MINUTES OF THE REGULAR SARASOTA CITY COMMISSION MEETING OF NOVEMBER 17, 1997, AT 6:00 P.M. PRESENT: Mayor Gene Pillot, Vice Mayor Jerome Dupree, Commissioners Mollie Cardamone, and Nora Patterson (arrived at 6:10 p.m.), City Manager David Sollenberger, City Auditor and Clerk Billy Robinson, and City Attorney Richard Taylor ABSENT: David Merrill PRESIDING: Mayor Gene Pillot The meeting was called to order in accordance with Article III, Section 9(a) of the Charter of the City of Sarasota at 6:05 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. 1. PRESENTATION RE: MAYOR'S CITATION TO SHIRLEY AMORE, IN RECOGNITION OF HER APPOINTMENT AS SARASOTA COUNTY LIBRARIES DIRECTOR #1 (0048) through (0182) Mayor Pillot stated that tremendous progress has been made on construction of the new Downtown library, one of the most important projects in the community; and invited Shirley Amore to come before the Commission. Mayor Pillot presented and read in its entirety a Certificate of Appreciation which stated that the City looks forward with anticipation to the many services and amenities the community will be provided when the new state-of-the-art public library opens in Downtown; that Ms. Amore, the newly appointed Libraries Director for Sarasota County and member of the American Library Association and thé Florida Library Association will coordinate the opening of the new Downtown public library; that Ms. Amore recently served for seven years as the Associate Director for Central Services and the Broward County Library, in Fort Lauderdale and brings twenty-five years of experience in library science. Mayor Pillot expressed congratulations on behalf of the Commission and all the citizens of the community in recognition of Ms. Amore's appointment on October 27, 1997, as Libraries Director for Sarasota County. Commissioner Patterson arrived at 6:10 p.m. Ms. Amore expressed appreciation and stated that the opportunity to. serve a community which has just demonstrated strong support for. library services by passing the Local Option' Salés Tax (L.0.S.T.) is an honor; that $13 million to build two new libraries and expand four other facilities will be generated from BOOK 42 Page 15508 11/17/97 6:00 P.M. BOOK 42 Page 15509 11/17/97 6:00 P.M. L.O.S.T. revenues; that opening the Downtown library is the highest priority; that wonderful celebration events will be organized for the dedication. Mr. Amore recognized her husband, John, who was present in the audience. 2. PRESENTATION RE: TOPICS OF INTEREST AND CURRENT EVENTS OF PARTICULAR CONCERN TO THE RESIDENTS OF THE CITY OF SARASOTA #1 (0187) through (0475) Vice Mayor Dupree stated that many letters are received from residents commending City employees; that a letter from David Mayer, McIntosh Middle School Golf Coach, to Patrick Calhoon, Sports Facilities Director, expresses appreciation for the patient and cooperative treatment provided the school's golf team by Ray Grady, Manager, and other Staff at Bobby Jones Golf Complex; that a letter from Captain Terry Lewis, Sarasota County Sheriff's Office, expressed appreciation for the way Officer Carolyn Hooton provided his wife and father-in-law with comforting words and help during the difficult time following the death of Captain Lewis's mother-in-law; that a letter of appreciation was received from Sanford Schlitt, President, Bird Key Improvement Association, Inc., regarding the courteous, cheerful, and efficient demeanor of Kathy Wasdin, Off-Duty Police Coordinator; that Marion Robinson, a mother whose son was arrested after being initially reported missing, expressed gratitude to Investigator Debbie Dowd; that Officer Todd Lantz displayed professionalism and genuine concern during a recent accident involving Michael Colley and Lisa Harnist. Vice Mayor Dupree continued that the following is a listing of citizens who have written letters of commendation and the Police Officer being commended: Alexander Boudreau regarding Sergeant Forrest Paulson Charlotte Graver regarding Officer Matthew Venon = Brian Seely regarding Sergeant Larry Kimball = Albert Mitchell regarding Officer Douglas Peters - James Zloto, Special Agent in Charge, Department of the Treasury regarding Officers Jon Barron and John Lake - Gian Ruggiero regarding Officer Ricardo Ruiz del Vizo - Ronald Ostan, Vice President, Florida West Coast Manager regarding Officer Donzia Franklin Diana Portillo, South County Victim Advocate, Safe Place and Rape Crisis Center (SPARCC) regarding Officer Chris Panichello and Officer Ricardo Rivera Mary Lou Fletcher, Librarian, First Church of Christ Scientist, regarding Officer John Bukiet Gwen DeMichele regarding Officer Bolb Bell Vice Mayor Dupree stated that actions by Police Officers beyond the call of duty are described by the letter writers; that appreciation is expressed to the Police Officers who display deportment and skill in the performance of their duties. Mayor Pillot stated that although negative incidents are sometimes reported by the media, the positive actions of City employees are not often publicized; that Vice Mayor Dupree is sharing many positive stories of interactions between members of the public and Police Officers. 3. APPROVAL OF MINUTES RE: MINUTES OF THE REGULAR SARASOTA CITY COMMISSION MEETING OF NOVEMBER 3, 1997 = APPROVED (AGENDA ITEM I-1) #1 (0479) through (0490) Mayor Pillot asked if the Commission had any changes to the minutes. Mayor Pillot stated that hearing no changes, the minutes of the regular City Commission meeting of November 3, 1997, are approved by unanimous consent. 4. CHANGES TO THE ORDERS OF THE DAY = APPROVED #1 (0502) through (0542) city Auditor and Clerk Robinson presented the following Changes to the Orders of the Day: A. Remove Consent Agenda No. 1, Item No. III A-6, Approval Re: Authorize the Mayor and the City Auditor and Clerk to execute the Development Agreement between the City of Sarasota and the Wynnton Group, Inc., concerning the disposal and redevelopment of Mission Harbor, per the request of City Manager Sollenberger. B. Add Consent Agenda No. 1, Item No. III A-8, Approval Re: Authorize the Mayor to execute a letter to Comcast Cable Television, concerning negative option billing and calculation of bad debt expense and late payment fee as further grounds for preliminary denial of the franchise renewal, per the request of City Manager Sollenberger. On motion of Commissioner Cardamone and second of Vice Mayor Dupree, it was moved to approve the Changes to the Orders of the Day. Motion carried unanimously (4 to 0) : Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. 5. BOARD ACTIONS: REPORT RE: ADVANCED PLANNING BOARD/LOCAL PLANNING AGENCY'S MEETING OF NOVEMBER 6, 1997, CONCERNING TRANSMISSION TOWER REGULATIONS - SET PROPOSED ORDINANCE NO. 98-4030 FOR PUBLIC HEARING ON DECEMBER 1, 1997 (AGENDA ITEM II-1) #1 (0544) through (1108) BOOK 42 Page 15510 11/17/97 6:00 P.M. BOOK 42 Page 15511 11/17/97 6:00 P.M. Jane Robinson, Director of Planning and Development, Paul Costanzo, Chief Planner, and Robert Lindsay, Chairman of the Planning Board/Local Planning Agency (PBLP), came before the Commission. Mr. Lindsay presented the following items from the PBLP regular meeting of November 6, 1997: A. Proposed Ordinance No. 98-4030 regulating Commercial Wireless Telecomunications Facilities Mr. Lindsay stated that the proposed regulations regarding wireless telecommunications facilities were debated at the PBLP public hearing with several attorneys representing the telecommunications industry; that the PBLP recommends deleting from proposed Ordinance No. 98-4030 the specific requirement that applicants seeking permitting for commercial wireless telecommunication facilities must first ascertain the appropriateness of city-owned property as potential sites for installation of a facility; that four of the five PBLP members felt the requirement was awkward and perhaps improper as the City would be competing with other landowners; that other means of generating revenue such as imposition of a franchise tax on operators of telecommunications towers should be pursued; that the members of the telecommunications industry should be free to select sites based on electrical and transmission needs; that installation of antennas on existing towers or buildings should be encouraged. Mr. Lindsay continued that although opposed by industry representatives, requiring a security deposit is supported by the PBLP as worthwhile and necessary to provide the City funds to remove abandoned facilities; that although the AT&T representative indicated that none of their wireless telecommunications facilities have ever been abandoned in 15 years of conducting such operations, technological changes in the future may not require the current facilities. Commissioner Patterson stated that language in proposed Ordinance No. 98-4030 indicates three or more levels of array heights are restricted to a maximum height of 200 feet; and requested clarification of array heights? Mr. Lindsay stated that an array of antennas is a grouping of such devices hung at different height levels on a telecommunications tower; that a microwave dish may be installed at a distance half way up the tower and a group of several antennas providing additional functions installed at a higher level. - Commissioner Patterson asked if the number of allowable array heights on each telecommunications tower is limited by proposed Ordinance No. 98-4030? Mr. Lindsay stated yes. Commissioner Patterson asked why Industrial (I) and Industrial, Light and Warehousing (ILW) Zone Districts were deleted from the list of commercial zone districts in which telecommunications towers would be allowed as a conditional use? Mr. Lindsay stated that industrial zone districts were deleted from the proposed ordinance addressing conditional uses as telecommunications towers are currently and should remain a permitted use in those zone districts; that the towers will be allowed in the front yards of properties located in industrial zone districts. Commissioner Patterson asked if a substantial distance requirement will be established between a telecommunications tower in an I or ILW Zone District and the nearest residential property? Mr. Lindsay stated yes. Commissioner Cardamone asked if the ability exists to charge operators of telecommunications towers a franchise fee? Mr. Lindsay stated that specific information is not available; however, other utilities are currently charged franchise fees; that operators should be allowed to search for and buy or lease appropriate sites from which a specific transmission area can be serviced; that operators would be required to first explore and eliminate as inappropriate all City-owned sites before being allowed to negotiate with private landowners if the requirement is not deleted from the proposed ordinance; that the City becomes an onerous landlord and is provided with no incentive to develop an efficient process addressing leases for telecommunications towers; that the ability to lease land to operators of wireless telecommunications facilities should be provided to the City and private landowners on an equal basis; that potential City-owned sites could be mapped in advance and presented as available for lease to the telecommunications industry; that blanket leases for City-owned land in several locations could be developed to provide operators with the ability to develop, for example, 12 transmission towers under one lease rather than executing leases with 12 different landowners; that telecommunications providers should not be required to fund and develop elaborate electronic calculations to prove the inappropriateness of City-owned sites before being allowed to negotiate with private landowners. Commissioner Cardamone stated that requiring operators to explore possible City-owned sites was suggested as a possible source of revenue and a method of restricting the locations of unattractive telecommunications towers; and asked if a tax on operators of wireless telecommunications facilities can be charged? BOOK 42 Page 15512 11/17/97 6:00 P.M. BOOK 42 Page 15513 11/17/97 6:00 P.M. City Manager Sollenberger stated that the city's authority to impose a tax is unknown; however, a franchise fee is not applicable as franchise fees are reimbursements for the use of public rights-of-way. V. Peter Schneider, Deputy City Manager, came before the Commission and stated that the telecommunications industry is intensifying lobbying efforts at the Federal level against any regulatory tax; that currently, revenue to local governments is limited to the proceeds from publicly owned land leased to telecommunications providers. Commissioner Cardamone asked if precedent has been established regarding leases of publicly owned land to telecommunications providers? Mr. Schneider stated yes. Commissioner Patterson asked why the prohibition of wireless telecommunications facilities on Ken Thompson Park is recommended? Mr. Costanzo stated that the view shed from the western shoreline of the Bay to the other side of the Bay at Ken Thompson Park should be protected; that the strategic location of the Park and the presence of Mote Marine Laboratory were taken into consideration and the Park determined as an inappropriate location for an additional tower. Commissioner Patterson stated that Mote Marine Laboratory does not have a telecommunications tower; however, a tower on Ken Thompson Park is shared by radio stations WYNF and WSRZ. Mr. Lindsay stated that the proposed ordinance prohibits placement of telecommunications towers within 1,400 linear feet from the high-water mark of either Sarasota Bay or the Gulf of Mexico; that no location on Ken Thompson Park is available; that telecommunications towers which are an eyesore to travelers on the Ringling Causeway Bridge and passing boats should be prohibited. Commissioner Patterson stated that complaints regarding the existing radio tower would have been received if telecommunications towers are perceived by the public as eyesores. Mr. Lindsay stated that the radio tower has been established on Ken Thompson Park for over 50 years. Commissioner Patterson stated that no negative comments from real-estate clients have ever been forthcoming; that Ken Thompson Park is City-owned land; that decisions regarding development of a telecommunications tower on the Park should be made by the Commission after receiving public input; that the City should not be restricted from determining appropriate uses for publicly owned lands. Mr. Lindsay stated that the existing radio tower is an historical fixture; that a request to develop a 400-foot structure on Ken Thompson Park would probably be denied by the current City government. Commissioner Patterson stated that the height of the tower would be controlled by the City. Mr. Lindsay stated that maintaining the City's authority to regulate uses on publicly owned land is a valid point; that security deposits are not required for telecommunications towers installed on City-owned land; that the City's authority to ensure removal of abandoned towers would be contained in the lease. Commissioner Patterson stated that an amendment to the newly executed lease with Mote Marine Laboratory may allow Mote to sub-lease to a telecommunications provider; that proposed Ordinance No. 98-4030 should be advertised with the prohibition against locating telecommunications towers on Ken Thompson Park deleted. Commissioner Cardamone stated that the ability of current leaseholders of City property to sub-lease to operators of wireless telecommunications facilities should be researched. Mr. Schneider stated that most if not all of the leases for City-owned property specifically require any potential sub-lease brought before the Commission for approval; that the sub-leases must have a purpose relating to the operation of the main leaseholder. Mayor Pillot stated that the recommendation to include language in proposed Ordinance No. 98-4030 providing the City flexibility to regulate uses on publicly owned land is supported; that he will probably not vote to allow installation of a telecommunications tower on Ken Thompson Park; however, flexibility to current and future Commissions should be provided. Vice Mayor Dupree agreed. Ms. Robinson stated that the PBLP found proposed Ordinance No. 98-4030 consistent with the Sarasota City, Plan. city Manager Sollenberger stated that the Administration recommends setting proposed Ordinance No. 98-4030 for public hearing on December 1, 1997. On motion of Commissioner Cardamone and second of Commissioner Patterson, it was moved to approve the Administration's recommendation. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. BOOK 42 Page 15514 11/17/97 6:00 P.M. BOOK 42 Page 15515 11/17/97 6:00 P.M. 6. BOARD ACTIONS: REPORT RE: ROSEMARY DISTRICT REDEVELOPMENT ADVISORY BOARD'S SPECIAL MEETING OF OCTOBER 28, 1997 (AGENDA ITEM II-2) #1 (1109) through (1612) Donald Hadsell, Director of Housing and Community Development, and Roy Smith, Chairman, and Daniel Bilyeu and Richard Bass, Members of the Rosemary District Redevelopment Advisory Board, came before the Commission. Mr. Smith presented the following items from the Rosemary District Redevelopment Advisory Board's special meeting of October 28, 1997: A. Rosemary District Land Use Plan Mr. Smith stated that the Rosemary District Land Use Plan was endorsed by the Rosemary District Redevelopment Advisory Board on April 29, 1997; that on October 28, 1997, the Land Use Plan was amended after certain elements were found to be in conflict with the Sarasota City Plan; that all issues except the use of commercial properties south of 10th Street have been addressed to the satisfaction of the Advisory Board. Mr. Bass stated that the Advisory Board, under Resolution 95R-841 was given specific tasks, one of which was the implementation of the Rosemary District Plan adopted by the Commission in November 1994; that the original Plan has been refined and every parcel reviewed on a lot-by-lot basis; that transportation network and infrastructure components have been researched and a specific land-use plan for every parcel developed. Mr. Bass continued that the absence from the Sarasota City Plan of an industrial land-use classification on 10th Street is the only remaining issue; that "Central City" is one of the nine land-use classifications proposed by Staff to replace Impact Management Areas (IMAs) in the Sarasota City Plan; that the area around 10th Street has been proposed for classification as "Central City"; that the language proposed for inclusion in the Sarasota City Plan indicating allowable uses in a Central City land-use classification has recently been returned to the Board; that a conflict may not exist; however, further research by the Advisory Board should be conducted; that the Central City land- use classification in the Comprehensive Plan should be implemented according to the criteria developed in the Rosemary District Land Use Plan. Mr. Bilyeu stated that single-family homes which should be allowed throughout the Rosemary District are not included as a permitted use under the Central City land-use classification; that a joint meeting between the Commission and the Board may be beneficial. Vice Mayor Dupree stated that he has been contacted by several residents referencing a current rumor that the Cohen Way public housing complex will be demolished in the next few weeks; that an October 30, 1997, memorandum from Michael Taylor, Deputy Director of Planning and Development, indicates Cohen Way should be converted from a public-housing entity to privately owned housing. Mr. Bass stated that the Advisory Board has no authority or power to order demolition of the Cohen Way public housing complex. Mayor Pillot stated that the Commission also lacks such power. Commissioner Patterson stated that Michael Raymond, the Executive Director of the Sarasota Housing Authority (SHA), recently held a meeting of Cohen Way public housing complex tenants to address an article in the Sarasota Herald-Tribune indicating demolition of the Cohen Way public housing complex as the Director's long-term goal; that the rumor recently circulating in the community that the Cohen Way public housing complex would be demolished in the near future was firmly denied; that the SHA has no ability to order demolition; however, Mr. Raymond does not believe funds should be expended to rehabilitate the Cohen Way public housing complex. Mr. Smith stated that Mr. Raymond who was recently appointed to the Advisory Board has indicated the Cohen Way public housing complex should be replaced with improved housing in the future. Mr. Bass stated that the Rosemary District Land Use Plan, developed after intensive study including expert input by architects and realtors, is intended to facilitate economic redevelopment in the Rosemary District. Commissioner Cardamone asked if the Advisory Board intends to work with the Planning Board/Local Planning Agency (PBLP) to include the Rosemary District Land Use Plan in the Comprehensive Plan update and if the two plans differ only in the prohibition of single-family residences in the Central City land-use classification? Mr. Bass stated that the absence of single-family residences and the availability of industrial land use south of 10th Street are issues requiring resolution. Commissioner Cardamone stated that the Rosemary District Redevelopment Advisory Board should be invited to the meetings at which the Comprehensive Plan update will be addressed. BOOK 42 Page 15516 11/17/97 6:00 P.M. BOOK 42 Page 15517 11/17/97 6:00 P.M. City Manager Sollenberger stated that the Administration recommends receiving the Board report of the special Rosemary District Redevelopment Advisory Board meeting of October 28, 1997, and referring the Rosemary District Land Use Plan for inclusion in the Sarasota City Plan. On motion of Commissioner Patterson and second of Commissioner Cardamone, it was moved to approve the Administration's recommendation. Motion carried unanimously (4 to 0) : Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. 