BOOK 37 Page 11397 02/06/95 6:00 P.M. MINUTES OF THE REGULAR SARASOTA CITY COMMISSION MEETING OF FEBRUARY 6, 1995, AT 6:00 P.M. PRESENT: Mayor Nora Patterson, Vice Mayor David Merrill, Commissioners Fredd Atkins, Mollie Cardamone and Gene Pillot, City Manager David Sollenberger, City Auditor and Clerk Billy Robinson, and City Attorney Richard Taylor ABSENT: None PRESIDING: Mayor Nora Patterson The meeting was called to order in accordance with Article III, Section 9 of the Charter of the City of Sarasota at 6:00 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. 1. PRESENTATION RE: EMPLOYEE OF THE YEAR = 1994, CLEO AMMONS, WELDER, NIASE, EQUIPMENT MAINTENANCE DIVISION, PUBLIC WORKS DEPARTMENT #1 (0022) through (0200) Duane Mountain, Streets, Landscape Maintenance & Solid Waste Manager, and Cleo Ammons, Welder, Public Works Department came before the Commission. Mr. Mountain introduced Cleo Ammons and stated that he was chosen as the 1994 Employee of the Year for his unique performance in serving with excellence and pride for more than fifteen years; that his quality work, positive attitude, and congeniality toward other employees helped him earn the Employee of the Month award in December 1994; that those same qualities placed him out front when the votes for Employee of the Year were tallied; that Mr. Ammons volunteers to participate on committees, problem-solving teams, and new projects in the work place as well as volunteering his time to organizations in the community such as the Food Bank, Big Brothers Big Sisters, and his school-aged children's Parent-Teacher organization (PTO); that serving with excellence and pride is not a requirement of the job for Cleo, but a way of life. Mr. Mountain congratulated Cleo Ammons on being selected Employee of the Year for 1994. Mayor Patterson stated that it is a privilege for her to represent the entire City through the Commission, and presented Cleo Ammons with a watch engraved Cleo Ammons, Employee of the Year 1994, City of Sarasota, and a plague. Mayor Patterson requested that Mr. Ammons' family members who were present in the audience stand and be recognized. Mr. Ammons introduced the nine family members present. 2. PRESENTATION RE: CITY PROCLAMATION FOR NATIONAL ENGINEERS WEEK, FEBRUARY 19-25, 1995 TO MILLARD YODER, MYAKKA CHAPTER OF THE FLORIDA ENGINEERING SOCIETY AND DENNIS DAUGHTERS, CITY ENGINEER #1 (0200) through (0250) Millard Yoder, Myakka Chapter of the Florida Engineering Society; and Dennis Daughters, Director of Engineering/City Engineer, came before the Commission. Mayor Patterson read in its entirety the city Proclamation for National Engineers Week, February 19-25, 1995, and presented Mr. Yoder with the proclamation. Mr. Yoder stated that the local Chapter appreciates the City's recognition. 3. CHANGES TO THE ORDERS OF THE DAY - APPROVED #1 (0250) through (0350) Mayor Patterson requested that the Unfinished Business Item relating to placing an item in regard to the John Ringling Causeway Bridge on the City Election ballot for all three districts be moved forward and addressed prior to the Public Hearings scheduled for 6:30 p.m. Commissioner Atkins asked if the interested parties related to the John Ringling Causeway Bridge issue had been notified of the Mayor's intent to hear the item earlier? Mayor Patterson stated that the interested parties of whom she was aware were notified. City Auditor and Clerk Robinson presented the following additional Changes to the Orders of the Day: A. Remove under Consent Agenda No. 1, Item III A-I, Approval Re: 1994-95 Calendar of Budget Meetings per the request of City Manager Sollenberger B. Move forward to be addressed immediately following Approval of the Minutes, Unfinished Business, Agenda Item VII-1, Adoption Re: Proposed Resolution No. 95R-800, calling for a referendum of the qualified electors of the City for the purpose of making a non-binding deter- mination as to whether the Florida Department of Transportation should replace the existing John Ringling BOOK 37 Page 11398 02/06/95 6:00 P.M. BOOK 37 Page 11399 02/06/95 6:00 P.M. Causeway Bridge (S.R. 789) with a new high level fixed- span bridge at a height of 65 feet above the water or implement other bridge alternatives; scheduling said referendum for March 14, 1995; specifying the referendum question; etc. On motion of Commissioner Pillot, and second of Commissioner Atkins, it was moved to approve the Changes to the Orders of the Day. 4. APPROVAL OF MINUTES: MINUTES OF THE REGULAR CITY COMMISSION MEETING OF JANUARY 17, 1995 - APPROVED (AGENDA ITEM I) #1 (0350) through (0355) Mayor Patterson asked if the Commission had any changes to the minutes. Hearing no changes, Mayor Patterson stated that the minutes of the regular City Commission meeting of January 17, 1995, were approved by unanimous consent. 5. UNFINISHED BUSINESS: ADOPTION RE: PROPOSED RESOLUTION NO. 95R-800, CALLING FOR A REFERENDUM OF THE QUALIFIED ELECTORS OF THE CITY FOR THE PURPOSE OF MAKING A NON-BINDING DETERMINATION AS TO WHETHER THE FLORIDA DEPARTMENT OF TRANSPORTATION SHOULD REPLACE THE EXISTING JOHN RINGLING CAUSEWAY BRIDGE (S.R. 789) WITH A NEW HIGH LEVEL FIXED-SPAN BRIDGE AT A HEIGHT OF 65 FEET ABOVE THE WATER OR IMPLEMENT OTHER BRIDGE ALTERNATIVES: SCHEDULING SAID REFERENDUM FOR MARCH 14, 1995; SPECIFYING THE REFERENDUM OUESTION; ETC. (TITLE ONLY) - MOTION TO ADOPT FAILED (AGENDA ITEM VII-1) #2 (0359) through (0990) Mayor Patterson stated that the Administration has provided the Commission with three alternatives from which to choose; and asked the Commissioners to voice their positions. Commissioner Pillot asked for the cost associated with placing a referendum on the ballot in District #3. City Auditor and Clerk Robinson stated that District #3 has seven precincts; that the cost for placement of the referendum on a ballot is approximately $800 per precinct; therefore, the total cost would be approximately $5,600. Commissioner Cardamone asked if that cost assumes minimal poll workers at each poll location? City Auditor and Clerk Robinson stated that is correct. Commissioner Pillot stated that he will vote against placing a referendum on the ballot since he does not support the $5,600 cost; that the referendum is non-binding and will not be of significant value; that the issue has reached the point where the City of Sarasota, including the opinions of its citizens and Commission, will not have much effect, if any on the Florida Department of Transportation. Commissioner Pillot continued that although it is not mechanically feasible, he feels if a referendum vote on this issue were to be taken, the opinions of people outside the City who will also be affected by the bridge should be included. Commissioner Atkins stated that the referendum would be a waste of time; that a referendum would have no effect on the determination made by FDOT regarding the bridge; that the State has previously shown that the Commission's opinion was not valued by ignoring the previous actions taken by the Sarasota City Commission; that the City has received no support from Sarasota County or its State Legislators on this issue; that the process is fruitless, and the $5,600 should not be funded. Mayor Patterson stated that she supports placing the question, in its simplest form, on the ballot to ask the electors whether they support a 65-foot high bridge; that an organization is requesting that the Commission take steps, costing far more than the cost for the ballot item, in an attempt to change the State's decision; that she assumes that organization will go forth on their own and continue to put forth the effort; however, she thought the entire Commission supported the idea. Commissioner Atkins stated that he supports the concept on which the Commission originally voted; however, he is concerned that the proposed referendum would be a waste of time. Commissioner Cardamone stated that the manner in which this item was presented at the last meeting made it difficult for any of the Commissioners to deny taking something to a public vote; that she supported the idea as the democratic thing to do; that this is a City issue; that the opinions of people who do not reside in the City are not of concern to her since those people will not have to live with the scale of the bridge or the problems it creates on the waterfront. Commissioner Cardamone continued that she is not convinced that a referendum should be placed on the ballot; that while she agrees with Mayor Patterson in placing the simplest question on the ballot, she agrees with Commissioner Atkins that the vote could be meaningless; that the extra expense of the District #3 election may not be the best use of City dollars; that the passionate supporters and opposers of the 65-foot bridge will continue in their efforts regardless of the result of the Commission's action tonight; that she is in agreement with Commissioners Atkins and Pillot. Mayor Patterson stated that three Commissioners have stated they are not in support of placing a referendum on the ballot. The following people signed up to speak before the Commission: BOOK 37 Page 11400 02/06/95 6:00 P.M. BOOK 37 Page 11401 02/06/95 6:00 P.M. Stanley Wolf, 445 McKinley Drive (32436), stated that based on the Commission's discussion, he withdraws his request to speak. Richard Storm and Richard Smith, Attorney, representing the Bridge Too High Committee (BTHC), came before the Commission. Mr. Storm stated that the BTHC did not suggest a referendum and are content with the Commission's decision not to proceed with the referendum action; however, the BTHC will pursue the issue and feels that there is room to convince the FDOT to reconsider their relentless forward motion in view of the City's Comprehensive Plan; that the original proposal put forth by the BTHC to the Commission was a resolution reaffirming the previous Commission vote, in opposition to the 65-foot fixed span bridge while pointing out that the FDOT has not respected the terms of the Comprehensive Plan adopted by the City of Sarasota. Mr. Storm distributed copies of the Sarasota Magazine supplement entitled "Sarasota the Year 2040 - The City of Your Dreams' I in which Sarasota's skyline is featured over a low bridge, and stated that the depicted view would not exist in the year 2040 if the high bridge is allowed to be built. Attorney Smith stated that the Commission's interest in defending its Comprehensive Plan is something the citizens would expect without a referendum; that, hopefully, the matter will come back to the Commission with a recommendation from the City Attorney and the Administration as to the substantial chances the City has to stop the bridge proposal; that many high bridges proposed by FDOT throughout the State of Florida have subsequently been withdrawn; that the BTHC plans to return to the City with further information relating to the success other areas have experienced in upholding their comprehensive plans and local control over transportation installations. Marcelle Wolf, 445 McKinley Drive (34236), representing the Lido Key Residents Association, came before the Commission and stated that the Lido Key Residents Association voted unanimously in support of the high bridge. Mrs. Wolf referred to a letter from the Chief of Bridge Section, Seventh Coast Guard District, and cited the following; Among other requirements, the draw bridge shall open promptly and fully for the passage of vessels when a request to open is given by a vessel (on demand) . However, once a new draw bridge is open to highway traffic, the Coast Guard would consider regulations changing should there be an increase in highway traffic levels which result in revisiting traffic flow. Due to the seasonal nature of highway and waterway traffic, we would require 12 months of bridge logs and a 14-day highway traffic count both during in season and out of season in order to conduct this analysis. Mrs. Wolf stated that any bridge other than a fixed-span bridge will open on demand which is not what the citizens want. Mayor Patterson stated that the referendum provides an opportunity to find out where the community, perceived as divided, stands on this issue; that changing the FDOT's position is a long shot; that the Commission is being requested to pursue a previous position with no real knowledge of whether or not the citizens want that position pursued. City Auditor and Clerk Robinson