However, the northernmost Community Development 2007-12-18 23 section seems to be at issue. Ms. Allen questioned how decisions are made regarding cases. It was remarked that all facts and evidence are considered and cases are reviewed on an individual basis. In response to a question, Mr. Allen said he did respond to staff’s request for a block survey within seven days. He provided staff with information regarding previous hearings and a number of other homes that had received variances. Mr. Smith referred to a diagram of the project. In response to a question, Mr. Smith said he could not move the project farther back on the property, due to the swimming pool. In response to a question, Mr. Smith said it would be unfair to the applicant to agree to a continuance. He said it already has been established that there are homes that encroach into their setbacks. Ms. Grimes reported that the Code provides for a quick timeframe to schedule hearings and allows the CDB to continue a case in order to obtain additional information. Discussion ensued. It was remarked that Mr. Smith only referenced 3 of 18 properties on the street that encroach on the setbacks. It was felt that the board needs more information regarding properties in the neighborhood other than just on Magnolia Drive and time to review the information presented today by the applicant. It was questioned, if 30 days would be sufficient for the applicant to provide a block survey or additional information due to the holidays. Ms. Grimes reviewed the timeframe for appeals. Mr. Smith stated that staff is unwilling to consider any other homes in the neighborhood except those on Magnolia Drive. Therefore, a block survey would not make any difference to staff. Mr. Delk said that staff had suggested to the applicants that a block survey would provide competent evidence to support their proposal. However, staff did not dictate that the survey had to be done. Mr. Delk reviewed the timeframe for submitting information to Planning staff in time for the next CDB meeting. Member Tallman moved to continue Case APP2007-00003 to January 15, 2008. The motion was duly seconded. One person spoke in opposition to the application. Upon the vote being taken, Members Milam, Tallman, Behar, DiPolito, Alternate Board Member Carlough, and Chair Fritsch voted “Aye”. Motion carried. 2. Case: APP2007-00004 – 2849 Shady Oak Court Owner/Appellant: Peter Vosotas Representative: Michael Roth, Behar Design Inc., (2657 Augusta Drive South, Clearwater, FL 33761; phone: 727-488-9490; fax: 727-669-5575; e-mail: jordan@behardesign.com). Location: 0.90-acre parcel located at the southeast corner to the Shady Oak Court cul-de-sac. Atlas Page: 211B Zoning District: Low Medium Density Residential (LMDR) District. Request: An appeal from a Level One (flexible standard development) approval decision pursuant to Community Development Code (CDC) Section 4-501.A.3, that a requested increase in the gross floor area of an accessory structure from ten percent to 21.5 percent and an increase in the allowable height from 15 feet to 16.5 feet is inconsistent with the General Standards for Level One Approvals as set forth in CDC Sections 3-913.A.1 and 3-913.A.5. Proposed Use: Accessory Structure (detached three car garage). Community Development 2007-12-18 24 Neighborhood Associations: Clearwater Neighborhoods Coalition (Joe Evich, President, P.O. Box 8204, Clearwater, FL 33758); Eagle Glen Condominium Association (Lois Beyer, President, 3161 Landmark Drive #512, Clearwater, FL 33761). Presenter: A. Scott Kurleman, Planner II. Member Behar recused himself. Ms. Grimes reported that there are five board members present. A vote of four members is required to act on this application. Ed Hooper, representative, stated the applicant has requested the case be heard today. Member DiPolito moved to accept Scott Kurleman as an expert witness in the fields of zoning, site plan analysis, planning in general, landscape ordinance, tree ordinance, and code enforcement. The motion was duly seconded and carried unanimously. Planner Scott Kurleman reviewed the request. The subject parcel comprises a 0.90- acre property located on the southeast corner of the Shady Oak Court cul-de-sac. Shady Oak Court is located on the south side of Landmark Drive approximately 280 feet northwest of the intersection of Knollwood Court and Landmark Drive. This parcel is located on the Countryside Country Club Golf Course. On August 1, 2007, a Flexible Standard Development (FLS) application was submitted requesting an increase in the allowable gross floor area of an accessory structure from ten percent of the gross floor area of the principle structure to 21.5 percent and an increase in the allowable building height from 15 feet to 16.5 feet. Following the determination of Completeness on August 9, 2007 notification letters were sent to all property owners within 500 feet of the subject proposal. Five letters of opposition were received by the Planning Department (copies attached). CDC Section 3-913.A.1 requires proposed development of land to be in harmony with the scale, bulk, coverage, density and character of adjacent properties and Section 3-913.A.5 requires the development to be consistent with the community character of the immediate vicinity. Review by staff show no accessory structures adjacent to the subject property or within the immediate vicinity. At the September 6, 2007 Development Review Committee (DRC) meeting staff informed the applicant and his representatives that the submitted materials did not support approval for the proposal based on the above criteria. The applicant’s agent asked for clarification of the staff interpretation and indicated additional materials supporting the application would be provided. Subsequently the agent provided a narrative comparing the proposal’s Floor Area Ratio (FAR) favorably with area properties and listing three (3) addresses with accessory