7. CONSENT AGENDA NO. 1: ITEM NOS. 1, 2, 3, 4, 5, 7 AND 8 - APPROVED; REMOVED ITEM NO. 6 (AGENDA ITEM III-A) #1 (1614) through (1645) 1. Approval Re: Authorize the Administration to proceed with issuing a Request For Proposal (R.F.P.) for leasing of City owned property for the Parent Child Care Center located at 1742 Dr. Martin Luther King, Jr., Way 2. Approval Re: Ratification of three year Collective Bargaining Agreement between the City of Sarasota and the Southwest Florida Police Benevolent Association, Inc., (SWFPBA), for October 1, 1997 through September 30, 2000 for permanent full-time and part-time Police Officers (1st and 2nd Class) and Sergeants, also, permanent full-time Dispatchers, Sr. Dispatchers, Communication Supervisors, Community Service Aide Supervisors, Community Service Aides and permanent Criminalists I, II and III 3. Approval Re: Ratification of three year Collective Bargaining Agreement between the City of Sarasota and the Southwest Florida Police Benevolent Association, Inc., (SWFPBA), for October 1, 1997 through September 30, 2000 for permanent full-time Lieutenants 4. Approval Re: Authorize the Administration to negotiate a professional services contract and the Mayor and City Auditor and Clerk to execute a contract with Bishop & Associates, Sarasota, Florida, (R.F.P. #98-9), to provide professional engineering consulting services for the preliminary design of a recreational bike trail from the bayfront to New College 5. Approval Re: Authorize the Mayor and City Auditor and Clerk to execute the revised Loan Agreement between the City of Sarasota and the Community Redevelopment Agency to reimburse Theatre Associates, LTD, for work on the irrigation system, the placement of sidewalk medallions, the placement of crushed concrete under the pavers and medallions ($6,040), and cost overruns ($33) in the total amount of $6,073 7. Approval Re: Set for Public Hearing Local Law Enforcement Block Grant 97-LBVX3441 8. Approval Re: Authorize the Mayor to execute a letter to Comcast Cable Television, concerning negative option billing and calculation of bad debt expense and late payment fee On motion of Commissioner Cardamone and second of Vice Mayor Dupree, it was moved to approve Consent Agenda Items 1, 2, 3, 4, 5, 7, and 8. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. 8. CONSENT AGENDA NO. 2: ITEM 1 (RESOLUTION NO. 98R-1022) - ADOPTED; ITEM 2 (RESOLUTION NO. 98R-1024) - ADOPTED; ITEM 3 (RESOLUTION NO. 98R-1026) - ADOPTED; ITEM 4 (RESOLUTION NO. 98R-1027) = ADOPTED (AGENDA ITEM III-B) #1 (1655) through (1800) Deputy City Auditor and Clerk McGowan read proposed Resolution No. 98R-1027 in its entirety and proposed Resolution Nos. 98R-1022, 98R-1024, and 98R-1026 by title only. 1. Adoption Re: Proposed Resolution No. 98R-1022, accepting reports of abatement of nuisances, and costs incurred, pertaining to the demolition of buildings or structures in accordance with the Standard Unsafe Building Abatement Code as adopted by the City; directing the assessment of liens against the real property upon which such costs were incurred; providing for the recording of said assessments in the City's "Assessment Book for Local Improvements" and in the Official Records of the Clerk of Circuit Court in and for Sarasota County; providing for the accumulation of interest on said liens; etc. (Title Only) 2. Adoption Re: Proposed Resolution No. 98R-1024, accepting reports of abatement of nuisances, and costs incurred, pertaining to the repair, securing, or demolition of buildings or structures in accordance with the Standard Unsafe Building Abatement Code as adopted by the City; directing the assessment of liens against the real property upon which such costs were incurred; providing for the recording of said assessments in the City's "Assessment Book for Local Improvements" and in the Official Records of the Clerk of Circuit Court in and for Sarasota County; providing for the accumulation of interest on said liens; etc. (Title Only) BOOK 42 Page 15518 11/17/97 6:00 P.M. BOOK 42 Page 15519 11/17/97 6:00 P.M. 3. Adoption Re: Proposed Resolution No. 98R-1026, accepting abatement of nuisance and cost reports pertaining to the removal of accumulations of junk, rubbish, trash or other offending matter; directing the assessment of a lien against the property described in each abatement report for the amount stated therein; etc. (Title Only) 4. Adoption Re: Proposed Resolution No. 98R-1027, appropriating $6,073 from the Unappropriated Fund Balance of the General Fund, and to make a loan to the Community Redevelopment Trust Agency for the purpose of reimbursing Theatre Associates, LTD, for work on the irrigation system and the placement of sidewalk medallions at the Main Street and US 301 Streetscape Project; etc. On motion of Vice Mayor Dupree and second of Commissioner Cardamone, it was moved to adopt Consent Agenda No. 2, Item Nos. 1 through 4, inclusive. Mayor Pillot requested that Deputy City Auditor and Clerk McGowan proceed with the roll-call vote. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. Mayor Pillot requested Deputy City Auditor and Clerk McGowan to explain the public hearing process. Deputy City Auditor and Clerk McGowan stated that at this time petitioners have 15 minutes to address the Commission and 5 minutes for rebuttal; that any citizen who has signed up to speak has 5 minutes. All individuals wishing to speak during the public hearings were requested to stand and were sworn in by Deputy City Auditor and Clerk McGowan. 9. CONTINUED PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 97-4025, TO AMEND ORDINANCE NO. 95-3897 BY THE SUBSTITUTION OF DEVELOPMENT PLAN PETITION 97-DPR-13 TO INCORPORATE MODIFICATIONS TO THE MORRILL COURT PROJECT INCLUDING AMONG OTHERS, THE ADDITION OF TWO (2) RESIDENTIAL UNITS, THE ADDITION OF LOT 13, OWEN BURNS REALTY COMPANY SUBDIVISION, A/K/A 253 SOUTH OSPREY AVENUE, AS WELL AS TO ALLOW OPEN-AIR DINING IN CONNECTION WITH A RESTAURANT IN LIEU OF THE PREVIOUSLY APPROVED DEVELOPMENT PLAN 95-DPR-02; PROVIDING FOR THE CONDITIONAL REZONING FROM RMF-4 ZONE DISTRICT TO CRT ZONE DISTRICT THE FOLLOWING PROPERTY: LOT 13, OWEN BURNS REALTY COMPANY SUBDIVISION, A/K/A 253 SOUTH OSPREY AVENUE; APPROVING DEVELOPMENT PLAN 97-DPR-13; PROVIDING FOR CONDITIONS; REPEALING ORDINANCES IN CONFLICT: ETC. (TITLE ONLY) (PETITION NOS. 97-C0-07 & 97-DPR-13, PETITIONER RUSSELL MOORE, DESIGN STUDIOS WEST, REPRESENTING LAW BUILDING 1 - GENERAL PARTNERSHIP) PASSED ON FIRST READING AND 10. PUBLIC HEARING RE: PROPOSED SPECIAL EXCEPTION PETITION NO. 97-SE-07, TO PERMIT A 50 SEAT OPEN-AIR DINING FACILITY IN CONNECTION WITH A RESTAURANT IN THE CRT ZONE DISTRICT AS PART OF THE MORRILL COURT PROJECT; THE LOCATION OF THE PROPOSED OPEN-AIR DINING FACILITY IS MORE SPECIFICALLY DEPICTED IN DEVELOPMENT PLAN PETITION 97-DPR-13 TO BE LOCATED AT PROPERTY AT 269 SOUTH OSPREY. AVENUE; DEVELOPMENT PLAN PETITION 97-DPR-13 IS REFERENCED IN PROPOSED ORDINANCE NO. 97-4025 WHICH, IF ADOPTED, WOULD APPROVE SAID DEVELOPMENT PLAN: SAID PROPERTY BEING LOCATED BETWEEN MORRILL STREET, SOUTH OSPREY AVENUE AND LINKS AVENUE, AS MORE PARTICULARLY DESCRIBED IN SAID APPLICATION, ETC. (PETITION NO. 97-SE-07, PETITIONER RUSSELL MOORE, DESIGN STUDIOS WEST, REPRESENTING LAW BUILDING 1 GENERAL PARTNERSHIP) APPROVED WITH CONDITION STIPULATING THE HOURS AT WHICH THE OPEN-AIR DINING FACILITY MUST BE VACATED; REQUESTED SIDEWALKS BE INCREASED TO FIVE FEET IN WIDTH IF FEASIBLE BY ENGINEERING STANDARDS (AGENDA ITEM IV-1) #1 (1801) through (1243) City Attorney Taylor stated that the public hearings pertaining to Conditional Rezoning Ordinance No. 97-4025 and Special Exception Petition 97-SE-07, continued from the November 3, 1997, regular Commission meeting, should be opened simultaneously; that members of the public who spoke at the prior public hearing will be allowed to address new information presented this evening. Commissioner Cardamone asked if the hours of operation for the proposed restaurant will be addressed? City Attorney Taylor stated yes. Jane Robinson, Director of Planning and Development came before the Commission, referred to a site plan displayed on the overhead projector depicting a residential/comerclal development proposed for location north of Morrill Street betwéen Links and Osprey Avenues and stated that proposed Ordinance No. 97-4025 modifies Ordinance No. 97-3897, a previously approved conditional rezoning, by amending the site plan originally submitted; that revised Development Plan 97-DPR-13 adds another parcel, two additional residential units, and additional commercial space to the project; that the applicant has also filed Petition No. 97-SE-07, a special exception to permit an open-air dining facility; that the Planning Board/Local Planning Agency (PBLP) found the amendment consistent with the Sarasota City Plan and the City's Tree Protection Ordinance and recommended Commission approval subject to the uses allowed in Ordinance No. 97-3897 and BOOK 42 Page 15520 11/17/97 6:00 P.M. BOOK 42 Page 15521 11/17/97 6:00 P.M. the petitioner's submitting final covenant documents at issuance of a building permit and that the covenant documents shall be consistent with the special exception conditions imposed and detail live/work square footage maximums and minimums. Ms. Robinson stated that at the November 3, 1997, regular Commission meeting, the Commission requested the hours of operation for the open-air facility be regulated; that the special exception should include a condition stipulating the open-air dining facility must be vacated one hour after cessation of food and beverage service; that language should be included in the Land Development Regulations (LDRs) update requiring all outdoor dining premises throughout the City vacated one hour after cessation of food and beverage service. Commissioner Patterson asked the hours of operation for the open-air dining facility at Towles Court? Ms. Robinson stated that the hours of operation at Towles Court are the same as recommended for the Morrill Court Project; that service must cease at 10 p.m. Sunday through Thursday and 11 p.m. on Friday and Saturdayi however, the patrons at Towles Court are not required to vacate the open-air facility one hour after cessation of food and beverage service as required for the Morrill Court Project. Commissioner Patterson stated that the interior sidewalk on the site plan is only four feet in width; that the Engineering Design and Criteria Manual (EDCM) requires a width of five feet; that no landscaping along the borders of the sidewalk is indicated. Commissioner Cardamone stated that the sidewalk on Morrill Street is also indicated as four feet in width; that the sidewalks in front of many old neighborhoods are only three feet in width. Alexandrea Hay, Assistant City Engineer, came before the Commission and stated that the sidewalk width required by the EDCM is five feet; that four-foot sidewalks are sometimes installed in older neighborhoods with narrow roads; that the Americans with Disabilities Act (ADA) requires a minimum of 36 inches in width; however, the City's standard is five feet. Timothy Litchet, Manager of Building, Zoning, and Code Enforcement, came before the Commission and stated that at the November 3, 1997, regular Commission meeting, the Commission requested additional information regarding required parking at Morrill Court; that one parking space is required for each 250 square feet of floor area devoted to commercial use and one space is required for each dwelling unit in the Commercial, Residential Transition (CRT) Zone District; that the existing site plan reflects 47 parking spaces; that each mixed-use residential unit has a driveway and a garage to accommodate two vehicles; that a maximum of 21,000 square feet are proposed for residential use and a maximum of 10,000 square feet are proposed for commercial space; that the parking provided by the petitioner meets the requirements of the CRT Zone District. John Meshad, Attorney, Law Firm of Syprett, Meshad, Resnick & Lieb, representing Law Building One, General Partnership, and Russell Moore, Design Studios West, came before the Commission. Attorney Meshad stated that he is a partner in Law Building One, General Partnership, the ownership group; that the Morrill Court Project is a small development which has been addressed during numerous public hearings and meetings; that since the initial planning stages of the Morrill Court development project, Commission decisions have been made and votes cast on the John Ringling Towers property issue, the Mission Harbor development project, and the Lido Beach Hilton Hotel; that a legally formed neighborhood association in Laurel Park has not been discovered; that several groups represent various factions of the Laurel Park neighborhood, each with different reasons for opposing the Morrill Court Project, the primary one being a general dissatisfaction with Towles Court; that the Laurel Park Neighborhood Association (LPNA) would like to see the second floor of each structure isolated from the first floor with an outside entrance; however, the proposal is unacceptable; that he has lived in the community for 31 years, located his law firm on Ringling Boulevard in 1980, and has a significant investment in the neighborhood. Attorney Meshad continued that the property on Morrill Street between Links and Osprey Avenue was purchased occupied by tenants of a caliber requiring an armed guard to collect the rent; that drug use was prevalent, the property was constantly vandalized, and the situation could not be controlled; that conditions improved after the houses on the subject property were torn down. Attorney Meshad further stated that constructing a parking lot to accommodate his law firm and creating a development complementary to the neighborhood are the desired goals; that the LPNA has requested two separate uses created for each of the seven live/work units; that designing the second-floor residential space with an outside entrance accessed by a steep staircase will encourage or require the purchaser of the building to live elsewhere; that people paying in the high 100 or low 200 thousand dollars will not want to climb an outside set of stairs to reach their residence; that the parking would be intensified as the owner and the one or two employees who use the commercial area on the first floor and as many as four tenants occupying the second-floor apartment would require parking. Attorney Meshad stated further that Martha Hafner, President of the LPNA, was informed that the ownership group will attempt to BOOK 42 Page 15522 11/17/97 6:00 P.M. BOOK 42 Page 15523 11/17/97 6:00 P.M. require the purchasers of the seven live/work units to sign a contract agreeing to live on-site; that the Morrill Court Project will be developed to attract residents; that the residences at Towles Court are too small and provide no carports, garages, or driveways; that the LPNA originally opposed installation of driveways at Morrill Court; however, the request by the LPNA to eliminate driveways was rejected as buildings lacking a garage or driveway will not attract residents. Attorney Meshad further stated that the residential portion of the buildings should not be isolated from the commercial portion; that two sets of users would double the parking intensity; that a potential buyer with no intention of living at Morrill Court would rent the upstairs apartment if the two uses are separated; that the buildings are 1,500 square feet, 750 square feet upstairs and 750 square feet downstairs; that designing the buildings with one access for both the commercial and residential uses will require the owners to reside on-site or allow the second floor residential use to remain empty; that the purchasers of the seven live/work units should be encouraged to reside on- site; that the garage for each unit would be eliminated if an outside staircase is constructed and the second floor would be occupied by non-owners. Attorney Meshad continued that every time a public hearing is held, additional language developed by the City Attorney is included in proposed Conditional Rezoning Ordinance No. 97-4025 in an effort by the City to prevent past mistakes made at Towles Court; that a maxim exists in the law that "hard cases make bad law"; that the City is making bad law by planning the Morrill Court Project according to the sins of Towles Court; that Morrill Court will be new construction, larger in size, the buildings will look like residential houses, and the purchasers will be encouraged to sign a contract agreeing to live on-site; that Towles Court with only one or two sections sufficiently attractive as residences is an entirely different product. Mr. Moore stated that the Morrill Court Project has been in the planning stages for three years; that the petitioner has bent over backwards to accommodate the PBLP, the Planning Department, and the neighborhood. Commissioner Patterson stated that the parking needs of a law firm are greater than those required by owners of the live/work units; and asked the number of spaces proposed for use by the law firm? Attorney Meshad stated that 30 available parking spaces for 25 members of the law firm staff are desired; that approval of a 10,000 square-foot commercial component is requested in the petition; however, the 500 square-foot commercial component in - each of the seven live/work units totals 3,500 square feet of commercial use; that the footprint of the proposed office building is only 2,000 square feet; that a two-story, 4,000 square-foot office building requiring approximately 17 parking spaces will probably be built; that owners of the live/work units will park in the garage and the driveway; that the parking lot in the rear and north side of the Morrill Street Project will have 47 parking spaces; that 17 parking spaces have been designated for use by the proposed office building on the corner of Morrill Street and Osprey Avenue; that 30 parking spaces would be left for the law firm and the customers of the seven live/work units. Commissioner Patterson stated that the customers of the proposed restaurant are expected to be the biggest users of the parking spaces. Attorney Meshad stated that a final decision to develop a restaurant has not been made; that an abundance of parking spaces can be expected during the day if the restaurant is open only in the evening. Commissioner Patterson asked if the law firm parking is projected in the parking analysis developed by Staff. Attorney Meshad stated that a surplus of parking exists and is documented in the site plan petition and Staff documents. Mr. Moore stated that a surplus of approximately 12 parking spaces is expected for use by the customers of the live/work units. Attorney Meshad stated that the ownership group will control the project to ensure sufficient parking for the law firm; that doubling the intensity of the seven live/work units by separating the residential and commercial components would eliminate parking required for members of the law firm staff; that the ownership group will determine if a restaurant open only at night will be developed, in which case, no daytime parking will be required; however, flèxibility is required. Commissioner Patterson stated that a parking enforcement problem on the neighborhood streets is a concern. Attorney Meshad stated that the developer will control the parking use; that each of the seven live/work units have been guaranteed two permanent spaces in the garage and the driveway; that the office building on the corner of Osprey Avenue and Morrill Street could only be developed at 10,000 square feet if five stories