read proposed Resolution No. 95R-800 (Alternative 2) by title only. On motion of Vice Mayor Merrill, and second of Mayor Patterson (who passed the gavel to Commissioner Cardamone), it was moved to adopt proposed Resolution No. 95R-800. Commissioner Cardamone restated the motion as to place on the ballot in the March election the question of: Shall the existing Ringling Causeway Bridge (S.R. 789) be replaced with a new, high-level, fixed-span bridge with a maximum clearance under the bridge of 65 feet by the Florida Department of Transportation: Yes or No Vice Mayor Merrill stated that he feels the public will vote in favor of the high bridge; that the vote may be close, but it would make the City's position uniform and coherent; that he would like the issue resolved once and for all. Mayor Patterson stated that she will have a difficult time pursing legal remedies in the future on what she perceives as a long shot with no demonstration of any mandate behind the City; that unless the BTHC can make that demonstration, the Commission may perceive that the people want what has already been decided. Commissioner Atkins stated that he does not see how the City Commission could be any more. cohesive in their position on this issue; that the electors should be represented by the City Commission without being asked every individual question with which the Commission is faced; that the Commission's position is on record; that the Commission has problems in other areas if 50 percent of electors disagree, with the Commission; that the Commission has. made: a decision; that he does not feel a referendum is necessary. BOOK 37 Page 11402 02./06/95 6:00 P.M. BOOK 37 Page 11403 02/06/95 6:00 P.M. Commissioner Cardamone stated that she agrees with the comments made by Commissioner Atkins. Vice Mayor Merrill stated that the current, official position of the City of Sarasota is in opposition to the high bridge; that some of the Commissioners have indicated they may no longer be opposed to a high bridge; that he feels a uniform, coherent, clear position is necessary; that a referendum will settle the issue. Commissioner Cardamone stated that the City Commission is clearly on record as unanimously opposed to the construction of a high bridge; that the position was reaffirmed by consensus at a subsequent meeting when the City Manager was asked to pursue the possibilities of stopping the construction of a high bridge; that the Commission decision on this issue has been rendered. Commissioner Cardamone requested that City Auditor and Clerk Robinson proçeed with the roll-call vote. Motion failed (3 to 2): Atkins, no; Cardamone, no; Merrill, yes; Pillot, no; Patterson, yes. Mayor Patterson requested City Auditor and Clerk Robinson to explain the public hearing process. Mr. Robinson stated that at this time the petitioner will be given a reasonable amount of time to address the Commission and for rebuttal; that any citizen who has signed up to speak has 5 minutes; and that the City Attorney will explain the time limits. All individuals wishing to speak during the public hearings were requested to stand and were sworn in by City Auditor and Clerk Robinson. 6. PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 95-3840, CONDITIONALLY REZONE THE FOLLOWING DESCRIBED REAL PROPERTY FROM MCI AND RSF-2 ZONE DISTRICTS TO COP ZONE DISTRICT; SAID PROPERTY IS LOCATED ON THE WEST SIDE OF S. TAMIAMI TRAIL EXTENDING FROM BAHIA VISTA STREET TO PROSPECT STREET FOR A DISTANCE OF APPROXIMATELY 630 FEET WITH A DEPTH OF APPROXIMATELY 260 FEET; AND, APPROVING PRELIMINARY SITE AND DEVELOPMENT PLAN 94-K IN ORDER TO PERMIT THE CONSTRUCTION OF A WALGREENS STORE AND A COMMERCIAL BUILDING; MORE PARTICULARLY DESCRIBED HEREIN; ETC. (TITLE ONLY) (PETITION NOS. 94-CO-06 AND 94-PSD-K) = PUBLIC HEARING CLOSED; CONTINUED DELIBERATIONS: CITY AUDITOR AND CLERK TO NOTIFY SPEAKERS OF THE CONTINUATION DATE SCHEDULED (AGENDA ITEM IV-1) #1 (1009) through #5 (1274) Mayor Patterson requested that the Administration begin the proceeding with an introduction. City Attorney Taylor stated that several months ago, a dispute arose concerning whether or not, as part of the proposed project, the adjacent residential property set aside for stormwater retention could be used; that the City's Building and Zoning Administrator determined that the property could be used as a stormwater retention area; that many months later an opinion from the City Attorney's Office was requested; that his opinion was contrary to that of the Building and Zoning Administrator; that the Petitioner had proceeded based on the determination put forth in writing by the Building and Zoning Administrator and significant sums of money and obligations were incurred; therefore, a legal question was presented as to whether or not under the doctrine of equitable estoppel, the City. could deny the site plan for noncompliance with the City's Zoning Code on the basis of the location of thè stormwater retention area; that based on a review of the facts submitted, he opined that equitable estoppel would apply in this circumstance, and the City would stand a substantial likelihood of losing a court challenge on the issue; that he has one opinion; that others could have opinions to the contrary; however, the issue referenced is a legal issue which could only be resolved in a court of law if a judicial process. is undertaken; that in relation to the purposes of tonight's meeting, the question has been asked and answered; that the Commission should not dwell on that particular issue tonight. City Attorney Taylor continued that tonight's proceeding is a quasi-judicial. process; that the City Commission is to take evidence, orally or through written submittal, from the people who which to speak, review it, and make a decision; that lengthy testimony was given at the Planning Board/Local Planning Agency (PBLP) meetings; that the minutes of and the documents presented at the PBLP meetings submitted to the City Commission prior to this public hearing. are part of the record; that although the public should be afforded a fair opportunity to be heard, restraints regarding time limitations can be imposed on the presentations being made; that the Petitioner should be entitled to a fair opportunity to present their case; that barring a number of unforeseen questions that prolong things, 30 minutes should be adequate time in which to hear the petitioners' presentation; however, many other people, i.e., a residents association, may also wish to be heard on this issue; that he has advised the Mayor that the public input should be viewed as an opportunity for the Commission to get a fair amount of input from the people who are present to speak, not necessarily an opportunity for every speaker to use an unlimited amount of time to present their position; that the Chair has the authority to make rulings in that regard. City Attorney Taylor further stated that the City Commission is not required to make a decision tonight on the issue before them; that it is legally permissible and appropriate, if desired; for the Commission to hear testimony tonight, review the record made, and BOOK 37 Page 11404 02/06/95 6:00 P.M. BOOK 37 Page 11405 02/06/95 6:00 P.M. deliberate and make a decision on the issue at a later meeting; that similarly, it is legally permissible to continue tonight's proceedings to another date to receive further input if a Commissioner or the Commission as a group feels questions are raised through testimony that are not answered during the proceedings; that obviously, the Commission can also close the proceedings and make the decision tonight. Commissioner Cardamone asked if the proceeding must remain an open public hearing if the Commission chooses to continue it? City Attorney Taylor stated that continuing the item as an open public hearing is permissible, but not required; that a problem could develop if the public hearing is closed and then re-opened during the next session to receive new testimony that the other sides have not had an opportunity to hear or rebut; that closing the public hearing would be appropriate if the Commission is satisfied with the input and wants time only to review the record for deliberation at a later date; that he would advise that the public hearing remain open if the Commission is not certain of the need for additional input. Mayor Patterson stated that the Commission could close the public hearing, subsequently enter into a discussion, and then decide not to make a decision; and asked if the Commission could re-open the public hearing prior to continuing the meeting so further input could be allowed at a subsequent meeting? City Attorney Taylor stated that stating on the record the time and date certain when the re-opening will take place would be appropriate notice to the public. City Auditor and Clerk Robinson concurred. City Manager Sollenberger gave an overview of the Order of Presentation to be made. Jane Robinson, Director of Planning and Development, came before the Commission, displayed the site plan on the overhead projector, and stated that this is a request to conditionally rezone the 3.91-acre parcel located to the west of U.S. 41 between Bahia Vista and Prospect Streets from the Medical, Charitable, Institutional (MCI) and Residential Single Family (RSF-2) Zone Districts to the Commercial Office Park (COP) Zone District; that the proposal has been in the Sarasota City Plan as an Impact Management Area since 1989; that in connection with the Conditional Rezoning Petition 94-CO-06, Preliminary Site and Development Plan 94-PSD-K has been filed to permit the construction of a Walgreens Store and a commercial building. Ms. Robinson continued that the proposal contains the following three phases: Phase I A 13,500 square-foot Walgreens. with drive- through prescription area and an off-site retention pond. Phase II An access road to Prospect Street from the south portion of Phase I. Phase III A 22,000 square-foot building envelope with no tenant recognized at this time and an off-site retention pond. Ms. Robinson stated that the following items were entered into the record as part of the review process during the related (PBLP) public hearings: city of Sarasota Zoning Code Sarasota City Code City of Sarasota Comprehensive Plan (Sarasota City Plan) Engineering Design Criteria Manual Standard Building Code (1991. Edition) with Appendices A,D,F,H,J & M, and the City of Sarasota local amendments Traffic Study prepared by Tindale-oliver and Associates Ms. Robinson continued that the Development Review Committee (DRC), comprised of representatives from the City Departments involved in reviewing site plans, reviewed the petition and found that all applicable code requirements have been met. Ms. Robinson further stated that the PBLP found Petitions 94-C0-06 and 94-PSD-K consistent with the Sarasota City Plan and the Tree Protection Ordinance, and recommended approval to the Commission with conditions relating to traffic abatement, implementation of the submitted Landscape Plan, and limiting the use to a drug store; that a separate motion was made and approved to stipulate that a traffic abatement plan be in place by September 30, 1995. Ms. Robinson stated for clarification that Section 6 (c) in the proposed ordinance inaccurately reflects a "Walgreen's Store" as the condition agreed to at the PBLP meeting; that the audio tape was reviewed, and the actual PBLP. motion was that, "the use for the Phase I structure be a drug store,' " not specifically a Walgreens Drug Store. Dennis Daughters, Director of Engineering/City Engineer, came before the Commission and presented the Engineering Staff report on the following five items: 1. Stormwater Concurrency: Mr. Daughters stated that the project will meet concurrency for stormwater and will not result in degradation of the adopted Level BOOK 37 Page 11406 02/06/95 6:00 P.M. BOOK 37 Page 11407 02/06/95 6:00 P.M. of Service (LOS) providing design and construction is in compliance with Part 4 of the Engineering Design Criteria Manual (EDCM), which the Engineering Department's review of Final Plans and Construction will assure. 