structures. Staff review of this further submission determined that the provided addresses were for accessory structures over a mile from the subject property thereby not meeting the adjacent or immediate area standard and that FAR only addressed a portion of the requirement to be in scale, bulk, coverage, density and character standard. On November 14, 2007, in the absence of the submittal of further evidence sufficient to make positive findings concerning the application, the Community Development Coordinator issued a development order denying the application. The development order was therefore denied based upon the following findings of fact and conclusions of law: Community Development 2007-12-18 25 Findings of Fact: 1) That subject parcel comprises 0.90 acres and is located on the southeast corner of the Shady Oak Court cul-de-sac; 2) That the subject property is located within the Low Density Residential (LDR) District and the Residential Urban (RU) Future Land Use Plan Category; 3) That currently the site is developed with a detached dwelling; 4) That the applicant seeks relief from required 10 percent limitation for accessory structures under Code provisions of Section 3-201.B.5; 5) That there are no pending Code Enforcement issues with this site; and 6) That adjacent uses are zoned Low Density Residential (LDR), Low medium Density Residential (LMDR) and Open Space Recreation (OS/R). Conclusions of Law: 1) Staff concludes that the proposal complies with the standards and criteria of Sections 2-101.1.and 2-102; 2) Staff further concludes that the proposal is in compliance with the accessory uses/structures criteria of Section 3-201.B; 3) The proposal is not in compliance with each and every general applicability criteria per Section 3-913 of the Community Development Code; 4) That the proposed increase in gross floor area of the accessory structure is not consistent with the character of adjacent properties and the community character of the immediate vicinity; and 5) The development is not compatible with the surrounding area. An appeal from the above Level One (flexible standard development) decision was filed on behalf of the property owner by Behar Design, Inc. on November 21, 2007, consistent with the timeframe established for an appeal to be initiated in CDC Section 4-502.A. Pursuant to CDC Section 4-501.A.3, the CDB has the authority to hear appeals from Level One (flexible standard development) decisions. Pursuant to CDC Section 4-504.A, the CDB shall review the application, the recommendation of the Community Development Coordinator, conduct a quasi-judicial public hearing on the application, and render a decision in accordance with the provisions of CDC Section 4-206.D.5 granting the appeal, granting the appeal subject to specified conditions, or denying the appeal. It is noted that pursuant to CDC Section 4-504.B, in order to grant an appeal, overturning or modifying the decision appealed from, the CDB shall find that based on substantial competent evidence presented by the applicant or other party that each and every one of the following criteria are met: 1) The decision appealed from misconstrued or incorrectly interpreted the provisions of this development code; 2) The decision of the CDB will be in harmony with the general intent and purpose of this development code; and 3) The decision of the CDB will not be detrimental to the public health, safety and general welfare. Mr. Hooper stated this is a unique lot in a residential urban area. He referred to a diagram of the property and reviewed the dimensions of the lot and the proposed garages. The applicant proposes that one of the garages be large enough to storage their antique car, lawn equipment, etc. He said this property has a dense hedge that ranges from six to eight feet and provides a barrier to the golf course. If the applicant attached a roofline structure from a new garage to the side of his house he could build a garage five times the size and double the height of the proposed garages. The detached garages would be less massive and more in scale with the current structure. There are three properties with detached garages that are more than a mile away from this property. He stated in 2007, the City approved and permitted a detached garage in an unusually large lot where no garage existed previously. Mr. Hooper said no commercial enterprise such as car repair, etc. would be performed on the property. Mr. Hooper said the neighbors prefer that cars not be parked on the street. He felt the application meets the criteria in the Code and it does not set a precedent, and the FAR (Floor Area Ratio) would only be 0.15%. Community Development 2007-12-18 26 William Hugill requested party status. Member DiPolito moved to grant William Hugill party status. The motion was duly seconded. Members Milam, Tallman, DiPolito, Alternate Member Carlough, and Chair Fritsch voted “Aye”. Member Behar abstained. Motion carried. Party status holder William Hugill said he has lived in this area for 30 years. He said Landmark Woods 2 deed restrictions prohibit tents, shacks, garages, etc., including commercial activity, except for temporary structures used by contractors used in construction work. He questioned the purpose of the detached garage proposed due to its size and the amenities proposed such as a bathroom with a shower and a sink and an air conditioning pad on the exterior. He said the structure is not in harmony with the scale of the neighborhood and would impair the value of adjacent properties. He provided photographs depicting views of the proposed project from his property. In response to questions, Mr. Hooper said in determining the structure’s adherence to the character of adjacent properties, part of the analysis was based on a property at 900 Spencer Street, which had no accessory structures in the vicinity but was granted a variance to the setback. Additionally, this project would be much smaller