are constructed; that approval of 10,000 square feet of commercial use is requested as the maximum amount allowed in the CRT Zone District by the Zoning Code. BOOK 42 Page 15524 11/17/97 6:00 P.M. BOOK 42 Page 15525 11/17/97 6:00 P.M. Commissioner Patterson stated that the parking intensity will be reviewed with Mr. Litchet; and asked why the sidewalks have been designed at four feet in width rather than the five feet required by the EDCM and would the petitioner agree to installing five-foot sidewalks? Attorney Meshad stated that sidewalk width is an issue addressed at the engineering level after approval of a site and development plan. Commissioner Patterson stated that a site and development plan before the Commission for approval is assumed to contain explicit engineering measurements. Mayor Pillot stated that the Engineering Department has indicated the EDCM standard for sidewalks is five feet in width. Commissioner Patterson stated that the standard can clearly be waived if a site and development plan is approved with sidewalks at a narrower width. Attorney Meshad stated that approval of a site and development plan does not waive the EDCM regulations; that five-foot sidewalks will be installed if required by City code. Vice Mayor Dupree requested clarification of the number of proposed parking spaces. Attorney Meshad stated that each of the seven live/work units will have two parking spaces, one in the garage and one in the driveway; that 47 parking spaces are proposed in the parking lot at the rear north side of the project. Mr. Moore stated that 12 surplus plus two handicapped parking spaces will be available for customers of the live/work units. Attorney Meshad stated that the City codes allow more than the 500 square feet of commercial space to which the live/work units have been restricted; that the Commission has exceeded the authority provided by the regulations addressing the CRT Zone District by requiring a residential component in each unit; that a specific number of residential units must be provided in order to qualify for a certain amount of commercial use; however, the existing ordinance relating to the CRT Zone District allows one fully commercial unit in the project; that the commercial use in each house has been reduced to 500 rather than 1,000 square feet as originally proposed; that the concession was made for the benefit of the neighborhood. Attorney Meshad continued that concession after concession has been made; that restricting the amount of commercial space in each live/work unit to 500 square feet eliminates the possibility of providing a total of 10,000 square feet of commercial space throughout the entire project as allowed in the Zoning Code; that the elimination of one live/work unit would further reduce the amount of commercial space as seven live/work units are required to qualify for 10,000 commercial square feet; that eliminating one live/work unit to enlarge the footprint of the proposed office building would automatically reduce the amount of allowable commercial space to 7,000 square feet; that deducting the 500 square feet of commercial in each live/work unit from the 7,000 square feet of total allowable commercial space would restrict the size of the office building to 4,000 square feet. Mayor Pillot opened the public hearing. City Attorney Taylor stated that the new issue introduced this evening is Special Exception 97-SE-07 which was not addressed at the previous public hearing; that members of the public who spoke previously regarding Conditional Rezoning Ordinance No. 97-4025 should limit comments to new data introduced this evening. Commissioner Patterson stated that the public hearings were continued to enable the LPNA to meet and address neighborhood concerns with the developer; that the result of any negotiations should be presented to the Commission. The following people came before the Commission: Martha Hafner, 1841 Oak Street, President, and Richard Liberi, 1810 Morrill Street and Dan McNichol, 1919 Morrill Street, Members, representing Laurel Park Neighborhood Association (LPNA). Ms. Hafner stated that the LPNA requested the residential and commercial uses in the live/work units be completely separate and outdoor staircases constructed for access to the second-floor residential use; that the petitioner opposes separation of the uses; that although the petitioner intends to sell only to buyers agreeing to reside on-site, further assurance is desired by the neighborhood. Mr. Liberi stated that the petitioner has indicated parking for the law firm is a major issue; however, the parking spaces were reduced when the original site plan was modified to add two more live/work units and an additional 2,500 square feet of commercial space; that the petitioner's motivation for changing the scope of the project is not understood. Mr. Liberi continued that developing five live/work units allowing 7,500 square feet of commercial space as indicated in the original proposal would have allowed more parking for the law firm and the Morrill Court Project; that the petitioner has indicated the full 10,000 square feet of commercial space allowed BOOK 42 Page 15526 11/17/97 6:00 P.M. BOOK 42 Page 15527 11/17/97 6:00 P.M. under the Zoning Code will not be used; that the justification for requesting approval for a specific square footage which will not be utilized is unknown. Mr. McNichol stated that the petitioner has spoken to and appears to know the intentions of potential buyers; that although the original purchaser of a live/work unit may sign an affidavit agreeing to reside on-site, future owners may not adhere to the terms of the agreement; that the petitioner has indicated parking for the law firm is the primary concern; however, the primary concern for the neighborhood is ensuring the live/work units are actually used as residences. Mr. McNichol continued that whether the occupant is a renter or an owner is irrelevant; that ensuring residency on-site is the primary concern; that the LPNA and the petitioner have been unable to resolve their differences; that the Morrill Court Project will set precedent; that the concept is exciting; however, issues such as residency requirements should be settled at this time; that residency cannot be enforced unless the commercial and residential uses have separate entrances. Mayor Pillot stated that the premise presented by the petitioner appears to be valid; that the LPNA's position indicating a renter is as acceptable as an owner in residence is surprising; that past experience has always indicated a widespread preference for owner-occupied residences; that owners are more likely to maintain and take pride in the condition of the dwellings; that providing a garage and driveway and avoiding construction of a separate staircase will ensure owner-occupancy as the absence of a separate access prevents rental of the second-floor apartments. Mr. Liberi stated that 750 square feet rather than 500 square feet of commercial use and a minimum of 1,200 square feet for a residence above the commercial use could resolve the problem; that a separate entrance would not be a problem if the owner operating a business on the first floor could live in a 1,200 square-foot apartment on the second floor; that separating the commercial and residential uses would not negatively impact owner-occupancy if 1,200 square feet of residential space is provided. Ms. Hafner agreed and stated that the LPNA recommended expansion of the residential space to the petitioner; that a building occupied by a tenant is preferable to an empty building at night. Commissioner Cardamone stated that a November 13, 1997, letter to Attorney Meshad from Ms. Hafner indicates the LPNA recommends expanding the square footage of the second and possibly third floors to 1,200 square feet; that the petitioner's position that eliminating the garage and building a separate outside staircase would make the property more attractive as a rental rather than an owner-occupied residence makes sense; and asked the petitioner's response to the LPNA's recommendation to increase the square footage for the upper floor. Mr. McNichol stated that the petitioner indicated the existing site plan is generic in nature; that the final floor plans could change according to the individual taste of the buyer; that the ability to add a third floor providing increased residential space was offered by the LPNA. Commissioner Cardamone stated that encouraging owner-occupancy rather than rentals in the City's older neighborhoods has been part of the City's mission; that the developer's concerns regarding construction of a separate outside staircase is understood; that eliminating an outside entrance to the second floor would make the residential component almost impossible to - rent; that the live/work units would hopefully be more suitable as homes than any other use; that the units could be marketed with a large living area on the first floor and bedrooms on the second floor; that the problems may be less onerous than perceived. Mr. Liberi stated that the petitioner did not accept the LPNA's original recommendation to make the seven proposed live/work units exclusively residential and place the total 10,000 square feet of allowable commercial space in the proposed office building on Osprey Avenue. Commissioner Cardamone stated that whether the purchasers use the upstairs space for commercial use and the downstairs space for residential use is irrelevant; that ensuring the premises are occupied, preferably by the owner, is the primary concern. Vice Mayor Dupree stated that years ago, grocers and service station owners lived above their businesses even if the residential and commercial uses were separated by different entrances; that there is no guarantee that the occupants of the residential spaces will not use that space for commercial use. Mr. McNichol stated that ensuring residency is the primary concern of the LPNA; that only a small percentage of the residential space in Towles Court is actually occupied as a residence. Mayor Pillot stated that Attorney Meshad's request to be judged on his own merits is a valid point; that the petitioner should not be judged by existing problems on a different project. Mayor Pillot continued that the commercial area open to the public during business hours will likely be used as a residential area after the close of business hours and not be exclusive from the BOOK 42 Page 15528 11/17/97 6:00 P.M. BOOK 42 Page 15529 11/17/97 6:00 P.M. living quarters; that the entire facility may be enjoyed as a residential amenity. Mr. Liberi stated that the owners can use the entire space in whatever manner chosen; however, the concept does not work due to the lack of enforcement; that residential occupancy cannot be ensured. Commissioner Cardamone asked why the residency requirement would not be enforced. Commissioner Patterson stated that enforcement is impossible. Mayor Pillot agreed and stated that a telephone call was received from a resident who had been cited because a trash receptacle from one of his rental properties was not removed from the curbside on a timely manner; that the resident offered the opinion that the City is becoming a police state; that the City should not intrude into people's living rooms at 10 p.m. to enforce a residency requirement; that enforcement may be difficult; however, the petitioner's request to not be judged by the mistakes at Towles Court is extremely valid. Commissioner Patterson stated that a residency requirement cannot be enforced by constructing an outside staircase; that live/work can be successful by making the concept sufficiently attractive to residents; that the recently developed Towles Court is the City's only experience with the live/work concept; that the long-term impact cannot yet be judged; that an owner who is in violation of the residency requirement will never be cited sufficiently to stop the violation unless a greater number of code enforcement inspectors implementing far more intrusive methods are hired; that possible negative impacts relating to the open-air dining facility have not been. expressed as a concern by the LPNA. Mr. Liberi stated that a cafe amenity in the neighborhood is not opposed; however, the open-air facility could become a problem if the occupants of the live/work units leave at the end of the day to homes elsewhere; that the LPNA did not oppose the open-air dining facility based on the belief that residency could be enforced. There was no one else signed up to speak and Mayor Pillot closed the public hearing. Attorney Meshad and Mr. Moore returned to the Commission table. Commissioner Cardamone requested clarification from Staff regarding parking use by the law firm and asked if a residency requirement in the live/work units can be enforced by proposed Ordinance No. 97-4025? Mr. Litchet returned to the Commission table and stated that excess parking at Morrill Court will be used by the law firm staff; that 12 spaces plus two handicapped spaces in excess of the parking code requirements will be provided; that the developer will be required to comply to parking requirements for each new structure when the building permits are reviewed; that the Morrill Court Project will be constructed in phases; that the infrastructure improvements and live/work units will be completed first and the commercial component developed later; that specific parking spaces must be designated for each use on the site plan; that the parking regulations will be enforced by code enforcement inspectors who can ascertain if an off-site vehicle is consistently parking all day on an abusive basis. Commissioner Cardamone asked if parking for the proposed Morrill Court Project is self-limiting due to the phased nature of the development. Mr. Litchet stated yes; that the developer must provide parking requirements for on-site uses first; that commercial developments which fail to provide sufficient parking space for the tenants are not successful. Commissioner Patterson asked if Morrill Street permits on-street parking? Attorney Meshad stated no. Commissioner Patterson stated that the existing parking for the law firm staff appears to be insufficient. Attorney Meshad stated that the law firm is located in a zone district with a zero parking requirement. Commissioner Patterson stated that a restaurant requiring 20 parking spaces may be developed within the Morrill Court Project; and asked if 20 spaces in the parking lot at the rear north side of the property would be designated for use by restaurant customers? Mr. Litchet stated that the site plan submitted by the developer would be required to specifically designate the parking spaces for the commercial uses even if the restaurant was only open in the evening; that the developer has the ability to request a parking agreement from the PBLP if two different commercial uses operate at different times, for example, parking spaces designated for office use during the day could be used to fulfill the parking requirement for a restaurant open only during the evening. BOOK 42 Page 15530 11/17/97 6:00 P.M. BOOK 42 Page 15531 11/17/97 6:00 P.M. Commissioner Patterson asked if the site plan before the Commission is the final site plan on which the parking requirements would be designated? Mr. Litchet stated that the parking requirements would be designated on a site plan filed in conjunction with the request for a building permit. Commissioner Patterson stated that code enforcement officers do not drive around parking lots to enforce the regulations; that ensuring sufficient parking uses and protection of residents' rights are the primary concerns. Attorney Meshad stated that the proposed Morrill Court Project will be developed in a manner ensuring surplus parking for the law firm; that the law firm fully recognizes that staff vehicles cannot be parked in non-surplus parking spaces; that although the ownership group would prefer the seven live/work units be sold as strictly residential use, the investment to build those structures in Laurel Park cannot be risked without the flexibility provided by the commercial component. Attorney Meshad displayed a hand-held site plan and stated that the number of live/work units was increased from five to seven and the amount of commercial space also increased due to the purchase of an additional lot at 253 Osprey Avenue; that the size of the original project was not increased on the original property but expanded to include the newly purchased property; that the Zoning Code indicates the visibility of off-street parking should be minimized with parking located to the side or rear of the building wherever possible; that the parking lot was located in the rear north side of the property to avoid parking adjacent to Morrill Street. Attorney Meshad continued that most standard, two-bedroom, two-bath apartments in the current market are approximately 1,000 square feet; that apartments in the newly constructed Marlin Lakes development project at I-75 and Fruitville Road are 1,050 square feet; that the live/work units in the proposed Morrill Court Project offer 750 square feet of residential component on the second floor and 250 square feet of residential on the first floor; that the commercial space will probably be used for residential purposes after working hours; that altering structures intended as single-family residences by constructing separate entrances to the second floor will increase the intensity. Commissioner Cardamone asked if the petitioner would be willing to agree to market three of the seven live/work units as live/work and the other four as residential only? Attorney Meshad stated that such a commitment cannot be made for economic reasonsi that the investment will be lost if the buildings cannot be sold; that a commitment was made to the LPNA that the live/work units will not be sold to anyone unwilling to sign a contract stipulating agreement to live on the premises; that all purchasers will be required to agree to the condition; that although future owners may breach the agreement, the original owner can definitely be expected to do so if an outside entrance to the second floor enabling the apartment to be leased exists from the beginning; that the owner will have no choice but to reside on-site if a second-floor entrance is not available; that a new investment will not be allowed to sit empty. Commissioner Cardamone agreed; and stated that no one would purchase the property and use only the 500 square feet of the commercial component on the first floor. Attorney Meshad stated that enforcement of residential usage is difficult; however, the petitioner is as concerned as anyone else in the neighborhood that the proposed Morrill Street Project be non-disruptive. Commissioner Cardamone asked how the residency requirement can be enforced in the live/work units? Mr. Litchet stated that a residency requirement cannot be enforced; that the petitioner has drafted an excellent set of deed restrictions and covenants; that the floor plans for the proposed Morrill Court Project are better than those offered at Towles Court; that the residency component is more enforceable than what has been available in the past; however, the seven live/work units cannot be constantly inspected to guarantee the absence of abuses. Commissioner Cardamone stated that the covenants for the neighborhood association formed by the owners of the live/work units at the proposed Morrill Court Project will require the seven units be used as live/work; that the seven neighbors will convene a board meeting one a month and can be expected to inform the City if the residency requirement is being violated by use of one or more of the live/work units for strictly commercial purposes; and asked the City's authority to enforce the covenants? Mr. Litchet stated that the code enforcement process is applicable when specific conditions in a rezoning ordinance are violated; that the Zoning Code allows such violations to be addressed by the City through court action resulting in a misdemeanor although such action has never been used to enforce that type of zoning violation; that the deed restrictions provide the City authority to enforce the covenantsi; that action in Circuit Court can be taken. Commissioner Cardamone asked if an owner of one of the live/work units in violation of the covenants could be taken before the BOOK 42 Page 15532 11/17/97 6:00 P.M. BOOK 42 Page 15533 11/17/97 6:00 P.M. Code Enforcement Special Master and be levied fines on a daily basis until the residency requirement is fulfilled. Mr. Litchet stated yes; that a code enforcement citation would be issued; that a fine would be levied daily until the commercial component in violation of the covenants is removed to the satisfaction of the Special Master. Commissioner Cardamone stated that the residency requirement could be