2. EDCM Review: Mr. Daughter stated that the right-of-way improvements, as indicated on the memorandum from him dated December 5, 1994, contained in the agenda packets, include: The dedication of two 25 X 25 foot triangles at Bahia Vista Street & U.S. 41 and Prospect Street & U.S. 41 Construction of a half-section street with curb, gutter, sidewalk, and handicap ramps on Bahia Vista Street in Phase I and Prospect Street in Phase II. Re-construction of curb, gutter, sidewalk, and handicap ramps on South Tamiami Trail in all three phases. 3. Transportation Concurrency: Mr. Daughters stated that the Traffic Concurrency Review prepared by Tindale-Oliver and Associates, Inc. found that the entire development would increase the current P.M. peak hour trips by 86 and concluded the following: "The existing roadway network will be adequate to accommodate traffic generated by all three phases of the Walgreens Plaza development and background traffic, with no roadway improvements required." Mr. Daughters continued that the project is concurrent and will not result in degradation of the LOS of impacted roadways below the City's adopted LOS. 4. Traffic Circulation Review: Mr. Daughters stated that the Tindale-oliver traffic study states the proposed project, with a driveway on Bahia Vista Street, will result in the addition of 41 new trips to Bahia Vista Street during the P.M. peak hour, which equates to approximately 410 trips per day; that the study states that about 18 of the 41 peak hour trips would travel west of the site; that this section of Bahia Vista Street currently carries over 5,000 vehicles per day which is, according to the City Traffic Initiation Criteria, five times the volume determined as suitable for a residential street; therefore, the additional trips are of concern and in conflict with the Comprehensive Plan policy to reduce through-traffic on residential streets. 5. Recommendations: Mr. Daughters stated that the following recommendations were incorporated into Section 6 of the proposed ordinance: 1. The applicants comply with all elements listed under "Engineering Design Criteria Manual Review" 2. The applicants agree not to object to development of a traffic abatement plan for the segment of Bahia Vista Street between Brewer Place and Orange Avenue. Elements of a future traffic abatement plan may include, but are not limited to, measures such as restricted access to Bahia Vista Street, installation of medians, erection of traffic islands, multi-way stop signs, and Closure of Bahia Vista Street west of its intersection of Brewer Place; 3. The applicants agree to participate with the City and the residents in implementation of a traffic abatement plan. The applicants' financial responsibility is not to exceed $10,000; 4. If a traffic abatement plan is not implemented by the City within three years after Certificate of Occupancy of the Phase I buildings, conditions 2 & 3 will terminate. City Manager Sollenberger stated that Steve Tindale is available to make a presentation on the Tindale-oliver Traffic Study if the Commission so desires. Mayor Patterson stated that the Commission does not request a presentation at this time. City Attorney Taylor explained the following items that remained on the Order of Presentation schedule: Petitioner Presentation Public Testimony - Conduct Public Hearing Close Public Hearing Petitioner Rebuttal Staff Comments/Clarifications (only if necessary) Closing Comments by Petitioner (only if Staff comments/Clarifications are made) Commission Deliberation and Action City Attorney Taylor stated that the following items have been included in the information packet and are part of the record: 1. Ordinance No. 95-3840 2. City Manager's Memorandum with maps BOOK 37 Page 11408 02/06/95 6:00 P.M. BOOK 37 Page 11409 02/06/95 6:00 P.M. 3. Planning Board Information A. Planning Staff Report B. Engineering Staff Report C. Traffic Study D. Minutes: November 2, 1994 December 7, 1994 January 4, 1995 4. Public exhibits submitted at the Planning Board meeting 5. Site Plans submitted for the project City Manager Sollenberger referred to the memorandum in the information packet from Asim Mohammed, Assistant City Engineer, dated February 1, 1995, expressing concerns regarding the PBLP's recommendation that the traffic study abatement measures be in place by September 30, 1995, and that stated he supports the Engineering Department's recommendation to substitute the following for the PBLP's recommendation: A traffic abatement program for Bahia Vista Street and adjoining streets including Prospect Street be initiated by no later than June 15, 1995. The recommendation of the traffic abatement program, after adequate input from the residents and approval of the City Commission, be implemented by no later than three years from the issuance of the certificate of occupancy of Phase I of the proposed development. William Merrill, Attorney, and Bruce Franklin, Principal, Land Resource Strategies, Inc. representing Olympia Development Group, Inc. contract vendee, and BVP Associates, property owner, came before the Commission. Attorney Merrill stated that William Touloumis, President/Owner of Olympia Development Group, Inc., and George Dietz, Trustee, BVP Associates, are present to answer any questions concerning the owners or developers of the property. Attorney Merrill requested reservation of rebuttal time and/or cross examination time of people giving testimony. Mayor Patterson asked the City Attorney if members of the public would have the opportunity to rebut any new information, issues, or facts presented during the rebuttal time of the petitioner? City Attorney Taylor stated that a * fair opportunity to speak should be given to all interested parties; that others should have the opportunity to rebut if new factors are brought into the process. Attorney Merrill stated that others may make statements for which the petitioner will present, in rebuttal, evidence that may not have been presented in the petitioners' initial case; that the evidence should be considered rebuttal testimony and not new testimony. Mayor Patterson stated that it seems others should have the right to comment on totally new evidence that wasn't previously presented. Attorney Merrill stated that a rebuttal of a rebuttal of a rebuttal should be avoided. City Attorney Taylor stated that the process should go forward with a ruling to be made at the appropriate time. Attorney Merrill stated that the proceeding tonight is being held on a conditional rezoning and a preliminary site and development plan; that the site plan is preliminary and not final; that others may bring forward issues that should be addressed at the final site plan stage rather than during the proceedings tonight; that the site plan is for a 13,500 square-foot drug store, proposed as a Walgreens, and a 22,000 square-foot specialty retail building, indicated as a commercial building on the site plan; that the site plan has met the requirements of the City's Zoning Code, has been approved by the DRC, and has been recommended for approval by the PBLP under Section 3-12 of the Zoning Code; that the requested rezoning could occur in an MCI zone district that is not designated as an IMA; that the MCI portion of the property, a level 19 in the Zoning Code, Section 6-29, will be rezoned to a level 17; that the conditional rezoning is actually a two zone-district downzoning; that the 3.91 acre property fronts on U.S. 41 between Bahia Vista and Prospect Streets; that the 4.7 acres of vacant, single-family residential land behind the subject property, also owned by BVP Associates, provides 300 feet of buffer between the zoning boundary line. for the proposed COP property and the nearest, existing residence to the west, approximately, four to five lot widths away; that the rezoning petition meets all the requirements of Section 4-7(b) as approved by the PBLP; that the PBLP also found the rezoning petition to be consistent with the City's Comprehensive Plan; that the City's professional staff indicated that there were no objections with regard to the rezoning and that all DRC sign-off requirements have been met. Attorney Merrill continued that the project is not a liquor store; that no liquor store is attached to the proposed Walgreens; that liquor, beer, or wine sales are not permitted in the COP zone district, and therefore, have not been proposed; that the property, as the traffic study indicates, creates a diminutive impact on an overburdened roadway, Bahia Vista Street; that the project will add 18 new P.M. peak trips to the western portion of Bahia Vista BOOK. 37 Page 11410 02/06/95 6:00 P.M. BOOK 37 Page 11411 02/06/95 6:00 P.M. Street; that the problem on Bahia Vista Street which has existed for a long time was not created by the proposed development; however, the developer and owner have attempted to be part of the solution by making a promise to the neighbors, and recommending to the PBLP that a traffic abatement plan be implemented within nine months of approval on the project; that City Staff indicated they are not in a position to implement the traffic abatement by September 30, 1995; that the petitioner would like to fulfill their promise to the neighbors and have the traffic abatement plan in effect within nine months following approval of the project. Attorney Merrill referred to an Existing Land Use (partial) Project Location Map and stated that the subject property is located in a highly intensive commercial corridor along U.S. 41; that the properties surrounding the subject property from Sarasota High School to Hyde Park Street are zoned Commercial or Government; that the existing MCI zoning is inconsistent with the Comprehensive Plan; that the 3.91-acre property is not and never was part of the Avondale Residential Neighborhood located to the west of the proposed site; that a Highway Hotel was formerly located on the site after which it was used for non-profit, commercial retail, and non-profit offices; that the site currently exists as retail uses for a non-profit organization; that the petitioner has been sensitive to the neighborhood and has met with the leadership of the Avondale Residents Association, individual members, and individual neighbors, on several occasions; that agreements were reached; however, at a later date the petitioner found that the Association's concerns could no longer be satisfied as agreed. Attorney Merrill continued that the project will have no adverse impact on property values and does not create a major impact on traffic; however, the petitioner is willing to assist the City and the neighbors in attempting to work out a solution for traffic mitigation on Bahia Vista Street. Mr. Franklin referred to the Existing Land Use Map previously displayed, stated that a similar map can be found on pages 13 and 14 of the information packet, and explained the location of the subject property and its relationship to the existing land use patterns along the north section of U.S. 41 corridor. Mr. Franklin stated that the rezoning would apply to less than half of the total 8.75 acre property, under unified and controlled ownership of the petitioners, which is located in the overall IMA on Future Land Use Map 17; that except for the property on which the Planned Parenthood facility is proposed, the subject property is the only undeveloped property on the north section of the Existing Land Use map; that the COP zone district, which is the least intensive zone district in the City, would be appropriate as in-fill and a buffer from the commercial uses for the neighborhood to the west. Mr. Franklin referred to a board display with the project area of Future Land Use Map 17 enlarged to demonstrate that the proposed COP rezoning would extend no further to the west than existing commercial zoning and that the residents to the west would be buffered by over 300 feet of land. Attorney Merrill asked Mr. Franklin if the Existing Land Use Map board display had been reproduced from the map contained in the Zoning Code? Mr. Franklin stated that was correcti that the map had been color-coded for better clarity of the various zones. Attorney Merrill asked if three medical offices were the only other uses directly located on U.S. 41 in the map displayed? Mr. Franklin stated that the medical offices are all within the Commercial Zone Districts. Mr. Franklin continued that a graphic was not prepared on the south section of the South Tamiami Trail Existing Land Use map from Hyde Park to Bay Road; that the office character of the south portion of South Tamiami Trail (U.S. 41) is different than the character of the north section; that focusing