and shorter than an attached structure that could be built without approval of the CDB. He stated the applicant does not want to attach the garage to the house with a walkway, as it impacts their view of the golf course. In response to a question, Planning Manager Neil Thompson said 900 Spencer Street is south of Druid Road in a different neighborhood. Mr. Kurleman said the City does not regulate or enforce deed restrictions or homeowner association rules. Ms. Dougall-Sides said deed restrictions can lapse after a number of years. The deed restrictions referred to by Mr. Hugill were enacted in 1978. She said a statutory procedure provides that neighborhoods can reactivate those restrictions. It is unknown if that has occurred in this case. In response to a question, Mr. Hugill said he did not know if there is an active homeowners’ association in place. He said the property on Spencer Street is not in this neighborhood. In response to a question, Mr. Hooper stated Mr. Hugill has not shown there is an active homeowners’ association and current deed restrictions in place, and unless a NCOD (Neighborhood Conservation Overlay District) is in place, the City cannot enforce those restrictions. Mr. Hooper referred to an architectural example of the proposed detached garage with a hip roof. He stated that regardless of where Mr. Hugill lives, he could not see anything other than a hedge. There is no diminishment of his property and there is no entitlement to a view that he does not enjoy anyway. The applicant feels the project meets the criteria in the Code. The project is for the applicant’s personal use only. In response to a question, Mr. Hooper said the principal structure is 4,495 square-feet MOL (more or less). The garage would be 1,200 square- feet, or 21.5% of the main structure. Discussion ensued with comments that staff has not misconstrued the criteria in the Code, that the Code which states no detached dwellings are permitted in this area, that there are no detached dwellings in the area, and that the applicant could construct an attached garage. Member DiPolito moved to deny the appeal for Case APP2007-00004, and affirm the Staff’s development order denying the application based on the evidence and testimony Community Development 2007-12-18 27 presented in the application, the Staff Report, and at today's hearing, and hereby adopt the Staff's Findings of Fact and Conclusions of Law stated in the Staff Report. The motion was duly seconded. Members Tallman, DiPolito, Milam, Alternate Member Carlough, and Chair Fritsch voted "Aye". Member Behar abstained. Motion carried. H. ADJOURNMENT The meeting adjourned at 7:30 p.m. ~)/~ Board Reporter Community Development 2007-12-18 28 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL AND OTHER LOCAL PUBLIC OFFICERS &ail eV\.... o OTHER LOCAL'AGENCY nH Rd. W WCl(bo( Ocd(~ /' COUNTY '/l.(ilV ccUA- P;.t.d!o.? 3315 DATE ON WHI~OTE OC, CURRED ~. I~ 'rOO"-::t APPOINTIVE WHO MUST FILE FORM 88 This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective Or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). * * * * * * ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. * * * * * * APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you . must disclose the nature of the confli9t before making arty attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: . You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 88 - EFF. 1/2000 PAGE 1 APPOINTED OFFICERS (continued) . A copy of the form must be provided immediately to the other members of the agency. . The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: . You must disclose orally the nature of your conflict in the measure before participating. . You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST VO (e e V'I V ~ Po I ~ t- () , hereby disclose that on "Du.. - f B.1 ~ 0 -q- ,20_: I, (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, )S. inured to the special gain or loss of e V ~ ---r-O W'V\ +-1 ~ ~ I ~ (! whom I am retained; or inured to the special gain or loss of is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: , by . which rL\) -\=) le~ d.-D 0 '1- - J \ O'~ -.:t CJ!.LtuI.-AS~ Tow 1\ V1VvlU? S -4\ (!.. , ) ) ~~. -for r-~~b~ 'Develo~ ~ ~ cc _~t'ct UAk 'Fcfct'.-r WIJA~ ~ ~ ~ ---+w- ~~ ' ~L1]9r-S C\.sso~~~~ w ~ ~ MC~' ttAL Du I B) --;00 '1- v~~~ Signature Date Filed NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES ~112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENAL TV NOT TO EXCEED $10,000. CE FORM 88 - EFF. 1/2000 PAGE 2 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER lOCAL PUBLIC OFFICERS P,' r1 f II o OTHER LOCAL AGENCY v'7'{...i!::eA. APPOINTIVE WHO MUST FILE FORM 88 This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). * * * * * * * * ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. * * * * * * * APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: . You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 88 - EFF. 1/2000 PAGE 1 APPOINTED OFFICERS (continued) . A copy of the form must be provided immediately to the other members of the agency. . The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: . You must disclose orally the nature of your conflict in the measure before participating. . You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST I, ~ r&Vt\. ~b( , hereby disclose that on ~Du. . l~ 20 O"=f:- , -- (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, $.. inured to the special gain or loss Of_Vete-r V 060 tCLS whom I am retained; or inured to the special gain or loss of is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: , by , whicll f:)y-p O/IL ~O}CL ~ ~(9~ M?1f~ c.): ;;;'00 "+ - 6000 Lf - d g 4' 4 ~ ~ (!.,-t, ) !-~ ~ J-t.ct~th'L- tvv.- ~ ~ fJ--PcA- J.. tJ.A'- ~., ..L-- ~ ~ '~r'O s-e~~ r~Dt I ~ De-e . /6 TJO 0 :::j- ) Date Filed NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES 9112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 88 - EFF. 1/2000 PAGE 2'