monitored by the seven owners of the live/work units. Commissioner Patterson stated that all seven owners may use the property as 100 percent commercial use. Attorney Meshad stated that six of the seven owners could try to utilize the live/work units as strictly commercial use; however, the one remaining owner fulfilling the covenants and actually occupying the live/work unit would file a complaint against the other six; that adherence to the covenants can be expected even if only one owner is fulfilling the residency requirement. Commissioner Cardamone stated that the LPNA is also a party to the matter. Mr. Litchet stated that a code enforcement complaint does not have to be generated from within the Morrill Court neighborhood association; that anyone including a code enforcement inspector can file a complain; that the commercial component in the live/work units is required to have a fire inspection once a year; that the City has an excellent relationship with Captain Stephen Kindrick, Alarm and Code Enforcement, Sarasota County Fire Department; that building officials have the right to enter any commercial building during regular working hours for a reasonable inspection. Commissioner Patterson asked if Staff is satisfied that nothing more can be accomplished to make the proposed ordinance easier to enforce? Mr. Litchet stated yes. Commissioner Patterson stated that the sidewalk issue is still a concern; that five-foot sidewalks rather than four-foot sidewalks should be installed. Mr. Litchet stated that his understanding is the same as the petitioner's in that approval of a site plan containing a flaw such as a four-foot rather than a five-foot sidewalk as required by the City codes does not excuse the petitioner from compliance to EDCM standards. Commissioner Patterson asked if the Engineering Department will require installation of a five-foot sidewalk if such construction is feasible? Mr. Litchet stated that a letter from the Engineering Department is sent advising the petitioner that all City engineering standards must be met; that many times, a site plan with complete engineering specifications may not be ready at this stage of the development process; that the City reserves the right to impose specific design considerations before the building permit is issued. Commissioner Patterson stated that potential buyers will not invest in the seven proposed live/work units on Morrill Street for 100 percent residential use unless the sale price is extremely inexpensive; that people do not purchase a single-family house for the pleasure of looking at a parking lot; that the properties will be purchased due to the unique advantage of the live/work situation which is less expensive than paying a mortgage on a residence and a mortgage or rent on a workplace. City Attorney Taylor stated that a vote should be taken first on proposed Ordinance No. 97-4025 and then another on Special Exception 97-SE-07; that motions for both the ordinance and the special exception should include the language regarding the hours of operation for the open-air dining facility. City Auditor and Clerk Robinson entered the following documents into the record: City of Sarasota Zoning Code Sarasota City Code City of Sarasota Comprehensive Plan (Sarasota City Plan) Engineering Design Criteria Manual Standard Building Code (1994 Edition) with Appendices A, D, F, H, J & M and City of Sarasota local amendments The agenda packet and minutes of the September 4, 1997, PBLP meeting All documentary evidence submitted at the September 4, 1997, PBLP public hearing The resolution of the PBLP approving Special Exception Petition 97-SE-07 adopted September 4, 1997 Development Plan Petition 97-DPR-13 approved by the PBLP on September 4, 1997 and the application for Special Exception All exhibits submitted at the November 17, 1997, City Commission public hearing on proposed Special Exception 97-SE-07 City Manager Sollenberger stated that the Administration does not make recommendations on quasi-judicial matters. BOOK 42 Page 15534 11/17/97 6:00 P.M. BOOK 42 Page 15535 11/17/97 6:00 P.M. City Auditor and Clerk Robinson read proposed Ordinance No. 97-4025 by title only. On motion of Vice Mayor Dupree and second of Commissioner Patterson, it was moved to pass Ordinance No. 97-4025 conditioned on the stipulation that the open-air dining facility is required to be vacated one hour after the cessation of food and beverage service. Commissioner Patterson asked if the motion includes the various stipulations attached to the operation of the open-air dining facility? City Attorney Taylor stated yes. Mayor Pillot requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (4 to 0): Dupree, yes; Patterson, yes; Pillot, yes; Cardamone, yes. On motion of Commissioner Patterson and second of Vice Mayor Dupree, it was moved to approve proposed Special Exception Petition 97-SE-07, permitting a 50-seat open-air dining facility in connection with a restaurant in the CRT Zone District as part of the Morrill Court Project and conditioned on the stipulation that the outdoor dining premises are required to be vacated one hour after the cessation of food and beverage service. Commissioner Cardamone asked why approval is requested for a restaurant for which specific plans have not been developed? City Attorney Taylor stated that the petitioner would not be able to operate a restaurant at the proposed Morrill Court Project without approval of a special exception. Sarah Schenk, Attorney, City Attorney's Office, came before the Commission and stated that the seating for the proposed open-air dining facility is designated on the site plan. Commissioner Patterson asked if all stipulations attached to the operation of the open-air dining facility are included in the motion to approve Special Exception Petition 97-SE-07? City Attorney Taylor stated yes. Mayor Pillot called for a vote on the motion to approve Special Exception petition 97-SE-07 with conditions. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. 11. PUBLIC HEARING RE: PROPOSED SPECIAL EXCEPTION PETITION NO. 97-SE-14, TO PERMIT THE FOLLOWING ACCESSORY USES TO A HOTEL IN THE WFR ZONE DISTRICT; A 175 SEAT RESTAURANT AND LOUNGE, INCLUDING A 25 SEAT OUTDOOR DINING AREA, GIFT SHOP, AND RENTALS OF BEACH CHAIRS, LOUNGES, CABANAS, SAILBOATS, PADDLE BOATS, AND NON-MOTORIZED WATERCRAFT SAID PROPOSED HOTEL IS MORE SPECIFICALLY DEPICTED IN PRELIMINARY SITE AND DEVELOPMENT PLAN 97-PSD-24 AND REFERENCED IN PROPOSED ORDINANCE NO. 97-4027 ADOPTED ON FIRST READING BY THE CITY COMMISSION: THE PROPOSED SPECIAL EXCEPTION IS FOR REAL PROPERTY LOCATED ON THE WEST SIDE OF BENJAMIN FRANKLIN DRIVE, LIDO KEY, WITH A STREET ADDRESS OF 1234 AND 1314 BENJAMIN FRANKLIN DRIVE, MORE PARTICULARLY DESCRIBED IN THE SPECIAL EXCEPTION APPLICATION: ETC. - (PETITION NOS. 97-SE- 14 & 97-PSD-24, PETITIONERS STEPHEN REES, ICARD, MERRILL AND JOEL FREEDMAN, AICP, BISHOP AND ASSOCIATES. REPRESENTING THE JACOBSON GROUP - LIDO BEACH AND LAUREN GREEN AS TRUSTEE) - APPROVED WITH CONDITION STIPULATING OPEN-AIR DINING FACILITY MUST BE VACATED AT 11:59 P.M. (AGENDA ITEM IV-2) #2 (1245) through #3 (0292) Jane Robinson, Director of Planning and Development, came before the Commission, displayed on the overhead projector an illustration comparing the proposed 212-room Hilton Resort Hotel and the Radisson Lido Beach Resort, and stated that Special Exception Petition 97-SE-14 permits a 175-seat restaurant and lounge, including a 25-seat outdoor terrace area, a 600-square-root gift shop, and rentals of beach chairs, lounges, cabanas, sail boats, paddle boats, and non-motorized watercraft as an accessory use to a hotel to be located at 1234 and 1314 Benjamin Franklin Drive; that at the November 3, 1997, regular Commission meeting, the Commission requested Special Exception Petition 97-SE-14 be advertised for public hearing. Ms. Robinson continued that the Commission requested comparisons between the Radisson Lido Beach Resort and the proposed Hilton hotel relating to hours of operation and the proximity of the open-air dining facilities to other uses; that the open-air facility at the Radisson Lido Beach Resort is closer to Ben Franklin Drive and a significant distance from the closest residential structure; that the open-air dining facility at the proposed Hilton hotel will be closer to the beach area and to the Azure Tides; that the open-air dining facility at the Radisson Lido Beach Resort ceases service at 9 p.m. and is vacated completely at 11 p.m.; ; that proposed Special Exception Petition 97-SE-14 could be modified to require cessation of service at the proposed Hilton hotel at 10 p.m. and vacation of the premises at 11 p.m. Commissioner Patterson stated that the location of the Radisson Lido Beach Resort has been indicated as being more likely to disturb residences than the proposed Hilton hotel; however, the illustration indicates the Radisson Lido Beach Resort is a significant distance from the closest residential structure; that BOOK 42 Page 15536 11/17/97 6:00 P.M. BOOK 42 Page 15537 11/17/97 6:00 P.M. the proposed Hilton hotel appears to be in closer proximity to the residents of the Azure Tides. Ms. Robinson stated that the open-air dining facility at the Radisson Lido Beach Resort is a significant distance from the nearest residents. Commissioner Patterson stated that the hours of operation at the proposed Hilton hotel appear to be less stringent than those imposed on the Radisson Lido Beach Resort although both must vacate the premises at 11 p.m.; and asked why one hotel should be allowed to serve until 10 p.m. and the other required to cease service at 9 p.m.? Ms. Robinson stated that the Azure Tides is a time-sharing resort; that only one Planning Board/Local Planning Agency (PBLP) member believed the hours of operation for the proposed Hilton hotel should be further restricted; that the remaining four PBLP members voted to allow hours of operation from 7:30 a.m. to 11 p.m. Commissioner Patterson asked why the proposed Hilton hotel should be given more latitude than the Radisson Lido Beach Resort which is required to cease service at 9 p.m.? Ms. Robinson stated that the proposed Hilton hotel has a 25-seat open-air dining facility; that the Radisson Lido Beach Resort has 42 seats. Mayor Pillot stated that the open-air facility at the Radisson Lido Beach Resort is 68 percent larger than the one proposed at the Hilton hotel. Commissioner Cardamone stated that the open-air dining facility requested by the proposed Hilton hotel is smaller even though the proposed development is much larger than the Radisson Lido Beach Resort. Ms. Robinson stated that the PBLP found Special Exception Petition 97-SE-14 consistent with the Sarasota City Plan and recommended approval. City Attorney Taylor stated that the public hearing for Conditional Rezoning Ordinance No. 97-4027 approving the site plan has been closed; that this public hearing relates only to Special Exception Petition 97-SE-14. Stephen Rees, Attorney, Law Firm of Icard, Merrill, Cullis, Timm, Furen, and Ginsburg, representing Flautt, Inc., Petitioner, and Joel Freedman, AICP, Vice President, Bishop & Associates, representing the Jacobson Group-Lido Beach Limited Partnership and Lauren Greene, as Trustees, and Michael Donoghue, President of Operations for Sandcastle Resort, Inc., came before the Commission. Attorney Rees stated that the petitioner has met all requirements for the processing of the application, payment of fees, proper notice for conduct of the neighborhood, PBLP, and this Commission meetings; that Special Exception Petition 97-SE-14 includes the following accessory uses within the Waterfont, Resort (WFR) Zone District: 600-foot gift shop - 175- seat indoor restaurant and lounge - 25-seat open-air facility Rentals of beach chairs, lounges, cabanas, sail boats, sail boards, paddle boats, and non-motorized watercraft Attorney Rees stated that at the November 3, 1997, regular Commission meeting, the Commission approved Conditional Rezoning Ordinance No. 97-4027 and Preliminary Site and Development Plan 97-PSD-24 to develop a luxury resort Hilton; that the ability of the Sandcastle Resort, Inc., to provide the necessary services to the hotel's guests are a concern. Attorney Rees continued that a November 6, 1997, letter from Sarah Schenk, Attorney, City Attorney's Office, proposes conditions to the special exception and requests the petitioner proffer and accept the conditions; that all of the proposed conditions cannot be accepted; that the PBLP approved all requested special exception accessory uses with the conditions that no outdoor music is played and the hours of operation are limited to 7:30 a.m. to 11 p.m., seven days per week. Attorney Rees further stated that the following additional conditions were drafted by the City Attorney's Office as proposed by the Commission: 1) service of all food and beverages to patrons in the open-air dining facility shall cease at 11 p.m., seven days per week, and all patrons shall vacate the open-air seating no later than 11:59 p.m., seven days per week, and 2) the special exception is terminable if any condition is violated. Attorney Rees stated further that a condition with which the special exception can be terminated is unacceptable to the operator, the Hilton Hotel chain, and would be to any lender providing financing; that a luxury resort hotel exists to provide services to guests; that highly trained and extremely motivated staff observe, monitor, and ensure the conduct of guests remains within acceptable boundaries; that the petitioner cannot be placed in a position where a use is terminated as a result of a violation. Attorney Rees stated that under the Zoning Code, the WFR Zone District allows only the hours of operation of the open-air BOOK 42 Page 15538 11/17/97 6:00 P.M. ae As BOOK 42 Page 15539 11/17/97 6:00 P.M. dining facility to be established by the PBLP or the Commission as a condition to a special exception; that the Zoning Code does not provide the Commission authority to further impose a condition terminating a special exception if a violation occurs; that the petitioner objects to imposition of the proposed condition as a matter of law; that available remedies to possible violations include code enforcement provisions and the ability to seek an injunction in Circuit Court; that a terminable condition which could stop necessary services to hotel guests and result in a loss of revenues is unacceptable. Mr. Donoghue stated that Sandcastle Resort, Inc., is one of the premier resort operators in Florida and will soon be one of the largest Hilton Hotel franchise holders; that Sandcastle Resort, Inc., currently operates the Sandestin Beach Hilton, a 400-room suite hotel for which a $45 million, 200-room expansion is progressing, the 134-room Palm Beach Hilton, the 300-room Marco Beach Hilton, and the 151-room Indigo Lakes Hilton in Daytona Beach; that the size and quality of the facilities required for a luxury resort, the amount of time to train the people, the uniforms, the quality of the furnishings, the detail in construction, etc., are extremely expensive; that guests expect good, prompt, courteous service; that food and beverages are available from 7 a.m. to 11 p.m.i that sophisticated travelers spending $300 to $400 per day for a room expect certain amenities; that the Sandcastle Resort, Inc., intends to provide luxury facilities in Sarasota. Attorney Rees stated that advising hotel guests to vacate the approximately, 600-square-foot patio on a beautiful summer evening will be difficult; that the guests will be prevented from enjoying the evening, the sound of the beach, and the moon over the surf due to a regulation requiring them to vacate; that the petitioner can accept that food and beverages will not be served out on the open-air dining area after a certain hour; however, hotel guests should be able to sit on the patio area, converse, and enjoy the ambiance; that the food service and the lounge are indoors and enclosed; that the adjoining patio will have no more than 25 seats. Mr. Freedman displayed on the overhead projector a drawing of the proposed Hilton Resort Hotel and stated that the nine- to ten-foot-wide, open-air dining facility is located on the third level of the hotel, approximately 30 feet in the air and 52 feet from the Azure Tides property line; that the Azure Tides is a hotel/condominium rather than a fully residential development such as the Lido Beach Club; that the portion of the patio closest to the Lido Beach Club is tucked into a wall; that any possible noise will drift out onto the beach or to the south; that the only people who could be disrupted would be the patrons of the Azure Tides Beach Bar; that no residences will be disrupted by the operation of the open-air dining facility. Mr. Freedman continued that the circumstances surrounding the approval of the. open-air dining facility at the Radisson Lido Beach Resort may have been different in character than those relative to the proposed Hilton hotel; that the open-air dining facility at the proposed Hilton hotel is an extremely small space located on the third level of a luxury resort hotel operated by highly trained staff which will police the conduct of the guests in the same manner as at other luxury resorts owned by the Sandcastle Resort, Inc.; that the open-air dining facility should be enjoyed as an amenity at reasonable hours by hotel guests; that the provision requiring all patrons to vacate the open-air seating no later than 11:59 p.m., seven days per week should be deleted; that hotel guests should be allowed to sit on the patio overlooking the beach before retiring for the evening; that the Commission is requested to delete the conditions relating to the termination of the special exception. Mayor Pillot stated that the location of the open-air dining facility on the third level was previously unknown; and asked if the patio area will be accessed from within the building rather than by a stairway from the beach? Mr. Freedman stated that is correct. City Auditor and Clerk Robinson entered the following documents into the record: City of Sarasota Zoning Code Sarasota City Code City of Sarasota Comprehensive Plan (Sarasota City Plan) Engineering Design Criteria Manual Standard Building Code (1994 Edition) with Appendices A, D, F, H, J & M and City of Sarasota local amendments The agenda packet and minutes of the September 4, 1997, PBLP meeting All documentary evidence submitted at the September 4, 1997, PBLP public hearing The resolution of the PBLP approving Special Exception Petition 97-SE-14 adopted September 4, 1997 Development Plan Petition 97-PSD-24 approved by the PBLP on September 4, 1997 and the application for Special Exception All exhibits submitted at the November 17, 1997, City Commission public hearing Mayor Pillot opened the public hearing. The following people came before the Commission: BOOK 42 Page 15540 11/17/97 6:00 P.M. BOOK 42 Page 15541 11/17/97 6:00 P.M. Audrey Lucker, 729 Tyler Drive (34236), stated that she has lived on Lido Key since 1944; and asked if the Radisson Lido Beach Resort was granted a special-use permit revocable if the conditions are violated? City Attorney Taylor stated that no special-use permit process currently exists; that although the City's ordinances do not allow revocation of a special exception approved by the Commission, the owners of the Radisson Lido Beach Resort agreed to provide the City authority to impose the termination of the special exception if any condition were violated; that the agreement was mutually reached. Ms. Lucker stated that the Radisson Lido Beach Resort has been a marvelous neighbor; however, every hotel on Lido Key will be requesting approval of expansion proposals as soon as the proposed Hilton hotel is approved; that Lido Key will be transformed into Miami Beach; that the Radisson Lido Beach Resort and the Harley Sandcastle are already making plans to expand; that a beautiful small key is being ruined; that a hotel with a 175-seat restaurant and a 325-seat conference room will intensify traffic. Ms. Lucker continued that the size of the proposed restaurant should be reduced; that the Radisson Lido Beach Hotel provides 50 seats in the restaurant and 50 seats in the open-air dining facility; that the proposed Hilton hotel will provide 175 seats in the restaurant, 325 seats in the meeting room, and 25 seats in the open-air dining facility; that the proposed Hilton hotel will be allowed to serve until 11 p.m.; that the Radisson Lido Beach Resort stops serving at 9 p.m.; that the possibility of local residents using the proposed Hilton Hotel's dining facilities and beach accessories was never addressed by the traffic studies; that the traffic volume will increase if the hotel is able to advertise the facilities as available to the general public; that Lido Key traffic is