on the north section within which the subject property is located would be more appropriate for tonight's proceeding. Mr. Franklin further stated that the subject property is the only "gap" in the north section of the corridor that is undeveloped with commercial or medical/office uses; that the proposal is not only consistent, but also compatible with the existing commercial corridor. Attorney Merrill stated that page 13 of the information packet shows that the area is primarily commercial whereas page 14 shows that from Hyde Park Street to the Southgate and Crossroad shopping areas the west side of U.S. 41 is office or residential; that the vast difference in types of regions is probably due to the location of Sarasota Memorial Hospital (SMH) , and the retail services it generates, in the north section; that SMH is one of the largest employers and probably has the most employees in a single building throughout Sarasota County; that the SMH area is a highly intensive area of the City as well as the County. Mr. Franklin stated that COP is the least intensive zone district in the City and is less intensive than the uses permitted under the existing zoning district; that the significant requirements envisioned in the Comprehensive Plan in allocating COP as the appropriate zoning district have been applied not only in terms of the zone district requirements but also by those conditions that the petitioner is willing to apply voluntarily from the standpoint of good planning and in responding to the concerns expressed by the neighborhood; that there are curb cut limitations, signage limitations, réstrictive lot and yard requirements, restrictive height and bulk requirements, and restrictive parking requirements; BOOK 37 Page 11412 02/06/95 6:00 P.M. BOOK 37 Page 11413 02/06/95 6:00 P.M. that the COP and OP zone districts sections of the Zoning Code read exactly alike with the only distinction being the permitted principal uses; that one permits commercial retail and the other permits primarily office and bank uses; that the super landscaping requirements set forth in the Zoning Code are close to an office district, but permit commercial uses. Mr. Franklin continued that the petitioner views that the current MCI zone district is not consistent with the Comprehensive Plan; that this proceeding is not being held to determine land use policy; that the Commission previously adopted the land use policy for the subject property; that the petitioner is attempting to implement that policy by the application of a zoning district which is consistent with the Comprehensive Plan and provides a much more substantial buffer than the existing zoning along U.S. 41. Attorney Merrill referred to the Sarasota City Plan Appendix C, Future Land Use Map 17, May Houck IMA, (page 272 of the information packet) and stated that the eligible land use for Sub-area 1, the subject property, is indicated as Commercial or Office and the eligible zone district is COP only, OP or less intensive. Attorney Merrill cited the following definition from page 24 of the Sarasota City Plan: Eligible land uses: land uses which are deemed consistent with the plan, noting that the term "or" indicates a choice in land uses. and the following from Section 6-29 of the Zoning Code: (a) Therefore, property within impact management areas is eligible for rezoning to the zone or zones specified in the future land use map for the particular impact management area or to a zone equal or less intensive than the existing zone. (b) A petition to rezone property to an equal or less intensive zone is defined as a rezoning from a zone district at a higher level of classification in the chart below to a zone district which is classified at an equal or local level number. Classification Commercial, Industrial. Office Zones Level 17 COP Level 19 CN, CT, MCI Attorney Merrill stated that the proposed COP rezoning is Level 17 and the current MCI zoning is Level 19; that the choice of land uses as defined under Eligible Land Uses is that of the petitioner; that the term "or" indicates a choice of land use, thereby granting the petitioner the choice of Commercial or Office and the choice of COP, OP, or a less intensive use; that substantively COP and OP zone districts are the same with the only difference being the uses; that the bulk, yard, and landscaping requirements are the same; that the case comes down to a permitted use issue; that as of this date, the petitioner has a right to develop uses on the property zoned MCI that are more intensive from a traffic generation perspective, etc., than those uses allowed in the COP zone district; as proposed; that the additional stipulations, the super landscaping requirements of COP, the traffic abatement program proposed, etc., would not apply if the property were developed as an MCI use. Attorney Merrill continued that he feels the petitioner has the right to rezone the property since there is currently an inconsistency on the zoning maps. Attorney Merrill submitted Bruce Franklin's resume into the record for the purpose of qualifying him as an expert in Urban Design. Mr. Franklin referred to a "Height Comparison of Buildings" board display to demonstrate that the height of the proposed Walgreens at 27 feet in the front and 23 feet in the rear will be well within the scale and massing of U.S. 41 frontage and within the height scale for single-family residential. Mr. Franklin stated that the landscaping requirements in the COP district are the highest of any City zone district; that the petitioner has proposed substantial, additional landscaping beyond that which is required for the COP district. Mr. Franklin referred to and explained various sections of the Preliminary Landscape Plan, including the proposed surface water retention area, the proposed 6-foot wall, the loading area, and the landscaping on the site. Mr. Franklin referred to and explained a board display which visualized the $15,000 of additional landscaping, outlined in exhibit "B" of proposed Ordinance No.95-3840, that the petitioner agreed to provide as a visual landscape buffer from the neighborhood along the west property boundary between Bahia Vista Street and Prospect Street. Mr. Franklin stated that the loading area for the proposed Walgreens was established on the south side of the building and is substantially screened from the residential area to the west; that testimony was given at the PBLP that it will be difficult for semi- trailer trucks to back up to the loading area; that Walgreens produces and distributes their own products, and therefore, deals with only one vendor; that the deliveries are made in panel vans, panel trucks, or dual axle vehicles. Mr. Franklin continued that noise and lighting concerns have been expressed by the Avondale BOOK 37 Page 11414 02/06/95 6:00 P.M. BOOK 37 Page 11415 02/06/95 6:00 P.M. residents; that noise would not be a factor any more so than with any other use, i.e., office; that the petitioner is willing to restrict deliveries to daytime hours; that Section 12-7 of the Zoning Code clearly outlines the design and installation of artificial lighting adjacent to residential areas; that the petitioner intends to comply with those requirements which will be reviewed at the final site plan stage. Mr. Franklin further stated that the petitioner is willing to stipulate to the intention of providing bicycle racks; that a sidewalk will be constructed on the south side of Bahia Vista Street and a crosswalk painted to provide pedestrian crossing to the existing sidewalk on the north side of Bahia Vista Street. Attorney Merrill entered the following items into the record: Bruce Franklin's resume Petitioner Exhibit 1 Existing Land Use (Partial) Location Map Petitioner Exhibit 2 Preliminary Landscape Plan Petitioner Exhibit 3 Additional Landscape Petitioner Exhibit 4 Height Comparison Petitioner Exhibit 5 Future Use Map 17 Enlargement Petitioner Exhibit 6 Attorney Merrill asked if the letter dated February 2, 1995, to the Mayor, Vice Mayor, and Commissioners concerning the stipulations has been made a part of the record? City Auditor and Clerk Robinson stated that he has a copy of the referenced letter. Attorney Merrill asked if the section of the information packet labeled City Manager's Memorandum, pages 9-16, was part of the record. City Auditor and Clerk Robinson stated that the information was part of the record. Vice Mayor Merrill left the Commission Chambers at 7:30 p.m. Attorney Merrill concluded the Petitioner's initial presentation by stating the Commission's consideration on this matter is appreciated. Commissioner Cardamone requested that Ms. Robinson come before the Commission, and asked for comment on Attorney Merrill's reference to choices when the wording states "COP only, OP or less." Ms. Robinson stated that the Comprehensive Plan recognizes those two zone districts or a less intensive zone district as being eligible for rezoning. Commissioner Cardamone asked for the meaning of the word "only." Ms. Robinson stated that the word "only" was included to exclude Commercial Neighborhood (CN) or Commercial Government (CG) zone districts; that the COP and OP zone districts were both designed to be more neighborhood sensitive. Commissioner Cardamone stated that Attorney Merrill made the statement regarding the consistency of the MCI zoned property; and asked for clarification. Ms. Robinson stated that the City's Comprehensive Plan addresses future land uses in terms of consistency; that the MCI zone district is an existing zone and an appropriate land use; that COP and OP zone districts are eligible based on the Comprehensive Plan; that the MCI zoned property would not be found inconsistent with the Comprehensive Plan. Commissioner Cardamone asked if the portion of the property zoned MCI could be developed with MCI uses? Ms. Robinson responded yes; however, the portion of the parcel that is zoned RSF-2 could not be used for parking, MCI, COP, or OP uses, Commissioner Cardamone asked if the City could refuse or demand a curb cut on Bahia Vista Street if the property was developed for an MCI use? Mr. Sollenberger asked Mr. Daughters to come forward to address Commissioner Cardamone's question. Commissioner Pillot stated that Commissioner Cardamone stated that the IMA indicates COP or OP, and Ms. Robinson stated that MCI is acceptable; and asked if the MCI zone is "grandfathered"? Vice Mayor Merrill returned to the Commission Chambers at 7:34 p.m. Ms. Robinson responded, yes; and stated that the MCI zone was found to be an appropriate land use since the City did not rezone the property to another zone district. Commissioner Cardamone stated that a decision was made during the Comprehensive Plan process in 1989 which declared the MCI zoned parcel eligible for rezoning. Ms. Robinson stated that citizens were very concerned with SMH expansion when the Comprehensive Plan was developed in 1989; that zoning categories for uses located on major roads were created to be more sensitive to residential uses; however, the Comprehensive Plan did not preclude using MCI zoning for any of the uses allowed in the MCI zone district; that allowing future land use zoning does not preclude the MCI zone district from being used; that the MCI zone district was not addressed as inappropriate, was grandfathered BOOK 37 Page 11416 02/06/95 6:00 P.M. BOOK 37 Page 11417 02/06/95 6:00 P.M. in, and is an appropriate land use; that the Comprehensive Plan only addresses future land uses and zones that may be eligible for rezoning from the MCI zone district; that the MCI zone district is consistent with the Comprehensive Plan; that it is an existing zone. Commissioner Cardamone reiterated her question asking if the MCI zone district were pursued for development, would the City have an opportunity to either insist upon or deny a curb cut on Bahia Vista and/or Prospect Streets? Mr. Daughters responded, yes; that City regulations provide the City with the authority through improvements relating to traffic circulation or, perhaps, traffic concurrency to require the location of a driveway. Attorney Merrill cited the following from page 24 of the Sarasota City Plan in response to statements regarding the future land use element: Eligible Land Uses: land uses which are deemed consistent with the plan, noting that the term "or" indicates a choice in land uses, and the following from Land Use Appendix