currently approaching gridlock, particularly due to the angle parking on St. Armands Key. Beth Dilworth, 246 Garfield Drive (34236), stated that the beach accessories including non-motorized watercraft are a concern as the width of the beach is extremely limited; and requested clarification of the location where the boats will be stored. Ms. Lucker returned to the Commission table and asked why the Longboat Key Hilton Beach Resort which has been deteriorating for many years has not been properly maintained if the Hilton Hotel chain is so superb? There was no one else signed up to speak and Mayor Pillot closed the public hearing. Attorney Rees, Mr. Freedman, and Mr. Donoghue returned to the Commission table. Attorney Rees stated that the Zoning Code specifically permits the proposed Hilton Hotel to provide beach accessories which will be rented only during daylight hours and stored close to the building in the evening; that the beach chairs, lounges, and cabanas may not be removed from the hotel property while in use. Mr. Donoghue stated that the cabanas and chairs will be stored in sealed and painted crates in the evening; that one or two sailboards and perhaps one paddleboat will probably be provided; that sufficient space is available to secure the beach accessories as the proposed hotel will be set back 150 feet from the mean high-water line. Commissioner Patterson asked if the beach accessories will be stored 150 feet from the mean high-water line? Mr. Donoghue stated yes. Mayor Pillot requested clarification relating to the deteriorating condition of the Longboat Key Hilton Beach Resort as indicated by a public speaker. Attorney Rees stated that the Sandcastle Resort, Inc., does not operate the Longboat Key Hilton Beach Resort and does not wish to offer testimony disparaging to the credibility of the operation. Commissioner Patterson stated that the interior restaurant and the open-air dining facility have a combined total of 200 seats; that many residents have indicated the restaurant is far larger than necessary to serve a hotel this size and will also attract patrons who are not hotel guests. Mr. Donoghue stated that the number of people estimated to occupy a luxury resort hotel are calculated at 1.6 to 1.8 guests per occupied room; that 300 to 400 hotel guests can be expected at one time in a 200-room hotel; that 175 seats will be provided in the restaurant and 25 seats in the open-air dining facility; that 100 diners will most likely be seated at one time; that the seating in the restaurant will turn over two to two-and-a-half times per meal; that local residents are expected to patronize the restaurant. Attorney Rees stated that the dining facilities at the Holiday Inn on Lido Key provide a total of 175 seats for 140 rooms; that the Radisson Lido Beach Resort has a total of 123 seats for 116 rooms and the Harley Sandcastle has a total of 222 seats for 179 rooms. Mayor Pillot requested clarification of the conditions to the special exception. BOOK 42 Page 15542 11/17/97 6:00 P.M. BOOK 42 Page 15543 11/17/97 6:00 P.M. City Attorney Taylor stated that the proposed conditions included in the November 6, 1997, letter from Attorney Schenk were requested by the City but not formally attached to the special exception by the Commission. Mayor Pillot passed the gavel to Vice Mayor Dupree. On motion of Mayor Pillot, it was moved to approve Special Exception Petition 97-SE-14 with deletion of the following two proposed conditions: 1) termination of the special exception if any of the conditions are violated, and 2) vacation of the outdoor 25-seat open-air dining facility after 11:59 p.m.. City Attorney Taylor stated that one condition relating to the open-air dining facility has been accepted by the petitioner; that the open-air dining facility will cease all service of food and beverages to patrons at 11 p.m., seven days per week. Mayor Pillot stated that the condition regarding the hour at which food and beverage service will cease should be included in the motion as accepted by the petitioner and the City; that the motion includes all conditions recommended by the PBLP and deletes the two proposed conditions recommended at the November 3, 1997, regular Commission meeting; that the termination clause would not be imposed and although service would cease at 11 p.m., hotel guests would be allowed to remain seated on the third-floor patio. Vice Mayor Dupree stated that the motion dies for lack of a second. Commissioner Patterson stated that the proposed Hilton Resort Hotel project is supported; that an upscale hotel on Lido Key will provide a desirable amenity even though the concerns of the residents relating to overcrowding are understood; that the petitioner has justified with statistics the size of the restaurant facility; that every hotel has a gift shop; that rentals of beach chairs and loungès are a logical extension of a luxury beach resort facility; however, the sailboards, sailboats, and paddle boats are a concern; that the stipulation requiring vacation of the open-air dining facility at 11:59 should remain. Commissioner Patterson continued that the Radisson Lido Beach Resort, with a history of conducting responsible operations in the area, agreed to proffer conditions relating to termination of the special exception and the hour at which the open-air dining facility will be vacated; that the Sandcastle Resort, Inc., which has no proven record in the Sarasota area, can return to the Commission and request approval for the beach accessories in the future; that requesting the last few patrons seated on the open-air patio to move indoors at 11:59 p.m. does not seem an onerous requirement; that the special exception will be supported if the two stipulations are included. Mayor Pillot requested clarification regarding the termination clause. Commissioner Patterson stated that the Radisson Lido Beach Resort proffered the termination clause; that the City Attorney has advised the City's authority to impose such a termination clause is questionable at this time; that the petitioner would have to be willing to make the proffer; that the petitioner's opposition to agreeing to a termination clause is understood; that a third-floor, open-air dining facility is not foreseen as a problem to anyone; that the City has no ability to require a petitioner to proffer a condition which is not yet law. Vice Mayor Dupree stated that the beach açcessories are a concern; however, a luxury resort on Lido Key is desirable; that the petitioner has gone to great lengths to meet all requirements; that the Hilton Resort Hotel project is supported. City Manager Sollenberger stated that the Administration does not make recommendations on quasi-judicial matters. On motion of Commissioner Cardamone and second of Mayor Pillot, it was moved to approve proposed Special Exception Petition 97-SE-14, including the following accessory uses and conditions to a hotel in the WFR Zone district: 175-seat restaurant and lounge, and a 25-seat outdoor dining area; 600-square-foot gift shop; and Rentals of beach chairs, lounges, cabanas, sailboats, paddle boats, and non-motorized watercraft No outdoor music The hours of operation limited to 7:30 a.m. to 11 p.m., 7 days per week, with the stipulation that all service of food and beverages will cease at 11 p.m. and the premises be completely vacated at 11:59 p.m. Commissioner Patterson stated that she supports the motion with the exception of the rentals of sailboats, sailboards and other non-motorized watercraft; that the beach accessories could be requested in the future if the operations of the hotel are successful and do not pose a nuisance to the residents. Commissioner Cardamone stated that rentals of watercraft would cease if unsuccessful; that adding accessory uses to a special exception after approval is difficult; that the proposed hotel will be located on a beautiful stretch of beach and water lacking such activity; that a hotel operator would not be expected to have a fleet of small day-use sailboats which must be rigged, carried to the water's edge, unrigged at night, and carried back BOOK 42 Page 15544 11/17/97 6:00 P.M. BOOK 42 Page 15545 11/17/97 6:00 P.M. 150 feet from the beach; that the PBLP's recommendation is supported. Commissioner Patterson stated that businesses located off the beach rent sailboats and windsurfers on Siesta Key. Commissioner Cardamone stated that is a different operation. Commissioner Patterson stated that residents from throughout the area could go to Lido Beach and rent a sailboat; that Lido Key residents do not wish anything on the beach extraneous to the hotel; that the beach accessories sound amenable; however, an additional business will be established; that several sailboats could be stored on the beach all day as the petitioner's property extends to the mean high-water line. Mayor Pillot stated that the petitioner indicated only a few watercraft will be available; that the primary income will be generated by the hotel rooms, the restaurant, and lounge; that a manager would probably not display the beach accessories which could be vandalized or stolen by passers-by adjacent to the mean high-water line. On motion of Commissioner Patterson and second of Vice Mayor Dupree, it was moved to amend the motion to restrict the number of watercraft to three sailboats, three sailboards, and three paddleboats. Commissioner Cardamone stated that residents of the Lido Beach Club who use the beach more than anyone else are aware of the special exception conditions including beach accessories and have been totally supportive of the hotel. Mayor Pillot called for a vote on the amendment. Motion failed (2 to 2): Cardamone, no; Dupree, yes; Patterson, yes; Pillot, no. Mayor Pillot called for a vote on the motion to approve proposed Special Exception Petition 97-SE-14, and include the following accessory uses and conditions to a hotel in the WFR Zone district: 175-seat restaurant and lounge, and a 25-seat outdoor dining area; 600-square-foot gift shop; Rentals of beach chairs, lounges, cabanas, sailboats, paddle boats, and non-motorized watercraft; No outdoor music; and The hours of operation limited to 7:30 a.m. to 11 p.m., seven days per week, with the stipulation that all service of food and beverages at the open-air dining facility will cease at 11 p.m. and the premises be completely vacated at 11:59 p.m. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. 12. PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 97-4026, TO VACATE A PORTION OF THE FOLLOWING STREETS TO PROVIDE ADDITIONAL PARKING FOR THE HUMAN SERVICES CENTER: A PORTION OF 13TH STREET BETWEEN GOODRICH AND ORANGE AVENUE; A PORTION OF GOODRICH AVENUE BETWEEN 15TH AND 16TH STREET; A PORTION OF 16TH STREET RUNNING EASTERLY FROM GOODRICH AVENUE FOR 326 FEET M.O.L.: MORE PARTICULARLY DESCRIBED HEREIN; ETC. (TITLE ONLY) (PETITION NO. 97-SV-04, PETITIONER CITY OF SARASOTA) - PASSED ON FIRST READING (AGENDA ITEM IV-3) #3 (0304) through (0449) Jane Robinson, Director of Planning and Development, and Alexandrea Hay, Assistant City Engineer, came before the Commission. Ms. Robinson displayed a street map on the overhead projector and stated that this is a City-initiated petition to vacate Goodrich Avenue from 15th to 16th Street, 16th Street from Goodrich Avenue for 326 feet to the east, and 13th Street from Orange Avenue to Goodrich Avenue; that Dr. Kay Glasser, Chairman of the Schoenbaum Human Services Center of Sarasota, Inc., has requested the City vacate a portion of 16th Street; that a decision was made to proceed with vacating Goodrich Avenue from 15th to 16th and 13th Streets from Orange Avenue; that the Planning Board/Local Planning Agency (PBLP) has recommended approval of proposed Street Vacation Petition No. 97-SV-04 based on the Engineering Department's statement and finding that the street was of no benefit to the City and the public for thoroughfare purposes, and subject to stipulations stated in the June 17, 1997, letter from Alexandrea Hay, Assistant City Engineer, to George Ray, owner of the Orange Avenue Mobile Home Park, that no interference with Florida Power and Light (FPL) overhead electric facilities along Goodrich Avenue would occur; that the easement requested by GTE or remuneration for relocation of GTE facilities should be honored by the petitioner. Ms. Hay stated that the 16th Street right-of-way will be vacated to the City and added to the Schoenbaum Human Services Center leasehold; that Goodrich Avenue will be vacated and become the property of Orange Avenue Mobile Home Park, the adjacent property owner; that 13th Street will be vacated and the vacated portions transferred to the adjacent property owners. Commissioner Patterson asked if Staff is satisfied that the right-of-way will never be of any use to the City. BOOK 42 Page 15546 11/17/97 6:00 P.M. BOOK 42 Page 15547 11/17/97 6:00 P.M. Ms. Hay stated yes. City Manager Sollenberger stated that this street vacation has taken many years to implement; that the City became involved with the vacation to enable incorporation of the right-of way vacated on 16th Street into a lease agreement with the Schoenbaum Human Services Center which requires expansion of parking space. Mayor Pillot asked if the City is the petitioner? City Manager Sollenberger stated yes. Mayor Pillot opened the public hearing. There was no one signed up to speak and Mayor Pillot closed the public hearing. City Manager Sollenberger stated yes; that the Administration recommends passing Ordinance No. 97-4026 on first reading. On motion of Commissioner Patterson and second of Commissioner Cardamone, it was moved to pass proposed Ordinance No. 97-4026 on first reading. Mayor Pillot requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (4 to 0): Patterson, yes; Pillot, yes; Cardamone, yes; Dupree, yes; 13. SCHEDULED PRESENATION RE: CURRENT STATUS OF THE RINGLING BRIDGE ISSUE - APPROVED RECOMMENDATIONS TO FILE A PRELIMINARY INJUNCTION IN FEDERAL COURT TO HALT THE PROPOSED PROJECT PENDING COMPLETION OF AN ADEQUATE ENVIRONMENTAL IMPACT STATEMENT, P INITIATE ADMINISTRATIVE CHALLENGE CONTESTING THE LEGALITY OF FDOT'S DECISION TO CONSTRUCT A 65-FOOT HIGH-LEVEL, FIXED-SPAN BRIDGE, AND PROVIDE LEGAL FEES TO ATTORNEY LEVIN (AGENDA ITEM V) #3 (0450) through (1512) On motion of Commissioner Cardamone and second of Vice Mayor Dupree, it was moved to waive the time limit for the scheduled presentation. Motion carried unanimously (4 to 0): : Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. David Levin, Law Firm of Icard, Merrill, Cullis, Timm, Furen, and Ginsburg, came before the Commission and stated that the search for documents providing the basis of the decision by the Florida Department of Transportation (FDOT) to build a 65-foot, high-level bridge in Sarasota has led to Tallahassee, Miami and Bartow; that the challenge lodged against the Anna Maria bridge case was conducted in the State administrative arena; that the Second District Court of Appeal (DCA) upheld the Florida Department of Environmental Protection (DEP) denial of the environmental permit of that bridge. Attorney Levin displayed on the overhead projector excerpts from various State regulations and the Code of Federal Regulations (CFR) containing the National Environmental Policy Act (NEPA) and stated that the NEPA ensures the greatest degree of protection is given to the environment and that decisions affecting the environment are made only after environmental impacts are researched; that public officials are required to take action to protect, restore, and enhance the environment. Attorney Levin stated that the Council on Environmental Quality (CEQ) developed regulations implementing the NEPA; that the FDOT requires mandatory compliance with the NEPA for proposed transportation improvements when one of the following conditions exists: Federal funds or assistance will be used at some phase of project development; or Federal permits are required. Attorney Levin stated that both conditions apply to the Ringling Causeway Bridge Replacement project; that the following definitions are excerpted from the NEPA: Effects Attorney Levin stated that effects and impacts are synonymous and include ecological, aesthetic, historic, cultural, economic, social, or health effects, whether direct, indirect, or cumulative; that the FDOT is required to consider effects when conducting an NEPA evaluation. Human environment Attorney Levin stated that human environment includes the natural and physical environment and the relationship of people with that environment; that the effects of a project on the social and cultural environment must be evaluated. Attorney Levin continued that three classes of action can be taken under the NEPA: Categorical Exclusion an exemption from an Environmental Impact Statement (EIS) requested when actions are not expected to significantly impact the human environment. Environmental Assessment prepared when the significance of an environmental impact is not clearly established. BOOK 42 Page 15548 11/17/97 6:00 P.M. BOOK 42 Page 15549 11/17/97 6:00 P.M. Environmental Impact Statement (EIS) prepared for actions that significantly affect the human environment as defined by the Council on Environmental Quality (CEQ) regulations. Attorney Levin referred to an organizational chart indicating the work flow established to complete a project and stated that determining eligibility for a Categorical Exclusion is the first step when a project is proposed; that no Federal involvement is required if a project is determined exempt as a Categorical Exclusion and not subject to an EIS or Environmental Assessment, the development of which would be required for projects expected to impact the environment. Attorney Levin referred to a table of contents entitled "Content Items in Draft Environmental Impact Statements" developed in 1994; and stated that the contents include criteria for preparation of an EIS; that socioeconomic consequences, community services, wetlands, and water quality are included in the list of criteria; that a report must be presented advising decision-makers of the impact the proposed project is expected to make on each criteria. Attorney Levin referred to the FDOT's Environmental Determination Form and stated that the form was submitted by the FDOT to the Federal Highway Administration (FHA) in February 1994; that the FHA required information as to whether the Ringling Causeway Bridge Replacement would require an Environmental Assessment or EIS or could be exempted from both as a Categorical Exclusion; that the FHA was advised by the FDOT that the Ringling Causeway Bridge Replacement qualified as a Categorical Exclusion, a project with no significant impact to the environment. Attorney Levin referred to an Impact Evaluation checklist prepared in 1994 and stated that the checklist was developed by the FDOT to justify exempting the proposed Ringling Causeway Bridge Replacement as a Categorical Exclusion not requiring an EIS; that the headings of the four columns in the checklist containing criteria to be rated are entitled "Significant," "Minimal, I "None, 1 and "No Involvement"; that the potential environmental impacts by the Ringling Causeway Bridge Replacement were rated in the following manner: Controversy Potential Impacts Attorney Levin stated that the FDOT rated the Controversy Potential as minimal to avoid the EIS requirement. Attorney Levin referred to the following excerpt from a Draft Ringling Response Letter from the FDOT faxed to Dennis Daughters, Director of Engineering/City Engineer, on July 22, 1997: "As you know, the Ringling Bridge Replacement project has been controversial from the moment the FDOT first initiated the project development study in 1991." Commissioner Cardamone requested the following third paragraph of the draft letter be read: "All of these efforts have failed to develop a clear consensus on a design for the replacement of the aging John Ringling bridge structure. Opinions are strongly polarized, some staunchly supportive of a high-level concept, others highly opposed." Attorney Levin stated that the language obviously indicates the controversial nature of the proposed bridge project; that a July 7, 1997, document prepared as a briefing document for the newly appointed David Twiddy, District One Secretary, FDOT, contains the following opinion relating to the Anna Maria Bridge, the Ringling Bridge, and the Cortez Bridge: "All three bridge projects have been highly controversial." Attorney Levin referred to a January 3, 1994, memorandum from Chuck Wood, Design Project Coordinator, FDOT, to W.F. Lovell, Professional Services Administrator, FDOT, requesting the Request for Supplemental Services for a bridge amenities package be given a high priority due to the nature and political sensitivity of the project; that the memorandum indicates the Request addresses