C: Guidelines which govern land use changes through rezoning and development of the IMAS are defined in this appendix. These guidelines are site-specific and include land use and zone districts which will be considered consistent with the plan. Attorney Merrill stated that the wording from Land Use Appendix C speaks in the present and, in his opinion, affirms exactly what is being discussed; that while under City policy, MCI uses may be allowed to be developed on the subject property that is currently zoned MCI, MCI is not something that the property could be zoned to in the future, and, therefore, he would submit that MCI zoning is not consistent with the adopted Comprehensive Plan; that Future Land Use Map 17 does not list MCI or state existing uses, it lists commercial or office, and for the zone district, COP only, OP or less intensive; that he is not opining as to whether the property could be used for MCI uses; that he is stating that MCI zoning and development as MCI uses would be inconsistent with the Comprehensive Plan. Attorney Merrill continued in response to Mr. Daughter's statement that there are currently curb cuts on the Bahia Vista Street portion of the property zoned MCI; that there may be some things the City Engineer can do with regard to site planning issues and traffic circulation, but he would submit that the City Engineer could not prohibit access to the site from Bahia Vista Street. Mr. Franklin stated that the City may be able to prohibit an access if a problem is found in concurrency, however, the finding by Staff as stated tonight was that the project meets concurrency; that saying MCI uses could be so intense as to have a concurrency problem to prohibit access would further the petitioner's point that MCI uses would be more intensive than what is being proposed. Attorney Merrill requested that he be given the opportunity to ask questions of people who may speak in opposition to the petitions during the public comment segment of the proceeding. Mayor Patterson stated that asking speakers to remain in the chambers for three or four hours after making their comments for possible questioning by the petitioner's attorney would not be appropriate; that Attorney Merrill will have the opportunity to question speakers immediately following their comments. Mayor Patterson opened the public hearing. The following people came before the Commission: Brenda Patten, Attorney and Urban Planner; Diane Chadwick, Planner, and Robert Lombardo, Traffic Engineer and President, Lombardo & Skipper, Inc.; representing Avondale Residents Association, came before the Commission. Ms. Patten entered her resume into the record for the purpose of qualifying herself as a Land Use Attorney and an Urban Planner. Ms. Patten stated that she is the Deputy County Attorney for Sarasota County Government who represents the Board of County Commissioners and Planning Commission in areas of planning and zoning law; that she previously served as legal staff to the Governor's Growth Management Advisory Committee under the Graham administration; and participated in the development of State rules for implementing the Growth Management Act. Ms. Patten stated that as speaking as an attorney the Commission is not legally required to approve a proposed rezoning that is consistent with the Comprehensive Plan; and cited the following holdings from the October 7, 1993, decision of Board of County Commissioners of Brevard County V. Jack Snyder: We cannot accept the proposition that once the land owner demonstrates that the proposed use is consistent with the Comprehensive Plan, he is presumptively entitled to this use. BOOK 37 Page 11418 02/06/95 6:00 P.M. BOOK 37 Page 11419 02/06/95 6:00 P.M. We do not believe that a property owner is necessarily entitled to relief by proving consistency when the board action is also consistent with the plan. Where any of several zoning classifications are consistent with the plan, the applicant seeking a change from one use to the other is not entitled to relief absent proof that the status quo is no longer reasonable. Ms. Patten stated that the Florida Supreme Court has not yet required automatic approval of a requested rezoning that meets consistency; that a Commission may legally deny a requested rezoning that is consistent with the Comprehensive Plan if there are other alternatives which are also. consistent with the plan; therefore, the question for this Commission is if there are other alternatives available that may be found to be consistent with the City's Comprehensive Plan. Ms. Patten referred to page 31 of the information packet, Future Land Use Map 17, and stated that the parcel under consideration is eligible for COP only, or OP or less intensive use; that eligible means it may be considered for rezoning in conjunction with other goals and objectives of the Comprehensive Plan. Ms. Patten stated that she takes issue with the statement made earlier by Ms. Robinson that MCI zoning is essentially grandfathered; that nothing was found in the City's Zoning Code or Comprehensive Plan to suggest that MCI is a grandfathered zoning classification; that MCI is the existing zoning which has not been found to be inconsistent with the Comprehensive Plan, but rather reported by Staff to be consistent; and cited the following from page 25 of the information packet: Criteria Comments Whether there are substantial The property can be used in reasons why the property cannot accordance with existing be used in accordance with zoning, however, the site is existing zoning. eligible to be reviewed for COP opportunities. Ms. Patten stated that the Commission has three options under the Comprehensive Plan and Zoning Code that may be considered to be consistent with the Comprehensive Plan and could be approved under Snyder if supported by substantial, competent evidence: OP, COP, or leaving the parcel zoned as MCI; that ample evidence and testimony will be provided to the Commission that the requested proposal is not consistent with many of the goals, objectives, and policies of the Comprehensive Plan of the City of Sarasota and should be denied; that evidence and testimony will also be presented that a less intensive use, such as an office use, is consistent with the Comprehensive Plan and meets the goals, objectives, and policies of the Comprehensive Plan. Ms. Patten continued that the subject property, zoned other than commercial, was purchased by the owners in the early 1980s as a speculative investment; that commercial designation has been pursued ever since purchase; that the courts have clearly held that a City is under no obligation to help a developer realize his or her investment expectations; that the neighbors do support development of the proposed site and wish the owners successi however, the neighbors do not support the owners realizing their hope for investment expectations by imposing commercial development on and at the expense of the quality of the neighborhood. Ms. Patten in speaking as an Urban Planner stated that she has reviewed and written several provisions of comprehensive plans; that the City's Comprehensive Plan is unique in that land use compatibility and neighborhood protection are elevated to a very high level as a well-articulated goal; that in accordance with the Snyder decision, the Commission's decision must be consistent with the Comprehensive Plan; that the goals and objectives of the City's Comprehensive Plan are extremely relevant and critical to the decision being made tonight; and cited the following from the Sarasota City Plan: Problems: (page 7) Many residents feel that new development is not sensitive to the City's small town character, and are concerned that Sarasota may become another nondescript sunbelt boomtown. Public hearings, held during preparation of the 1986 Sarasota City Plan and during this 1989 update, identified neighborhood protection as the major growth management issue that must be addressed. Land Use Plan (pages 9,10, and 13) GOAL 1: IT SHALL BE THE GOAL OF THE CITY OF SARASOTA TO ACHIEVE A HIGH-QUALITY LIVING ENVIRONMENT THROUGH COMPATIBLE LAND USES, THROUGHOUT RESTORATION AND PROTECTION OF THE NATURAL ENVIRONMENT, AND THROUGH PROVISION OF FACILITIES AND SERVICES WHICH MEET THE SOCIAL AND ECONOMIC NEEDS OF THE COMMUNITY. 1. Objective: To continue to base future land use patterns on compatibility of land uses, suitability of land for development, and availability of facilities and services. BOOK 37 Page 11420 02/06/95 6:00 P.M. BOOK 37 Page 11421 02/06/95 6:00 P.M. 2. Objective: To continue to promote the development of compatible land use patterns. GOAL 2: IT SHALL BE THE GOAL OF THE CITY OF SARASOTA TO MAINTAIN A HIGH QUALITY OF LIFE BY PROTECTING AND ENHANCING THE CHARACTER AND QUALITY OF NEIGHBORHOODS. 8. Objective: Residential neighborhoods shall be protected through the implementation of neighborhood policies and plans which address neighborhood stability, safety, traffic, aesthetics, and character, including historic resources. Ms. Patten stated that neighborhood compatibility and neighborhood protection is a very high goal of the City's Comprehensive Plan. Ms. Patten continued that a 24-hour, commercial, Walgreens store with a drive-through window is not compatible with the low density, residential neighborhood to the west of the proposed site; that the proposed commercial use would encourage around the clock, 24-hour customer service and traffic deliveries on the adjacent, neighboring streets; that the project would bring commercial activity and noise, commercial traffic, commercial garbage and refuse collection, and 24-hour commercial lighting to within a few feet of existing homes. Ms. Patten stated that the Association has concerns as to what type of single-family residents would be willing to locate in the RSF-2 zoned property immediately adjacent to the proposed Walgreens site. Ms. Patten entered into the record a copy of Supp. No. 17, pages 66.2 and 66.3, of the Zoning Code Section 4-7 which itemizes in full the 16 criteria which must be evaluated by the planning board, and she presumes the Commission, in making a land use determination. Ms. Patten referred to pages 24 of the information packet cited the following: Criteria Comments Whether the proposed change With appropriate mitigation will adversely influence living measures a zoning change should conditions in the neighborhood. not adversely influence living conditions in the neighborhood. Ms. Patten stated that there is no mitigation plan, therefore, the adverse influence cannot be determined; Ms. Patten referred to the PBLP conditions listed on the back of the agenda sheet for Item IV-1 from which she summarized the following: 1. The applicants agree not to object to traffic abatement elements which may include, but not be limited to, such measures as restricted access to Bahia Vista Street, installation of medians, erection of traffic islands, multi-way stop signs, and closure of Bahia Vista Street. 2. The applicants, whose financial responsibility will not exceed $10,000, agrees to participate (??) with the City and the resident in an implementation of a traffic abatement plan. 3. And if the City does not implement traffic abatement within three years condition 2 will terminate. Ms. Patten stated that her understanding from the request submitted by the City Administration earlier to modify the conditions set forth by the PBLP is that the City realizes a traffic abatement plan could not be implemented within three years,. Ms. Patten continued that these items indicate that a mitigation plan has not been agreed to with regard to the subject parcel; that the Staff comment on a very critical issue of the review criteria is, basically, "we don't know, but hope in the future there will be some type of mitigation." - Ms. Patten cited the following from page 25 of the information packet: Criteria Comments Whether the proposed change No evidence has been reviewed will adversely affect property that would verify an adverse values in the adjacent area. effect on property values in the adjacent area. Ms. Patten questioned why no evidence was reviewed; and stated that the Association has a realtor who will provide evidence on that point and reach a different conclusion. Criteria Comments Whether there are substantial The property can be used in reasons why the property cannot accordance with existing zoning, however, the site is BOOK 37 Page 11422 02/06/95 6:00 P.M. BOOK 37 Page 11423 02/06/95 6:00 P.M. be used in accordance with eligible to be reviewed for COP existing zoning. opportunities. Ms. Patten stated that the property can be used in accordance with the existing zoning so there is no compulsion for the subject property to be rezoned to COP. Criteria Comments Whether the change suggested is With appropriate mitigation out of scale with the needs of measures a zoning change could the neighborhood or the City. be in scale with the needs of the neighborhood or the City. Ms. Patten stated that the comment is a weak and inappropriate basis to approve a rezoning; that the City has no mitigation plan that has been agreed to. Criteria Comments Whether it is impossible to Other sites in the City are find other sites in the City available. for the proposed use, in districts already permitting such use. Ms. Patten stated that other sites are available; therefore, the Commission is not under a compulsion to approve the request. Ms. Patten continued that the City has been attempting to find traffic abatement solutions for the surrounding neighborhood; that none have materialized; and asked why is there a thought that traffic abatement would suddenly become a reality? Ms. Patten apologized for the length of her presentation; and stated that she is responding to the 300-page record before the Commission, an opportunity that has been limited thus far in the proceeding although the petitioners have had ample opportunity to present, rebut, and then re-present. Ms. Patten cited the following from a memorandum dated December 5, 1994, on page 112 in the information packet: Traffic Circulation Review: The residential section of Bahia Vista Street currently carries five times the traffic volume (5,280 vpd) determined to be suitable for a residential street as per the city's warrants for traffic abatement on residential streets. Therefore, the proposed addition of forty-one new hourly trips to Bahia Vista Street is a cause of concern to us and is in conflict with the Comprehensive Plan's policy to reduced through-traffic on residential streets. Ms. Patten stated that the Engineering Department responded to the concern with the conditions on the agenda request as previously stated. Ms. Patten continued that the statements made by Attorney Merrill that agreements had been made with the Association and that the neighbors had been willing and receptive to conditions, but went back on their word at the PBLP public hearing were false. Ms. Patten entered into the record a memorandum dated October 26, 1994, from Dennis Daughters, Director of Engineering/City Engineer, to Jane Robinson, Director of Planning and Development. Ms. Patten stated that the October 26, 1994, memorandum contained the same statement previously cited from information page 112 which indicated concerns relating to traffic and that the proposal is in conflict with the Comprehensive Plan to reduce traffic. Ms. Patten cited the following recommendation from the October 26, 1994, memorandum: We therefore recommend that the site plan approval of the proposed development be conditioned in the following manner: 1. That the project will not be allowed to have a driveway on Bahia Vista Street. Ms. Patten stated that she questioned the change in conditions from October 26 to December 5, queried City Staff, and found that much correspondence back and forth and many meetings with the petitioner had taken place; that the Staff issued the October 26 memorandum because the developer was not in agreement to any mitigation conditions; that after issuance of the memorandum, the developer reluctantly agreed to participate in mitigation, not object to mitigation, and to contribute $10,000 toward mitigation; that the developer did not eagerly try to appease the Avondale neighborhood and was forced into agreeing to mitigation; that to her knowledge, no agreements on any mitigation issue were made with the neighbors. Ms. Patten continued that Attorney Merrill has referred to the proposal as a downzoning, which it is not; that approximately 20 percent of the site will be rezoned from RSF-2 to COP which allows fairly intensive commercial uses; that residential to COP is not a downzoning; that part of the site will be rezoned from MCI to COP, but the full picture should be kept in perspective; that, in addition, the applicants are locating the stormwater retention area BOOK 37 Page 11424 02/06/95 6:00 P.M. BOOK 37 Page 11425 02/06/95 6:00 P.M. on the residential area behind the COP zoning; that the stormwater retention area will be in a district which remains residential even if the proposed rezoning is approved and takes part of the commercial site plan even further back into the residential area; that the petitioner's claim that the proposal will intrude no further than the existing MCI and that the rezoning is a downzoning is a misrepresentation. Ms. Patten further stated that the proposed site plan for the development notes two buildings: one labeled the proposed Walgreens, the other is labeled as a proposed commercial building; that a rezoning to COP has been requested; that "C" is for commercial, "O" is for office, and "P" is for park; that no office has been indicated on the site plan; that the highest rate of return is gained from commercial, and commercial is all the petitioner is proposing on the site plan. Ms. Patten entered into the record a copy, of an editorial entitled, "Zoning in Haste" from a late 1980s edition of the Sarasota Herald Tribune, and cited the following: But, we suggest, City Commissioners should keep in mind the zoning version of Murphy's Law: Land use will rise to meet the most intensive level permitted by the Zoning Code. Ms. Patten stated that under COP, commercial is the most intensive zoning permitted and Murphy's Law will rein, because that's where the money is, and the subject property will result in a commercial strip mall. Ms. Patten referred to the minutes of the January 4, 1995, PBLP meeting (page 205 in the information packet) and stated that Attorney Merrill became rather indignant when someone asked if the proposed store would sell beer, wine, or liquor and stated there would be no liquor store and that he felt there was a mob mentality when groups get together and the people don't fully know what is happening, they don't read the petitions or investigate the issue; that Attorney Merrill stated he felt the issue was an unfounded rumor. Ms. Patten continued that Attorney Merrill had started the rumor; that she took detailed notes from the November 3, 1993, neighborhood meeting called by the petitioner as required by the Sarasota City Plan at which Attorney Merrill stated that the petitioner was seeking a drive-through pharmacy, a Walgreens with a package liquor store and that the Zoning Code would have to be amended to allow package stores in COP zone and amend the distance requirements between package stores and neighborhoods; that since that date, there have been several attempts to exempt drug stores and grocery stores, etc., from the restrictions of selling beer and wine within a certain distance from residential property and to exempt them from the City's definition of package stores; that the Association understands those efforts have failed and the Association thanks the Commission; however, future Commissions may not look on these matters as wisely as the current Commission; that the neighborhood feels rezoning the subject property to COP will bring the issue of liquor being sold on that corner one step closer since drug stores and grocery stores are permitted uses in a COP zone district; that liquor in a 24-hour establishment located across from Sarasota High School would be very bad news; that Attorney Merrill made comments during the PBLP meeting that under MCI zoning a private club with liquor could be developed; that a private club with liquor could be developed under MCI, COP, or OP; therefore, his statement was irrelevant. Mr. Lombardo stated that he is a Registered Professional Engineer in the State of Florida and entered his resume and that of Diane Chadwick's into the record for the purpose of qualifying them as experts. Mr. Lombardo stated that at the request of Brenda Patten, several items related to the proposal, i.e., correspondence, memorandums, and the Tindale-oliver Traffic Study were reviewed; that he listened to the tapes of the PBLP public hearing during which Mr. Tindale was never asked to compare general office traffic with the traffic that would be generated from the proposal submitted, and no expert testimony was given as to whether or not general office use has more traffic or less. Mr. Lombardo referred to and explained a Trip Generation Comparison board display and stated that Mr. Tindale did a fine job of relating the actual traffic; that 835 passer-by trips were noted on a daily basis which reduces the daily traffic to 1021; that the General Office category ITE, trip generations manual, shows daily traffic at 641 and the peak-hour trips are close to those of the proposed use; that no greater impact is experienced during the peak-hour trips; however, his concern is with the daily trips; that 380 more daily trips are shown for the proposed rezoning than for general office use; that significant weight should be put on those additional trips when the rezoning of a piece of property to another use is being considered in an area where traffic problems already exist. Mr. Lombardo referred to and explained a board display of Project Distribution at Driveway contained in the Tindale-oliver Traffic Study to which he added the number of total trips; and stated that the fact that passer-by trips are already on the road does not mitigate the fact that instead of making a through movement, conflict movements will be created as the vehicles enter and exit the proposed site; that the current traffic situations should be resolved before action is taken by the Commission to increase traffic by approving the proposed use over a general office use. BOOK 37 Page 11426 02/06/95 6:00 P.M. BOOK 37 Page 11427 02/06/95 6:00 P.M. Mr. Lombardo stated that the issue seems to be hinging on traffic abatement; that the reality of closing Bahia Vista Street or the other suggested forms of traffic abatement to reduce vehicles from the roadway should be carefully evaluated; that he interpreted the statements made by Mr. Tindale at the PBLP hearing to indicate that the project doesn't work without traffic abatement; that traffic abatement will not occur if the solutions are not realistic; that traffic abatement should be implemented prior to the Commission making a decision to increase traffic on the roadway; that the same traffic issues relating to Bahia Vista Street were addressed in the Tampa Bay Engineering Study prepared for SMH in 1990, and another engineering report prepared in 1978; that whether or not traffic abatement in the subject area will occur is questionable. Ms. Chadwick stated that she is a member of the American Institute of Certified Planners; that at the request of the Avondale Association and Brenda Patten, the Comprehensive Plan, Zoning Code, and the proposed site plan were reviewed. Ms. Chadwick cited the following from page 9 of the Sarasota City Plan: 1.3 Policy: All development or redevelopment or changes in zoning or IMA designation shall be evaluated with a view toward preservation of both the viability of and quality of life in existing neighborhoods. Ms. Chadwick referred Future Land Use Map 17 and stated that the May Houck IMA lists eligible zone districts as Sub-area 1: COP only, OP or less intensive, and Sub-area 2: RSF-3 or less intensive; that different levels of intensity are listed under the Zoning Code; that 20 to 23 percent of the proposed site is zoned RSF-2; and that portion of the site will be rezoned from a Level 4 to a Level 17 which is a 13-step increase. Ms. Chadwick distributed a chart which separately listed the uses permitted in the MCI, COP, and OP zone districts and explained the realistic, available land uses each of the three zone districts; and stated that the majority of available COP land uses are commercial retail; that she feels the MCI zone district is listed as a higher-level intensity due to the lot coverage and height allowances. Ms. Chadwick stated that retail uses, due to hours of operation, are much more intensive