the Scope of Supplemental Services, Supplemental Agreement No. One for consultants' services and that the bridge structure is expected to significantly impact the Sarasota Bayfront; that the validity of rating the Controversy Potential as minimal is questionable. Water Quality Impacts Attorney Levin referred again to the Impact Evaluation checklist and stated that the FDOT rated Water Quality impacts by the proposed high-level, fixed-span bridge as minimal; that a supplemental document submitted with the 1994 Impact Evaluation checklist to bolster the FDOT Request for Action regarding the Categorical Exclusion indicates the southern portion of Sarasota Bay between New Pass and Big Pass is designated as an Outstanding Florida Water (OFW) included in the National Estuary Program (NEP); that reference is made to a DEP analysis indicating the water quality within the project area is good; that the following statement is included in the supplemental document accompanying the Impact Evaluation checklist prepared for the FHA: "The proposed Ringling Causeway Bridge improvement will increase the impervious roadway area draining to Sarasota Bay .This increase in impervious area and traffic volume BOOK 42 Page 15550 11/17/97 6:00 P.M. BOOK 42 Page 15551 11/17/97 6:00 P.M. may increase pollutant constituents, primarily particulates and metals (copper, lead, and zinc)." Attorney Levin stated that the supplemental document indicates runoff from the bridge will be discharged directly to Sarasota Bay via bridge scupper drains (holes in the bridge) ; that the document also presents preliminary discussions with the Southwest Florida Water Management District (SWFWMD) as determining water quality treatment is not required for the entire impervious area of the new bridge since the proposed bridge is replacing an existing bridge. Attorney Levin stated that the 1994 Preliminary Drainage Report prepared by the FDOT indicates the bridge is anticipated to provide scuppers from the 400-foot point from each end of the bridge toward the center but not over the shipping channel; that stormwater on the last 400 feet as well as the approaches will be collected in inlets and culverts and conveyed to the stormwater cOllect/treatment ponds on each end of the bridge; that on February 3, 1993, SWFWMD sent a letter to Greiner, Inc., the FDOT design consultant, prior to the 1994 Preliminary Drainage Report, prior to the 1994 Request for Action regarding the Categorical Exclusion, and prior to the statement made by the FDOT to the FHA; that the FDOT claimed exemption from developing stormwater treatment on the basis of SWFWMD's purported acceptance of the incline replacement of the bridge; that the February 3, 1993, letter from SWFWMD to Greiner, Inc., indicates the proposed construction is not an in-kind bridge replacement and would not be exempt from Management and Storage of Stormwater (MSSW) permitting requirements. Attorney Levin referred to an April 26, 1994, letter from SWFWMD to Ann Venables, Environmental Coordinator, FDOT, which advised the following: "Runoff from the existing Ringling Causeway Bridge discharges directly to Sarasota Bay via curb-cut outlets; however, the proposed bridge construction should minimize the direct discharge to Sarasota Bay, i.e., runoff from scuppers should be directed towards an upland retention pond to provide treatment." Attorney Levin referred to minutes of an October 3, 1997, FDOT meeting addressing the status of environmental tasks and stated that environmental tasks should have been addressed prior to the conclusion of the PD&E process and completion of the Request for Action regarding the Categorical Exclusion; that the meeting minutes indicate the FDOT needed to determine the available existing data and the research required to collect additional data; that an October 22, 1997, fax from Scheda Ecological Associates, Inc., to Bill Junkin and Chuck Wood, FDOT, indicates a need to ascertain existing baseline water quality and the effect of the proposed bridge on baseline water quality. Attorney Levin continued that the FDOT indicated on the Request for Action regarding the Categorical Exclusion submitted to the FHA in 1994 that the water quality impact would be minimal; however, the water quality impacts were unknown not only in 1994 but as late as October 1997; that the assertion of minimal impact on Water Quality is further questionable if stormwater pollutants would be discharged from the roadway of the proposed bridge directly into the Bay without treatment in violation of SWFWMD regulations. Navigation Impacts Attorney Levin referred again to the 1994 Impact Evaluation checklist and the rating of no impact given to Navigation and stated that the FHA was informed that construction of a high-level, fixed-span bridge would have no impact on navigation; that in the Request for Action regarding the Categorical Exclusion, the FDOT indicates the following: "A vessel height survey was conducted specifically for this project, the results of which are summarized in the Bridge Project Questionnaire, submitted to the U.S. Coast Guard." Attorney Levin stated that a draft of the Bridge Project Questionnaire indicates the FDOT's intention to advise the FHA and the United States (U.S.) Coast Guard that the mast height of the highest vessel currently using the waterway was 74 feet; that the FDOT indicated in the final version of the Bridge Project Questionnaire submitted to the FHA and the Coast Guard that during a 1993 vessel height survey, the mast height of the tallest measured vessel passing through the existing bridge was 67 feet above the waterline; that the tallest known vessel in the area was a sailboat with a mast height of approximately 80 feet. Attorney Levin continued that an October 20, 1997, memorandum was provided by Greiner, Inc., to Bryan Williams, Environmental Manager, FDOT, most likely in response to the City's questions regarding the proposed high-level, fixed-span bridge; that the memorandum indicates the 1993 vessel height survey defined the percent of reduction in bridge openings relative to a 35-foot, 45-foot, and 55-foot bascule span; that Greiner, Inc., advised the existing data should be supplemented to include the number of vessels requiring a clearance requirement of greater than 65 feet; that Greiner, Inc., also advised the impact of a 65-foot, high-level bridge was not addressed by the 1993 survey; that the greatest boat traffic occurs generally in April or May; however, the 1993 survey was conducted during three weeks in January; that the design consultant has proposed an additional survey to determine the impact of a 65-foot, high-level bridge on navigation; that the date of the recommendation was October 1997. BOOK 42 Page 15552 11/17/97 6:00 P.M. BOOK 42 Page 15553 11/17/97 6:00 P.M. Attorney Levin further stated that the memorandum from Greiner, Inc., summarizing the results of the 1993 vessel height survey, indicates the clearance requirement for several area boats is greater than 65 feet which is not consistent with the rating of no-impact on navigation provided by the FDOT in the Impact Evaluation checklist; that the Coast Guard will not issue a permit for the proposed 65-foot, high-level bridge due to the number of local vessels with mast heights over 65 feet, a fact known by the FDOT in 1993. Attorney Levin continued that the public hearing notice, distributed at the November 22, 1993, MPO public hearing, includes the following synopsis of Alternative E3, the proposed 65-foot, high-level bridge: "This alternative consists of a new high-level, fixed-span bridge located along the north side of the existing structure providing a vertical clearance of 65 feet above the intercoastal waterway.. Alternative E3 provides a 100-percent reduction in the number of bridge openings for vessels, allowing continuous uninterrupted traffic flow for both vehicles and vessels." Attorney Levin stated that although the FDOT knew vessel traffic flow would be interrupted by a 65-foot high-level bridge, the FHA was advised in the Request for Action regarding the Categorical Exclusion that this project would have no impact on navigation, an assertion made to avoid having to develop an Environmental Impact Statement (EIS). - U.S. Coast Guard Permitting Actions Attorney Levin stated that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated the FDOT is moving forward to develop design plans for a 65-foot, high-level bridge based on analysis showing such a design as appropriate; that the evidence gathered in the 1993 vessel height survey is contradictory to Mr. Twiddy's statement; that the number of vessels with mast heights exceeding 65 feet clearly shows the inappropriateness of a 65-foot, high-level bridge; that Mr. Twiddy also asserted the FDOT did not consult the Coast Guard due to a Coast Guard policy opposed to commenting on bridge height or clearance until an application for a permit is submitted by the FDOT; that Mr. Twiddy also indicated the Coast Guard process made him uncomfortable. Attorney Levin continued that a July 17, 1980, letter from J.R. Kretschmer, Bridge Administrator, U.S. Coast Guard, to C.L. Irwin, Administrator, Environmental Impact Review, FDOT, indicates the Coast Guard met with the FDOT and discussed navigational clearance issues relating to a proposed bridge across the St. Johns River in Jacksonville; that a December 2, 1980, letter from C.M. Montanese, Lieutenant Commander, U.S. Coast Guard, to Mr. Irwin, advises the FDOT of the following conclusion: "Although our investigation has not been completed, the following clearances are submitted for use in preliminary planning: a fixed bridge at this location should provide between 90 and 110 feet over mean high water." Attorney Levin stated that the December 1980 letter also references the alternatives of a 45-foot or 65-foot bascule bridge; that an April 5, 1988, letter to John Winslow, Bridge Administrator, U.S. Coast Guard, contains the application for approval of the location and plans of a 75-foot, high-level bridge across the St. Johns River; that the discussions between the FDOT and the Coast Guard relating to navigational clearance standards occurred eight years before the actual application to construct the Jacksonville bridge was submitted. Mayor Pillot asked if the information relating to discussions eight years in advance of the Coast Guard permitting process for the Jacksonville bridge was available to Mr. Twiddy? Attorney Levin stated that the following two documents are revealing; that a February 4, 1991, letter from Thomas White, Structural Department Manager, David Volkert & Associates, the FDOT consultant, to Mr. Winslow, expresses appreciation for the willingness of the Coast Guard to meet with the FDOT regarding the vertical clearance issue for the Clearwater Pass Bridge; that a February 4, 1991, memorandum from Mr. White to Mr. Winslow acknowledges that although an application to permit a 65-foot vertical clearance bridge would be rejected, a Coast Guard permit for a higher-level, fixed-span bridge was a possibility; that the permit application to the Coast Guard for the Clearwater Pass Bridge was submitted after the February 1991 meeting which was attended by current District One Secretary Twiddy. Attorney Levin continued that agencies such as the Coast Guard are extremely willing to discuss pertinent issues such as vertical clearance in advance of the permitting process; that the Coast Guard may not be willing to commit to a particular design; however, the parameters for engineering standards will be provided; that no one would spend hundreds of thousands or millions of dollars on any project without knowing the probability of receiving a permit. Commissioner Patterson requested clarification of the second paragraph in the summary of the February 1991 meeting relating to the accessibility of any nearby pass in the Clearwater area which could serve as an alternative to the proposed Clearwater Pass Bridge. BOOK 42 Page 15554 11/17/97 6:00 P.M. BOOK 42 Page 15555 11/17/97 6:00 P.M. Attorney Levin stated that at the February 4, 1991 meeting, the Coast Guard and the FDOT had discussed the possibility of permitting the originally proposed 65-foot, high-level bridge if passes close to the Clearwater Pass such as the Dunedin, Hurricane, or John's Passes were open and accessible; that New Pass must frequently be maintained and is often not passable as a result of storms; that New Pass would not be considered a viable alternate route to the Intercoastal Waterway; that the Coast Guard would have considered the other local passes in the Clearwater area as available escape routes if those waterways could have been maintained open and accessible. Commissioner Patterson asked if the Venice Jetties would be too far away? Attorney Levin stated yes; that the FDOT indicated on the 1994 Impact Evaluation checklist that the proposed 65-foot, high-level bridge would not impact navigation and, therefore, qualified for a Categorical Exclusion requiring no EIS; that the assertion is absurd; that the limited data gathered by the FDOT during the 1993 vessel height survey proved that several boats in excess of 75 feet traveled under the existing Ringling Causeway Bridge; that the FDOT also indicated knowledge of a local boat with an 80-foot mast height; that the appropriateness of a 75-foot, high-level bridge has not been established; that an 80-foot or higher-level bridge may be required; that in 1994, the FDOT knew that a 75-foot, high-level bridge may be required. Western Touchdown Point Relating to Bird Key Drive Attorney Levin stated that Mr. Twiddy developed a written response to questions prepared by the City and presented at the October 14, 1997, Commission workshop; that Mr. Twiddy provided the following response to the question relating to the location of the touchdown point for a 75-foot, high-level bridge with a five-percent grade: "Using a five-percent grade on the Bird Key side of the bridge, the touchdown point would have to be extended westward approximately to the center of the Bird Key intersection. I Attorney Levin referred to a map on which the touchdown point of a 75-foot, high-level bridge is indicated and stated that the touchdown point based on the FDOT's own position well-known to Mr. Twiddy at the time the written response was developed is substantially west of the center line of Bird Key Drive; that the exact number of feet past the entrance to Bird Key is not known; however, an impact on Bird Key Drive would definitely occur if the geometry of the proposed bridge is changed; that an impact may be avoided if the grade is increased from five to six and one half percent; however, the FDOT made a commitment to the FHA to maintain the five-percent grade required to comply with the Americans with Disabilities Act (ADA). Commissioner Cardamone stated that at the October 14, 1997, Commission workshop, Commissioner Merrill specifically asked Mr. Twiddy to clarify how the grade and touchdown point of the proposed 65-foot, high-level bridge could be maintained if a higher-level bridge is built. Attorney Levin stated that Mr. Twiddy indicated a 10-foot increase in height could be addressed easily; however, a 10-foot increase will add substantially to the existing proposed touchdown point if 20 feet of run is required for every foot of rise. Commissioner Patterson stated that the elevation at Bird Key Drive is indicated in the map at two and a half feet. Mayor Pillot stated that the map indicates the distance from the touchdown point to Station 41 + 00.997 as 305 meters or approximately 1,000 feet; that the measurements are assumed as indicated in meters; that the bridge elevation at Bird Key Drive appears to be eight feet; that the distance from Bird Key Drive to the touchdown point appears to be approximately 150 feet; that the distance of the touchdown point from the existing entrance to Bird Key Drive is significant. Attorney Levin stated that the FDOT has not investigated the impact of a 75-foot or greater, high-level bridge on Bird Keyi that the following are some of the ramifications of a change in the bridge height: Increase in impervious area and increase in stormwater runoff Attorney Levin stated that the impervious surface area and the amount of stormwater runoff are expected to increase if a higher-level bridge is built. Increased gas usage due to longer acceleration to reach the top of the bridge Attorney Levin stated that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated the public would save gas with a higher-level bridge which is not closed to through vessel traffic; that the amount of gas required to accelerate up a five- percent grade was not considered; that more gas will be consumed by increased acceleration over a higher-level bridge. Increased visual and noise impacts BOOK 42 Page 15556 11/17/97 6:00 P.M. BOOK 42 Page 15557 11/17/97 6:00 P.M. Reduction in area available for stormwater treatment facilities Attorney Levin stated that existing design plans call only for capturing the stormwater runoff from the last 400 feet on either side of the 2,000-foot long bridge; that space on either side of the bridge approaches will be required to provide stormwater treatment facilities if the runoff from the remainder of the proposed bridge is treated as required by SWFWMD. - Increased impact to public parkland, i.e., 4(f) lands Attorney Levin stated that the impacts to the parkland will be increased by a higher-level bridge; that Federal 4 (f) requirements prohibit the taking of public parkland for a transportation improvement unless absolutely no other feasible alternative exists; that many feasible alternatives exist. Increased impact to access to Bird Key and Bird Key Park Attorney Levin stated that the analysis required to provide the necessary information has not been performed due to the lack of an Environmental Impact Statement (EIS); that at the November 22, 1993, MPO meeting, the FDOT misrepresented to the MPO and the public that the proposed 65-foot, high-level bridge would not impede vessel traffic; that the FDOT has avoided doing the necessary work to determine water quality impacts, navigational impacts, and social impacts by submitting to the FHA misinformation on which the Categorical Exclusion was obtained. Recommended Action Preliminary injunction in Federal Court to halt the proposed project pending completion of an adequate Environmental Impact Statement (EIS). Attorney Levin stated that preparation of an EIS will answer many questions; that the FDOT will be forced by a Federal Court injunction to actually do the work necessary to identify environmental, social, cultural, and aesthetic environmental impacts required under EIS regulations. Attorney Levin referred to the following sections of the Florida Statutes: Section 339.155(6) (b) : The FDOT shall hold one or more hearings prior to the selection of the facility to be provided.. and prior to the selection of and commitment to a specific design proposal for the proposed facility. Such public hearings shall be conducted sO as to provide effective participation by interested persons. Attorney stated that the Anna Maria bridge case was based on a preponderance of evidence proving that the FDOT had selected and committed to a high-level, fixed-span bridge design long before the October 1993 public hearing; that the Federal Judge decided the public's opportunity for effective participation had been denied; that the violation of the Florida Statute alone sufficed as a basis for concluding the FDOT's ensuing design decision was arbitrary, illegal, and an abuse of discretion; that this portion of the Anna Maria bridge case has not been challenged or rejected by the FDOT. Attorney Levin continued that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated that although the FDOT starts PD&E studies believing a replacement is necessary, a final decision is not in place; that an April 16, 1991, memorandum from Robert Anthony, Engineering Project Manager, PD&E, FDOT, was sent to design consultants invited to a pre-scope meeting regarding the criteria for the proposed Ringling Causeway Bridge Replacement; that the memorandum states: "This project is described in the IMS Database as a High-level Bridge Replacement over the Intercoastal Waterway." Deferment of Repairs Attorney Levin stated that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated the existing bridge was studied and a determination made supporting replacement as the best option; that a decision was made to defer major repairs unless safety was concerned; that an analogy was made to an automobile in that major repairs are not made after a decision is reached to purchase a new vehicle; that the decision to replace the existing bridge theoretically was made at the November 22, 1993, MPO hearing; however, the following excerpt is from a January 2, 1992, memorandum