than office uses; that office are typically open five days per week between the hours of 8:00 a.m. and 6:00 p.m.; ; that a commercial establishment is typically open seven days per week from 9:00 a.m. to 9:00 p.m.; that the site plan presented which proposes a 24-hour per day operation is more intensive than the possibilities available in the OP or MCI districts; that an office use on the site would be more compatible with the surrounding residential uses than the commercial use being proposed; that compatibility should be addressed when considering a rezoning. Ms. Chadwick referred to a board display of the entire South Tamiami Trail Existing Land Use Map which was a color-coded enlargement of the maps shown on pages 13 and 14 of the information packet and referenced the normal land use transitions from commercial to office to multi- or high density, single-family residential into single-family residential district on the east and west side of U.S. 41; and stated that the proposed site plan goes from commercial to single-family residential zoning and does not follow the normal land transition; that the proposed site plan uses all of the IMA Sub-area 1 for the commercial development; that Sub- area 2 allows for RSF-3 or less intensive; that there is no space for transition; that a 45-foot wide drainage area, a 6-foot high concrete wall, and enhancement of landscaping is being provided as mitigation for skipping over what is appropriate land use transition. Ms. Chadwick stated that the site plan prepared uses every square- foot of proposed commercial space available on the subject property; that the retention area was located off the commercial site so that 35,000 square feet of commercial space could be utilized. Ms. Chadwick continued that a drive-through pharmacy is proposed; that the Zoning Code does not address drive-through uses relating to retail facilities, but does address drive-through bank facilities; Ms. Chadwick cited the following requirements for drive-through bank facilities from Section 8-220(c) of the Zoning Code: (1) Maximum coverage for all structures and drive- through facilities shall not exceed 25 percent of the site. (2) No structure or paved area shall be located closer than 25 feet to any residentially-zoned property. (3) Driveways or alleys abutting residentially zoned properties shall not be utilized for vehicular access to the drive-through facilities. Ms. Chadwick stated that the developers have proposed the following: 1) using 68 percent of the site, 2) providing zero buffer between the project's drive isle and the residentially-zoned property, and 3) placing a drive-through facility directly abutting a single-family residentially-zoned piece of property under the same ownership; that the proposal submitted would not meet the requirements for a drive-through bank; that a similar site plan submitted for a drive-through bank, open 8 hours per day, would be BOOK 37 Page 11428 02/06/95 6:00 P.M. BOOK 37 Page 11429 02/06/95 6:00 P.M. denied; however, approval is being requested for an operation that will be open 24-hours per day. Ms. Chadwick continued that this is a very intense site; that the retention area was placed outside the boundaries of the proposed COP district in an effort to utilize 35,000 square-feet of commercial space on the site; that the land area zoned RSF-2 was used to figure the land coverage calculations; that the site plan indicates 68 percent lot coverage; however, the lot coverage is 80 percent of the COP area if the RSF-2 zoned retention area is removed from the site; that the Zoning Code allows a maximum of 70 percent lot coverage in the COP zone district; that the site plan indicates open space at 32 percent, but the open space is 20 percent without the RSF-2 zoned property included; that the site plan indicates building coverage at 19 percent, but the building coverage is 22 percent without the RSF-2 zoned property included; that the developer purposely used residential land to make their site plan look more acceptable to the Commission; that approval of a COP zone district site is being requested although all the facilities for the site are not on the COP portion of the site. Ms. Chadwick further stated that the residents to the west feel the property should be rezoned to office and are asking the Commission to be sympathetic to their needs and concerns, hold to what is considered typical and standard land use transition and compatibility issues; that the petitioner owns a vacant site zoned RSF-2 directly behind the proposed site; that approval of the proposal will make developing a single-family subdivision on that RSF-2 zoned property difficult; that the site will probably be used as a commercial loading area and commercial retention pond until such time as the developer comes back to the City to rezone the RSF-2 property to one of the transitional uses that should be in place to begin with; that a vacant piece of residential property does not provide a sufficient buffer to the neighborhood since that land will be developed one day. Ms. Chadwick added that she submits that the difference is minimal between MCI and COP zone districts with regard to site coverage; however, the difference is great with regard to uses, hours of operation, and days of operation, and significant with regard to intensity. Ms. Chadwick cited the following from Section 8-219 of the Zoning Code: The Commercial Office Park (COP) zone is intended to promote a visually appealing "parkway" type uncluttered effect discouraging strip center commercial type development by requiring (park like settings). Ms. Chadwick stated the following quéstions for Commission consideration: 1. Should you impose an intense 24-hour per day use on a site that is adjacent to residential? 2. Should you provide the same protection to the neighborhood to the west of the site that has been afforded to the majority of the other neighborhoods in the City by means of appropriate land use transition? 3. Do the people on the west side of U.S. 41 deserve the same protection that the people on the east side of U.S. 41 received? 4. Does the proposed site plan provide a park like setting? 5. Does the Commission want to approve 24-hour drive isles next to a residential zone district? 6. Is it appropriate to approve an application that suggests that it is okay to skip over what is appropriate land use transition and put a commercial use right next to a residentially zoned piece of property and a very large, well-established neighborhood? Ms. Chadwick cited the following from a memorandum written by Jane Robinson, Director of Planning and Development: The Sarasota City Plan states that the future land use of the subject site will serve the community with either commercial or office uses; therefore, the choice between commercial or office use on the subject site is less important than whether or not it creates an appropriate buffer. Ms. Chadwick stated that she disagrees with Ms. Robinson's statement; that there is a big difference as to whether commercial or office uses are allowed on that site; that whether or not existing residential is buffered from U.S. 41 is a bigger issue; that adverse impacts will be caused from traffic, noise, loading and drive-through areas; that the Commission has to consider adverse influence on living conditions; that Staff has stated that the impacts have been mitigated by landscaping, a wall, and the location of dumpsters; that the landscaping, is somewhat over the minimum requirements, but there is a traffic increase; that the hours of operation that will be associated with the. proposed development is an adverse influence on an existing residential neighborhood. BOOK 37 Page 11430 02/06/95 6:00 P.M. BOOK 37 Page 11431 02/06/95 6:00 P.M. Ms. Chadwick concluded and stated that the site would be more appropriate as an office use, for something allowed in the MCI zone district or more preferably in the OP zone district; that Attorney Merrill has told the Commission they have a choice; that the Commission has the choice to say, "no". Attorney Merrill came forward and asked Mr. Lombardo if he has performed any conditional rezonings in the City of Sarasota? Mr. Lombardo stated that he didn't believe so. Attorney Merrill asked if he prepared traffic considerations for MCI uses similar to those prepared for general office? Mr. Lombardo responded that he had not. Attorney Merrill asked Ms. Chadwick if she has performed any recent conditional rezonings in the City of Sarasota? Ms. Chadwick stated that she had not. Attorney Merrill asked Ms. Chadwick where she got the information that the proposed project would have a 24-hour store since that information had not been entered into the record by the petitioner. Ms. Chadwick stated that she read it in the information provided to her. Attorney Merrill stated that a 24-hour store has never been indicated and has not been entered into the record; and asked Ms. Chadwick who provided her with the information. Ms. Chadwick stated that the information was provided by the City of Sarasota Planning Department Staff. Commissioner Pillot stated that the Staff is saying no to that comment. Ms. Chadwick stated for clarification that the information was received from both her client and from the City of Sarasota. Ms. Patten stated that those statements that the site would be a possible 24-hour operation were made during the neighborhood meeting required by the Comprehensive Plan; that a 24-hour operation is also mentioned in the information packet. Ms. Patten asked Mr. Lombardo to state some of his experience as a traffic engineer. Mr. Lombardo stated that he has been practicing traffic engineering since 1973 and in the State of Florida since 1974; that he has performed approximately 100 traffic analyses of different types usually as part of rezoning hearings; that as president of Lombardo and Skipper, Inc., one of his prime responsibilities is to submit expert testimony primarily in Manatee County; that he has also worked as a consultant in the traffic engineering field for the Town of Longboat Key, the City of Sarasota, the Central Florida Regional Planning Council, and Manatee County; that he has prepared approximately 15 transportation sections for Development of Regional Impacts. Ms. Patten asked Ms. Chadwick to state her experience as a Planner in the areas of zoning. Ms. Chadwick stated that she has extensive experience in land use and zoning work in Manatee County for both Manatee County Government and the City of Bradenton as well as some work in the City of Palmetto; that she has acted on a Manatee County Land Development Technical Advisory Committee with regard to land use, zoning, land development, etc.; that she has experience with site design; that she has been with Lombardo & Skipper, Inc., for 11 years, was with Manatee County Government prior to that, and also has four years experience with another private consulting company. Commissioner Pillot stated that the testimony from the first three speakers took over one hour; that many other speakers have signed up; and asked for the plans of the Chair. Mayor Patterson stated that the Chair cannot guaranteed that the decision will be made tonight; that the first three speakers were given substantially more latitude because they represented the Avondale Residents Association, which can be considered parties to the petition; that she plans a recess after which she assumes individual speakers will limit their comments to five minutes each; however, she does not intend to cut off a speaker who has one or two thoughts remaining when the five-minute time limit has been reached. Commissioner Pillot stated that while a tremendous amount of valuable and professionally competent testimony was given, there was also a gratuitous àmount of repetition; that he hopes that won't be repeated. The meeting was recessed at 8:55 p.m. and the Commission reconvened at 9:10 p.m. Jenefer McArthur, 1715 Prospect Street (34239), stated that she is an eight-year resident of Prospect Street who moved into a beautiful, quiet, treed, downtown neighborhood with many historic homes and whose children walked to three local schools; that she strongly opposes a change in land use for the subject propertyi that the site is a beautifully treed area that acts as a barrier BOOK 37 Page 11432 02/06/95 6:00 P.M. BOOK 37 Page 11433 02/06/95 6:00 P.M. and a baffle to the increasing