from F.M. Johnson, FDOT, regarding pile jackets for the existing Ringling Causeway Bridge: "The pilings were given a thorough inspection... .the noted deficient piling should not be jacketed as previously recommended due to the fact that this structure has been adopted for replacement in 1995/96." Attorney Levin stated that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated the decision whether or not to replace a bridge is made before major repairs are deferred, a statement rendered untrue by the January 2, 1992 memorandum. Attorney Levin continued that in April 1992, 18 months before the November 22, 1993, MPO public hearing, à Traffic Technical BOOK 42 Page 15558 11/17/97 6:00 P.M. BOOK 42 Page 15559 11/17/97 6:00 P.M. Memorandum, Project Traffic and Intersection Analysis Report was developed; that the following language is included under Project Description: ". .The new structure will require replacing the existing bascule structure with a high-rise, non-moveable structure in either of two alternate alignments." Scope of Services for Consultants Attorney Levin stated that at the October 14, 1997, Commission workshop, Mr. Twiddy indicated the Scope of Services prepared at the end of 1993 as presented to the design consultants indicated a replacement bridge rather than a rehabilitation as the worst-case scenario; however, the City was told a bascule bridge would be the worst-case scenario as a bascule bridge would be more difficult to design; that Mr. Twiddy's meaning is not absolutely clear. Attorney Levin continued that an April 1, 1993, memorandum from Mark Jennings, Greiner, Inc., to Nancy Bright, P.E., the FDOT, identified two preferred alternatives; that page 2 of the memorandum identifies Alternative E3 as the 65-foot, high-level bridge which, according to the memorandum, allows continuous uninterrupted flow of vehicle and vessel traffic; that page 4 of the memorandum indicates Alternative E3 and the No-Build Alternative should be carried forward as the only two alternatives qualified for additional detailed studies and development. Attorney Levin continued that despite the inclusion of the No-Build Alternative in the Scope of Services, the September 24, 1993, contract between the FDOT and Kunde, Sprecher & Associates, Inc., the design consultants, executed prior to the November 22, 1993, MPO public hearing, indicates the minimum vertical clearance at the main channel shall not be less than 65 feet above mean high-water elevation; that the financial commitment to design a 65-foot, high-level bridge was made prior to the November 22, 1993, MPO public hearing. Recommended Action Initiate administrative challenge pursuant to Chapter 120, Florida Statutes contesting the legality of the FDOT's decision to construct a 65-foot, high-level, fixed-span span bridge. The basis of the challenge is the FDOT's abuse of discretion by arbitrarily selecting the type, location, and design of the proposed project, and failure to comply with mandates of State law as relating to said decision, both procedurally and substantively. Attorney Levin stated that FDOT did not provide to the public the opportunity to consider all the alternatives; that the City is recommended to file an administrative challenge similar to the one filed in the Anna Maria bridge case; that evidence would be presented to show the decision to construct a high-level, fixed-span bridge was made prior to the first public hearing on the matter and that no substantial basis for the decision exists; that no vessel height survey, water quality analysis, or any of the other factors necessary to make an informed decision were adequately addressed; that the FDOT's decision in violation of State law should be reconsidered. Mayor Pillot stated that an element of unrealism surrounds the information presented. Attorney Levin stated that only a small percentage of the available materials supporting the recommended position have been presented this evening. Vice Mayor Dupree requested clarification of the recommendation to file a preliminary injunction for an Environmental Impact Statement (EIS). Attorney Levin stated that the FDOT convinced the FHA to approve the Categorical Exclusion; that the Federal government approved the request for a Categorical Exclusion, thereby exempting FDOT from fulfilling an EIS; however, the approval was based on misinformation regarding impacts; that the appropriate type of bridge for Sarasota Bay will be determined only if the FDOT is required by the Federal Court to develop an EIS. Commissioner Cardamone stated that designating the Ringling Causeway Bridge as non-controversial on the Impact Evaluation checklist should be sufficient evidence; that the proposed bridge project has been controversial since Mayor Jack Gurney appointed a task force to review the project. Mayor Pillot stated that honest disagreement is respected; however, the record presented this evening indicates that FDOT's representatives have been dissembling and disingenuous. Attorney Levin stated that to spend hundreds of thousands dollars on consultant fees to prepare a superficial report presented to prove compliance with the law is obscene. Commissioner Patterson requested clarification of procedure if the injunction by the Federal Court is granted. Attorney Levin stated that the planning process for the Ringling Causeway Bridge Replacement project will be halted by a BOOK 42 Page 15560 11/17/97 6:00 P.M. BOOK 42 Page 15561 11/17/97 6:00 P.M. preliminary injunction against the FDOT; that Mr. Twiddy's written response to the city's prepared questions indicate the permitting process is proceeding forward; that a great deal of money will be expended to design and permit a 65-foot, high-level bridge which cannot be built in the current location; that he does not advocate building a bridge higher than 65 feet; that vessel height and navigational flow are not the only issues; that environmental and aesthetic impacts are sufficient to prevent building a 75-foot or higher-level bridge; that the injunction will stop any further expenditures on plans for a 65-foot, high-level bridge and require the FDOT to conduct an EIS; that inclusion of public participation will ensure design of a bridge fulfilling the needs of the community; that the FDOT will be forced to comply with NEPA; that the injunction will not prevent them from building a bridge; however, nothing can be constructed until an EIS has been prepared. Commissioner Patterson stated that a letter has been received from the Mayor of Venice indicating the Venice City Commission will support the Sarasota City Commission in a home-rule issue; that the Venice City Commission has taken the position that a facility such as a bridge within the boundaries of the City should be determined by the will of the City Commission and not by the MPO; that the MPO representative from the Venice City Commission will support the Sarasota City Commission at the MPO; that months ago, the City Manager recommended Commission visits to other Commissions to request similar support; and asked if such visits are recommended? Attorney Levin stated that the FDOT would be required to give a great deal of weight to a decision by the MPO to support the City; that the MPO should be informed that the data presented at the November 22, 1993, MPO public hearing was inaccurate. Commissioner Patterson stated that the Anna Maria bridge project remains in the FDOT work plan. Attorney Levin stated that is correct; that the FDOT believes the issues which caused them to lose the court judgment in the Anna Maria bridge case can be addressed; however, the FDOT is mistaken by believing another version of the proposed 65-foot, high-level bridge will be accepted. Mayor Pillot stated that the second recommendation to file an administrative challenge to contest the legality of the bridge may be an even stronger measure than a Federal injunction. Attorney Levin stated that both remedies should be pursued concurrently; that an injunction cannot be requested in an administrative challenge; that an injunction may be granted by the Circuit Court; however, a recommendation to pursue a civil remedy will not be made at this time. Mayor Pillot asked if the FDOT would be required to immediately comply if the request for an injunction from the Federal Court in Tampa and the administrative challenge are successful? Attorney Levin stated that the preliminary injunction would probably be issued prior to the determination by the administrative judge as to the legality of the proposed bridge project; that the bridge project would probably be stopped until completion of an EIS; that simultaneously, the State's entire decision-making process would be attacked and required to begin anew; that although similarities exist between actions taken on the State and Federal levels, the State requirements are broader than the simple requirement of an EIS; that the EIS would be only the first stage in the review of the proposed high-level, fixed span bridge; that the study of additional factors such as navigational, social, and aesthetic impacts would be required by the State. Mayor Pillot stated that the ability to build a 65-foot, high-level bridge apparently does not exist due to vessel height issues; that a bridge higher than 65 feet could not be built due to environmental impacts; and asked if the plans to build a high-level, fixed bridge will be terminated if the recommendations for action are approved? Attorney Levin stated that a high-level, fixed-span bridge would not be built if the FDOT is required to adhere to regulations addressing impacts; that a 65-foot, high-level bridge was originally considered in New Smyrna Beach; that the touchdown point of the proposed bridge impacted too heavily on the beach; that the FDOT position changed and a 35-foot bascule bridge has been constructed; that other bascule bridges have been constructed in Florida where a high-level, fixed-span bridge was not possible or practical; that existing evidence proves construction of a high-level, fixed-span bridge over Sarasota Bay is physically impractical and legally inappropriate. Mayor Pillot asked if a bascule bridge would be the most appropriate structure to build in Sarasota Bay? Attorney Levin stated yes. City Manager Sollenberger asked the estimated cost to follow the course of action recommended and the time involved in the processes for the administrative challenge and completion of an EIS? Attorney Levin stated that the process for the administrative challenge is estimated at six months; that preparation of an EIS would take at least one year; that the costs of litigation were BOOK 42 Page 15562 11/17/97 6:00 P.M. BOOK 42 Page 15563 11/17/97 6:00 P.M. estimated at approximately $200,000 by the City Attorney's Office; that further research will be required before a definitive answer can be provided, but the potential exists under Federal law to recover attorney's fees; that the City has a strong case, which could be deferred to the City Attorney, to pursue reimbursement of the $200,000 charette fee promised by FDOT; that the evidence is clear and substantial documentation has been compiled to suggest that FDOT has used the benefits of the charette process in the design of proposed 65-foot-high replacement bridge. Commissioner Patterson asked if the $200,000 cost estimated for litigation includes the cost for services provided to date and those which would be provided from now until the start of litigation or if the total cost for services would exceed $200,000? Attorney Levin stated that the total cost for services would probably be in excess of $200,000; that initially, $300,000 was discussed as an upper limit; however, providing an exact dollar amount at this time, before the challenge begins, is difficult. Commissioner. Patterson asked if the City is being billed on an hourly rate with the bills submitted to the City Attorney? Attorney Levin stated yes. Mayor Pillot stated that the proposed 65-foot-high bridge will be built if the City does nothing, unless another agency with authority pursues a challenge. Attorney Levin stated that FDOT will build the bridge if the City does not proceed as no other agency will pursue the issue; that the Coast Guard will not pursue an independent investigation of the navigational impacts absent a formal objection and will accept the data presented by FDOT as accurate. Mayor Pillot stated that based on the documentation reviewed and presented during Attorney Levin's two reports, the legality, practicality, and environmental concerns are such that the City should attempt to stop the construction of a 65-foot or higher- level bridge; that an expenditure of the cost and time estimated to pursue the issue would be resources well spent if the City prevails; that the two actions recommended by Attorney Levin are supported. Mayor Pillot asked for comment by the Administration. City Attorney Taylor stated that the recommended actions were heard for the first time tonight; that based on the documentation presented, he would agree the City has a strong case for an administrative challenge; that comment regarding the likelihood of success in achieving a preliminary injunction on the Federal level, with which he is less familiar, is deferred to Attorney Levin, who was hired for that expertise. city Attorney Taylor continued that the questions raised by City Manager Sollenberger are valid; that Attorney Levin should submit a cost estimate in writing with realistic time frames for the processes outlined; that the recommended actions, if approved and the city prevails in the challenge, will result in the initiation of a new bridge planning process; that $75,000 has been expended on legal services to date; that the City has no guarantees as to what a $200,000 plus expenditure will be buying; however, lack of action will result in the construction of a high-level, fixed- span bridge. City Attorney Taylor asked if additional environmental challenges would be possible following the outcome of the actions recommended if the ultimate selection of the bridge is viewed as of no benefit to the community? Attorney Levin stated that the opportunity would exist to challenge the State environmental permit and stormwater permit or a combined environmental resource permit if the City did not prevail in the administrative challenge or on the preliminary injunction; that challenges to both the environmental permit and the planning decision were filed in the Anna Maria bridge case because the timing was appropriate; however, delaying action in the Ringling Bridge case until the environmental permits become an issue is not suggested as hundreds of thousands of dollars would be expended by the State in the interim; that the administrative challenge presented at the State level will include a challenge to the environmental review performed by the FDOT to date and demonstrate that adequate work has not been performed to justify FDOT's decision; that proceeding on the basis recommended rather than waiting to file a challenge to an environmental resources permit is a more strategic position to ensure victory. City Attorney Taylor stated that a favorable ruling on one or both of the challenges recommended will initiate a new process in which FDOT will follow the law; that, hopefully, a project desired by the community will result; however, the City could incur greater expense if additional challenges are pursued in the future. Commissioner Patterson asked if the legal costs incurred in the Anna Maria bridge case were similar to those estimated for the Ringling Bridge case? Attorney Levin stated yes; that, initially, a citizens group requested representation on a preliminary basis; however, based on the facts uncovered in the preliminary review and the BOOK 42 Page 15564 11/17/97 6:00 P.M. BOOK 42 Page 15565 11/17/97 6:00 P.M. potential for victory, the Law Firm of Icard, Merrill, Cullis, Timm, Furen & Ginsburg represented Save Anna Maria, Inc., on somewhat of a pro bono basis; that payments were and continue to be made as best as possible; that payments approximating $50,000 to $60,000 have been received to date. Commissioner Patterson stated that she is not prepared to vote in favor of the actions recommended with the legal fees open ended; that a cost estimate should be prepared and presented outlining the time frames, the hourly rate, and the legal fees for the various stages, etc. Mayor Pillot stated that pursing the recommended actions is viewed as appropriate; that time is an issue; that the cost may be substantial but having Attorney Levin return with an estimated cost will not influence his vote. Commissioner Patterson stated that the hourly rate should be reported; that whether the work is being performed by attorneys or paralegals is not known; that pursuing the recommended actions could be supported but providing an open-ended expenditure for legal services would not be a responsible act; that similar concerns have been expressed by the City Manager and City Attorney; that the item could be brought back on a future agenda with more details. Commissioner Cardamone stated that FDOT will proceed with building the proposed 65-foot-high bridge if the City sits idle; that Mr. Twiddy, when questioned during a recent Commission workshop, indicated the planning process would not start over if the Coast Guard denied a permit for the 65-foot, high-level bridge and recommended a 75- or 85-foot, high-level bridge but that the bridge would just be built at the height recommended by the Coast Guard. Commissioner Cardamone requested details on the process followed for clarification of the Anna Maria bridge case. Attorney Levin stated that the case initially presented by Save Anna Maria, Inc., was an administrative challenge to FDOT's planning decision; that since FDOT had applied to DEP for a permit, the planning challenge was held in abeyance pending a decision; that the DEP granted permit approval; that a challenge to the environmental permit was filed; that both challenges were heard during the administrative hearing; that the judge issued separate opinions on the two components of the case; that the recommended order on the environmental challenge was forwarded for consideration to the Secretary of the DEP, who upheld the recommendation to deny the DEP permit; that FDOT appealed the denial to the DCA; that the DCA recently issued a decision to uphold denial of the DEP permit; that the recommended order on the planning process challenge was submitted to the FDOT for consideration in 1996; that under State law, the Secretary of the agency is required to consider, accept, and/or reject with modifications the recommended order of the judge; that FDOT has violated the statute requiring a final order and, based on internal memoranda reviewed, intends to continue to violate the statute as issuing a final order would conflict with their plans regarding the Anna Maria bridge; that FDOT's specific plans regarding the Anna Maria bridge are not known. Commissioner Patterson stated that the FDOT's intent regarding the Anna Maria bridge was made clear at a recent MPO meeting; that FDOT is planning to proceed with the project previously proposed, which is still scheduled in the work program. Attorney Levin stated that the FDOT cannot lawfully proceed with the previously proposed bridge without obtaining the DEP permit and without issuing a final order on the planning process component. Commissioner Cardamone asked if a preliminary injunction was granted in the Anna Maria bridge case? Attorney Levin stated no; that a preliminary injunction was not pursued in the Anna Maria bridge case. Commissioner Cardamone asked if a preliminary injunction would prevent FDOT from continuing with the design, engineering, etc.? Ve Attorney Levin stated yes; that FDOT would be required to start the EIS process before proceeding with any other process. Commissioner Cardamone stated that the planning process and public review of various bridge alternatives would start over if the City were successful in achieving a preliminary injunction in Federal Court. Attorney Levin stated that the planning process would start over with a specified, mandated plan, determined by Federal law, for studies required to ascertain the appropriate type of bridge be built. Commissioner Patterson stated that the issues raised include exploring the height of the bridge, which may result in a height greater than currently proposed, and environmental considerations of runoff disposal and impacts to Bird. Key Park. Attorney Levin stated that seagrass impacts, which have not been discussed, are also an issue; that the DEP has suggested a narrower bridge to limit the impacts on seagrass; that the environmental considerations would be the same for a bridge with any additional height; that a higher bridge would cast a longer BOOK 42 Page 15566 11/17/97 6:00 P.M. BOOK 42 Page 15567 11/17/97 6:00 P.M. shadow across the seagrass; that a lower bridge would cause less impacts to seagrass in the vicinity of the project. Commissioner Patterson stated that the gasoline expended by vehicles in climbing a higher bridge has been raised as an issue; however, gasoline expended while motors idle on the existing bridge has also been raised as an issue. Attorney Levin stated that the gasoline issue is raised as a counterpoint to FDOT's point that money is saved by vehicles not idling as a result of drawbridge openings; that FDOT conducted an air pollution study in 1994; that a local consultant identified the need for FDOT to consider the environmental effects of vehicles accelerating on the approach to the bridge as well as the effects of vehicles idling on the bridge; that FDOT did not address the acceleration issue; that the EIS would require a balanced review of the impacts. Attorney Levin continued that aesthetic and cultural issues are also relevant; that, for example, one of the issues used in the Anna Maria bridge case was that the proposed high-level bridge destroyed the character of the island community. Mayor Pillot asked if a delay to the next meeting would affect the estimates on legal fees and time frames for the processes submitted? Attorney Levin stated no; that in accordance with the current fee schedule, the City is billed $150 per hour for his time and $125 for an associate's time; that the fees would remain the same. Commissioner Patterson stated that the Commission has not received a fee schedule or been apprised of current billings; and asked the legal fees accrued and the time expended on the case to date? Attorney Levin stated that invoices have been submitted through the City Attorney's Office; that the $75,000 authorized for the research work, cumulatively, has or will be billed for legal services performed to date. Commissioner Patterson stated that approximately 500 hours have been billed if $75,000 in legal fees have been incurred. Attorney Levin stated that he has been working almost full time on the Ringling Bridge case; that the thoroughness presented in his reports should give the Commission an indication of the extensive amount of time necessary to prepare a strong case. - Mayor Pillot asked if the Administration has any reason to recommend the Commission * not proceed with the recommended actions, cost notwithstanding? City Manager Sollenberger stated no; that the Commission has no guarantee the City will prevail; however, a 65-foot or higher bridge is essentially guaranteed if the Commission does not proceed. City Attorney Taylor agreed; and stated that Commissioner Merrill, who is not present tonight, had contacted the City Attorney's Office inquiring as to the status of the Ringling Bridge case and the benefits which could be expected from continuing with litigation; that Commissioner Merrill was anxious to receive information on the work accomplished to date and that which would ultimately be accomplished for the initial sum authorized; that Attorney Levin's presentation had not been scheduled at the time of the inquiry. Commissioner Cardamone requested further comment regarding potential recovery of legal fees and the fees expended by the City for the design charette. Attorney Levin stated that the NEPA does not include an attorney fees provision; however, attorney fees have been recovered in certain Federal cases brought to challenge the lack of an EIS; that the opportunity to recover attorney fees may be available through the Equal Access to Justice Act; that further research is necessary to determine the City's chances of recovering attorney fees. Attorney Levin continued that basic contracts law indicates a remedy should be available in terms of repayment for the design charette; that Mr. Twiddy' told the Commission the FDOT used the benefit of the charette process in the design of the proposed bridge; that the City Attorney's Office is experienced in contract law and could provide more definitive information. Commissioner Cardamone stated that the information received from Attorney Levin has been informative; that the Commission initiated this process and should support the recommended actions put forth; that an estimated cost presented in two weeks will not change her position. On motion of Commissioner Cardamone and second of Mayor Pillot, it was moved to accept the recommended actions and to provide the funds necessary for Attorney Levin to proceed as efficiently and cost effectively as possible. Vice Mayor Dupree stated that recovery of the charette expense and attorney fees should be pursued; and asked if the preliminary injunction would prevent the FDOT from obtaining required permits? BOOK 42 Page 15568 11/17/97 6:00 P.M. BOOK 42 Page 15569 11/17/97 6:00 P.M. Attorney Levin stated that based on case law reviewed, a preliminary injunction would prevent FDOT from moving forward and expending any additional funds for the permitting, design, etc., of the bridge, until an appropriate EIS is prepared; that preparation of the EIS took approximately one year for the Clearwater Pass Bridge. Commissioner Patterson stated that the total expenditure for the Ringling Bridge matter will be approximately $500,000: $200,000 for the charette and $300,000 for legal fees, recovery of which may not be realistic but hopefully can be achieved; that the process is expensive; that the City is not guaranteed success in the challenges; that she would feel more comfortable knowing the Commission was pursing the real will of the community; that the motion will be supported; however, detailed updates on the status of the litigation and the accumulation of legal fees should be reported to the Commission at least bimonthly. Commissioner Cardamone stated that the community is divided; that the public anticipated a 65-foot-high bridge; however, the bridge proposed was designed with a 65-foot-high clearance and a road bed 74 feet above the water; that a bridge with a 75-foot-high clearance will have a road bed 84 feet above the water; that an 80-foot-high clearance will have a road bed extremely high above the water; that proponents of a high-level bridge may not support a bridge design with a road bed 89-feet above the water; that the position of Bird Key residents who previously supported the high- level bridge could change based on the modified landing points which would extend 150 feet beyond the existing intersection and impact not only five or six homes but most of the homes on Bird Key; that the length of the approach required would also impede access to Bird Key Park; that the community may no longer be as divided as they once were. Commissioner Cardamone continued that Alternative R for the complete rehabilitation of the existing structure and construction of a two-lane bridge immediately adjacent to the rehabilitated structure, if originally presented by the FDOT, may have been viewed an acceptable compromise to those residents concerned with being stuck on the drawbridge bridge during a mechanical dysfunction. Commissioner Patterson moved to amend the motion to include pursuing as rapidly as possible visits to other elected officials in the surrounding jurisdictions in an attempt to change the vote at the MPO. Mayor Pillot stated that the language could be added to the motion with consent of the seconder, Commissioner Cardamone. Commissioner Cardamone asked if the City's legal position in State or Federal Court. would be jeopardized if support is solicited, a change in the MPO vote is requested, but the MPO vote is not overturned? Attorney Levin stated no; that the Commission is encouraged to solicit support from the surrounding jurisdictions; that shortening the length of the lawsuit would be in the best interest of the public. Commissioner Cardamone asked the effect if the MPO were to relinquish support for the 65-foot, high-level bridge? Attorney Levin stated that in Anna Maria bridge case the FDOT stated they were bound by the position of the MPO, which was in favor of a fixed-span bridge; that the legal correctness of the statement was not researched; however, City attempts to change the MPO vote would be worthwhile; that, hopefully, the FDOT would respect a change in the MPO's position. Mayor Pillot stated that the City would have nothing to lose but something to gain. Attorney Levin stated that is correct. Commissioner Cardamone, as seconder to the motion, stated that the amended language is accepted as part of the motion. Mayor Pillot stated that the recommended actions are as follows: Initiate an administrative challenge pursuant to Chapter 120, Florida Statutes, contesting the legality of FDOT's decision to construct a 65-foot- high fixed-span bridge Pursue a preliminary injunction in Federal Court to halt the proposed project pending completion of an adequate Environmental Impact Statement Mayor Pillot called for a vote on the motion restated as to accept the recommended actions, and to expedite visitation by the City Commission to other relevant governmental agencies represented on the MPO. Motion carried unanimously (4 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes. Mayor Pillot stated that' a motion to extend the meeting past 11:30 would be appropriate at this time. On motion of Commissioner Cardamone it was moved to extend the meeting to complete the Agenda. Motion died for lack of a second. Mayor Pillot stated that the Commission is meeting as the Community Development Agency (CRA) on Wednesday, November 19, 1997; that a special meeting could be called to complete the BOOK 42 Page 15570 11/17/97 6:00 P.M. BOOK 42 Page 15571 11/17/97 6:00 P.M. Agenda at that time; and asked if any matters require action prior to that date? City Manager Sollenberger stated no. Commissioner Cardamone stated that many citizens have been waiting in the audience for an opportunity to address the Commission regarding some of the remaining items. On motion of Commissioner Patterson and second of Commissioner Cardamone, it was moved to extend the meeting to complete Unfinished Business, Item VII-1, only. Motion carried (3 to 1) : Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, no. 14. UNFINISHED BUSINESS: CONTINUED DISCUSSION RE: SPECIAL EXCEPTION NO. 97-SE-10 TO PERMIT THE EXPANSION OF AN EXISTING HOUSE OF WORSHIP (ST. ARMANDS KEY LUTHERAN CHURCH) IN A RESIDENTIAL SINGLE FAMILY (RSF-2) ZONE DISTRICT ON THE PARCEL APPROXIMATELY 2.28 ACRES, LOCATED AT THE NORTHWEST CORNER OF JOHN RINGLING BOULEVARD AND NORTH ADAMS DRIVE - AFFIRMED THE PBLP RESOLUTION APPROVING SPECIAL EXCEPTION PETITION NO. 97-SE-10, INCORPORATING THE CONDITION PROFFERED BY THE PETITIONER PERTAINING TO STORMWATER DRAINAGE (AGENDA ITEM VII-1) #4 (1595) through (2750) City Manager Sollenberger stated that action on Petition No. 97-SE- 10 was postponed at the November 3, 1997, regular Commission meeting pending a report back regarding stormwater requirements. Dennis Daughters, Director of Engineering/City Engineer, and William Hallisey, Acting Director of Public Works, came before the Commission. Mr. Daughters stated over the past two weeks substantial data has been researched and reviewed; and briefly summarized the findings set forth in a memorandum report to the City Commission dated November 14, 1997. Mr. Daughters stated that rainfall data was obtained from six sources; that the worst storm event in Sarasota County in the last six years was on June 25 and 26, 1992; that the various rain gauges researched showed the intensity at approximately 9.5 inches during 24 hours, which is slightly below the 25-year/24-hour design storm event amount of 10.0 inches; that the tides during the June 1992 storm, which ranged from +0.39 to +2.42 feet above sea level, definitely impacted the stormwater drainage system on St. Armands Key; that tides ranged from -0.3 to +2.2 I during a recent storm event on November 13 and 14, 1997; that the 24-hour rainfall registered 5.1 inches at the Sarasota-Bradenton International Airport and 9.54 inches at the Channel 40 news station site; that rainfall data from Mote Marine Laboratory, Inc., which uses an automatic recording device, was not available for 1992, and the rainfall data for the more recent storm could not be obtained. Mr. Daughters continued that structural flooding was reviewed; that letters were received from six homeowners, some of which indicated flooding had occurred on St. Armands Key; that records were obtained from the Federal Emergency Management Agency (FEMA) indicating two homes downstream from the St. Armands Key Lutheran Church flooded on June 25 and 26, 1992; that the homes which flooded had low floor elevations compared to current-day standards; that whether the flooding resulted from wakes caused by vehicles traveling through the area could not be determined. Mr. Daughters further stated that the working condition of the pump station located at the southwest corner of North Washington Drive and Madison Drive was reviewed; that the pump station has been on line during the rainy season since 1992; that Public Works Department records indicate the pump station was operating during the storm of June 1992; that necessary maintenance of the pump station is performed during the dry season. Mr. Daughters stated further that the following conclusions were reached as a result of Staff analysis: 1. Structure flooding in this quadrant of St. Armands Key has not been solely caused by rainfall from January 1, 1992, to date. 2. Structure flooding in * this quadrant of St. Armands Key can be solely caused by strong winds coupled with an unusually high tide. 3. Structure flooding in this quadrant of St. Armands Key can be and apparently has been caused by a combination of an unusually high tide and a moderate to small rainfall. Mr. Daughters stated that in the opinion of the Engineering Department, tidal influences were intentionally not included when the Level of Service (LOS) standard for stormwater concurrency was determined; that the City Attorney has advised stormwater concurrency, as defined under Rule 9J-5.003, Florida Administrative Code, is based solely on the flow of water resulting from a rainfall event; that the Engineering Department can declare that the proposed Church expansion project will meet stormwater concurrency since 1) stormwater concurrency is based solely on criteria in a 25-year rainfall event, 2) the rainfall in the June 1992 storm approached that of a 25-year rainfall event, and 3) an unusually high tide occurred during the June 1992 storm event. Commissioner Patterson asked if the documentation received by the Commission from the St. Armands Residents Association, which BOOK 42 Page 15572 11/17/97 6:00 P.M. BOOK 42 Page 15573 11/17/97 6:00 P.M. includes letters from AM Engineering, Inc., and William R. Davis, P.E., has been reviewed? Mr. Daughters stated yes. Commissioner Patterson asked why the standards for stormwater and transportation concurrency differ with respect to level of service? Mr. Daughters stated that concurrency regulations for utilities and for transportation differ in both the City Codes and in the State Statutes; that the Engineering Department's interpretation that the existing stormwater LOS "C" cannot be exceeded is based on the wording in the Sarasota City Plan which states: "The drainage system shall provide adequate capacity to maintain LOS "C" using a 25-year/24-hour design storm event to ensure adequate and safe stormwater management systems." Commissioner Patterson asked if all construction would be prohibited in the subject quadrant of St. Armands Key if a LOS "D" were identified? Mr. Daughters stated that single-family dwellings, duplexes, and development of 1,500 foot or less are exempt from the stormwater concurrency regulations. Commissioner Patterson stated that the Engineering Department has repeatedly stated the proposed project will not worsen flooding or increase drainage problems in the area; and asked if those statements have referred to a lowering in the LOS or literally that drainage will not be worsened in the area? Mr. Daughters stated that the project as designed will improve the current drainage situation but will not improve conditions sufficiently to change the LOS from "D" to "C" Commissioner Patterson stated that the Code provision should be examined. City Attorney Taylor stated that the quasi-judicial public hearing on this matter was held before the Planning Board/Local Planning Agency (PBLP); therefore, the documentation dated November 17, 1997, from the St. Armands Residents Association is not part of the record on which the Commission should be basing a decision. Commissioner Patterson declared ex parte communications, stating that she has had substantial input from the public on both sides of the issue. Mayor Pillot declared ex parte communications, stating that the documentation received from the St. Armands Residents Association has been read and discussions on the issue may have been held with members of the public. Commissioner Cardamone declared ex parte communications, stating that documentation received from the St. Armands Residents Association has been read; that discussions on the issue have been held with members of the public; that setting Petition No. 97-SE-10 for public hearing may be appropriate. Deputy City Auditor and Clerk McGowan stated that the following motion is pending from the November 3, 1997, regular City Commission meeting: to affirm PBLP approval of Special Exception Petition 97-SE-10, which includes the stipulation that the structure at 25 North Washington Drive be returned to a residential use upon the City's granting of a Certificate of Occupancy. City Attorney Taylor stated that the petitioner has proffered the following in letter to the Engineering Department dated October 24, 1997: The stormwater management system shall be designed to control additional stormwater runoff from the site created by the development sO that the post- development rate of stormwater runoff from the site shall be less than the pre-development rate. The stormwater management system shall be designed in such a manner that the subject property will have the capacity to detain on-site for up to 36 hours, 8,350 cubic feet of stormwater originating on the site, and an additional 19,362 cubic feet of stormwater originating off the site. On motion of Commissioner Cardamone, it was moved to substitute the main motion with a motion to set Petition No. 97-SE-10 for public hearing before the Commission. Motion died for lack of a second. On motion of Commissioner Patterson and second of Vice Mayor Dupree, it was moved to amend the motion to include accepting and making the proffer put forth by the petitioner pertaining to stormwater drainage a condition of approval. Motion carried (3 to 1): Cardamone, no; Dupree, yes; Patterson, yes; Pillot, yes. Commissioner Patterson stated that stormwater drainage is a technical issue; that the Commission is forced to rely on the expertise of the Administration; that she hopes the City Engineer is correct and drainage will not be worsened by the proposed project; that the Engineering Staff previously stated a building permit will not be issued if the project does not meet the BOOK 42 Page 15574 11/17/97 6:00 P.M. BOOK 42 Page 15575 11/17/97 6:00 P.M. Engineering Design Criteria Manual requirements for drainage; and asked if the project would have to meet the proffered condition in order to receive a building permit if the motion as amended passes? Mr. Daughters stated yes; that based on the design criteria proffered and review of the preliminary plans, the Engineering Staff feels confident stormwater concurrency can be met on the property, the current runoff rate will be reduced, and the project will not worsen the drainage situation; that the drainage situation may worsen in the quadrant as a result of construction of an exempted property but not as a result of the proposed project. Vice Mayor Dupree stated that he is encouraged by the unanimous vote taken by the PBLP and the confidence shown by Engineering Staff; that the motion will be supported. Mayor Pillot called for a vote on the main motion restated as to affirm the PBLP resolution approving Special Exception Petition No. 97-SE-10, subject to the site plan as submitted and a stipulation that the structure at 25 North Washington Drive be returned to residential use upon the City of Sarasota's granting à Certificate of Occupancy for the new facility, incorporating the condition proffered by the petitioner pertaining to stormwater drainage. Motion carried (3 to 1): Cardamone, noi Dupree, yes; Patterson, yes; Pillot, yes. 15. ADJOURN (AGENDA ITEM XII) #4 (2752) There being no further business, Mayor Pillot adjourned the regular meeting of November 17, 1997, at 11:55 p.m. M GENE PILLOT, MAYOR OTA: ATTESTS Leu BILLYE: 01 ROBINSON, CITY AUDITOR AND CLERK a 9 0