noise generated on U.S. 41 and by the hospital; that the subject property is more suitable for garden apartments, a library, or a park thereby preserving the aesthetics of the neighborhood; that five pharmacies are located within one mile and another pharmacy is not necessary; that the 100s of nearby residents who chose to live in this beautiful part of Sarasota should be allowed to go on raising children in a downtown area where they can ride their bikes, walk their dogs, walk to school and enjoy the beauty; that tarmac, all night pharmacies, extra traffic, danger, 600-foot retention ponds and mosquitos, etc., are not wanted. Ms. McArthur requested that her neighborhood be preserved. Brian Fitz-Harris, 1917 Bahia Vista (34239), stated that traffic is a major concern and problem in his neighborhood; that the proposed site plan and implementation of the project will enhance the existing problem; that Bahia Vista Street is a 20-foot wide neighborhood street as described in the Sarasota City Plan with an acceptable level of service designated at 1,000 trip per day; that the traffic study commissioned by the City indicates that more than 5,000 trips per day are currently made on Bahia Vista Street; that some form of traffic abatement program is necessary even without consideration of the proposed project; that Olympia Development Group, Inc., has developed a site plan which calls for ingress and egress to the project from both U.S. 41 and the heavily congested area on Bahia Vista Street; that at the first of three PBLP meetings, Mr. Daughters rendered his professional opinion on the project indicating that an entrance and exit on Bahia Vista Street would not be appropriate from a traffic standpoint. Mr. Fitz-Harris displayed a sketch drawing to illustrate the congestion that would occur with vehicles attempting to exit or enter the project on Bahia Vista Street and explained his findings from personally counting the number of vehicles that stack on Bahia Vista Street as the traffic light at Bahia Vista Street/U.S. 41 cycles from red back to red. Mr. Fitz-Harris stated that excluding the peak or rush hours, on the average, 12 or more vehicles traveling east on Bahia Vista Street stopped at that traffic signal; that on average there are 4 to 5 vehicles stopped in the left lane waiting for the light to turn green hoping that the incoming traffic will allow them to turn north onto the seven-lane U.S. 41; that the curb cut on Bahia Vista Street would create congestion; that a grid lock would be created as vehicles attempt to exist the project or enter the project by cutting across two lanes of traffic and would cause additional stacking on U.S. 41 and Bahia Vista Street; that during peak service hours, vehicles stacked up to Yale Avenue or half the way to Osprey Avenue is common; that at certain times of the year traffic is grid locked from U.S. 41 to Osprey Avenue during the peak hours. Mr. Fitz-Harris continued that he is not an expert, but has daily experience with the stacking up and congestion of the vehicles in that area. Mr. Fitz-Harris further stated that in a conversation with him, Mr. Touloumis categorically stated the following two things: 1. that Olympia Development Group, Inc., was not interested in traffic west of Brewer Place on Bahia Vista Street; 2. that the commercial success of the project relied on ingress and egress to Bahia Vista Street. Mr. Fitz-Harris stated that stacking will occur west of Brewer Place; that Olympia Development Group should be concerned as he, and other residents are; that the curb cut on Bahia Vista Street is a bad idea. Mr. Fitz-Harris requested that based on the specific site plan presented, the Commission deny the request for conditional rezoning; and that either in conjunction with or separate from the decision made by the Commission, the City Administration be directed to collaborate with the neighbors to implement a traffic abatement program by a date certain that is long before three years from now. Mr. Fitz-Harris added that the traffic study prepared in relation to the proposed Sarasota High School/Alta Vista Elementary School campus indicated that the intersection at Bahia Vista Street and U.S. 41, based on police reports of the number of incidents occurring at that location, is the most hazardous intersection in the City of Sarasota. Commissioner Pillot requested that Engineering Staff respond as to whether the 5,000 vehicle per day figure mentioned is accurate in the area of Bahia Vista Street where the project is proposed. An affirmative response was given by the Engineering Staff. Ernest Babb, 1886 Bahia Vista Street, explained an Expansion of Commercial Use Into Residential Area board display and stated that the (28,400.4 square foot) retention area will be assessed at an unoccupied residential tax rate, not a commercial tax rate. Mr. Babb referred to the following from pages 24 and 25 of the information packet: Criteria Comments Whether changed or changing The proposal is based on conditions make the passage of pursuing the general the proposed amendment opportunities provided for in necessary. the designated IMA. BOOK 37 Page 11434 02/06/95 6:00 P.M. BOOK 37 Page 11435 02/06/95 6:00 P.M. Mr. Babb stated that the proper comment should be: no, changing conditions have not made this necessary. Criteria Comments Whether the proposed change With appropriate mitigation will adversely influence living measures a zoning change should conditions in the neighborhood. not adversely influence living conditions in the neighborhood. Mr. Babb stated that comments made apparent that the rezoning as proposed will adversely affect living conditions in the neighborhood; that the resulting adverse effects which would occur if mitigation measures were not placed into effect were not listed or attached to the conditional rezoning for prevention in the neighborhood. Criteria Comments Whether the proposed change No problem is anticipated. will create a drainage problem. Mr. Babb stated that the use of residential property to accommodate for the stormwater run off indicates a drainage problem with the COP property; that Staff did not properly comment on the criteria. Criteria Comments Whether the proposed change No evidence has been reviewed will adversely affect property that would verify an adverse values in the adjacent area. effect on property values in the adjacent area. Mr. Babb stated that Staff does not indicate any data had been reviewed to ascertain that property values would be affected; that the data required to comment on the criteria should have been provided. Criteria Comments Whether the proposed change No change is anticipated. will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. Mr. Babb stated that the Staff's response has no foundation; that there is no statement as to the effect of the following: the retention area and securing it for the safety of neighborhood children; traffic on the streets; the inclusion of a 24-hour commercial operation; A increased transient foot traffic; or - site lighting, etc. Richard Smith, 2070 Ringling Boulevard (34237) entered a prepared statement into the record on behalf of the Bay Point Park Neighborhood Association which requested that the City Commission deny Petition Nos. 94-C0-06 and 94-PSD-R, referenced definitions from case law of "substantial evidence" and "competent evidence," and indicated that based on substantial competent evidence presented by the Avondale Residents Association and others, the proposed commercial use rezoning would: be less compatible with the adjoining area than office uses; create a greater traffic problem than office uses; be more likely to adversely affect neighborhood property values than office uses; and/or Mr. Smith stated that if the City Commission determines that the proposed rezoning is inappropriate, consideration should be given to directing the City Administration to prepare a petition to rezone the subject property to the OP zone district; that Attorney Merrill has indicated on the record that he considers the MCI zone district as inconsistent to the City's Comprehensive Plan; that the Commission should request advisement from the City Attorney in that regard apart from the proceeding being held tonight. Brad Gaubatz, 1918 Irving Street (34236), stated that he is a resident in the vicinity of the proposed site and a Registered Architect in the State of Florida; that he is in complete agreement with the Avondale homeowners and strongly opposes the request to rezone the subject parcel; that the rezoning to COP would allow uses such as motion picture theaters that are incompatible with the adjoining single-family zoning. Mr. Gaubatz continued that most of his architectural experience is in projects that have relied heavily on Crime Prevention Through Environmental Design (CPTED) tactics to protect students and the public from unsafe conditions; that he designed both the Florida State and Florida A & M Student Unions in Tallahassee, the Tallahassee Amtrak Depot, the new prototype elementary school for Manatee County and various other school projects; that he is currently the project designer for the new Sarasota County Judicial Center; that the proposed Walgreens building is incompatible with BOOK 37 Page 11436 02/06/95 6:00 P.M. BOOK 37 Page 11437 02/06/95 6:00 P.M. the adjoining single-family neighborhood in part because it generates several CPTED conflicts. Mr. Gaubatz entered his resume and the May 19, 1994, CPTED Field Review of Walgreens into the record. Mr. Gaubatz stated that the Goals adopted by the City in March 1994 included the following: Goal 1 Implement a Crime Plan Goal 2 Preserve Neighborhoods Mr. Gaubatz continued with the following issues relating to the site: A. Drive-through The CPTED Reviewers found that the location of the drive- through window on the west side of the site offers limited opportunity for natural surveillance. The neighbors do not want deliveries or trash on the west side. The limitations per Code regarding drive-through windows at banks would not allow the proposed drive-through. The CPTED Reviewers suggested that the drive-through window be the same type of window construction used by the banking industry which would include a speaker system. The neighbors will be affected not only by the 24-hour, drive- through automobile activity but also noise from the speaker system. B. The block separation wall between zoning district The CPTED Review stated that the block walls at the north and south rear property lines may cause problems with visibility at the entry/exit points. The City requires a six-foot block wall due to zoning. The neighborhood does not want the required six-foot wall and feels it will be an eyesore. The huge vacant field in a quiet neighborhood to the west offers a staging place for crime next to a 24-hour store that sells pharmaceutical merchandise. The six-foot wall surrounding the huge, vacant field offers an excellent escape route throughout the neighborhood. C. Lighting The CPTED Reviewers recommended substantial lighting to deter crime. The Neighborhood wants low-lighting levels because the site is adjacent to single-family residences. Mr. Gaubatz stated that lighting pollution comes from the target, not from the source, therefore shielding a light source from a neighborhood does not work. D. Building Design The building has few windows. Mr. Gaubatz stated that one of the core requirements of good CPTED design is visibility and surveillance; that the proto-typical Walgreens building does not allow someone approaching the building to see inside and conversely the building does not allow someone inside to see the parking lot; that these situations foster crime and anxiety; that the design cannot change because Walgreens must use their walls for merchandising. Mr. Gaubatz continued that the issues raised are "lose, lose" situations; that the proposed site plan is a classic case of a non- compatible use adjacent to a single-family neighborhood; that the drive-through will be a constant source of noise for adjoining houses; that the light will promote crime if handled in a way sympathetic to the neighborhood or provide lighting pollution if designed appropriately for CPTED; that the building design in combination with a block wall will create a worse case formula for crime in his neighborhood. Mr. Gaubatz requested that the Commission reject the proposal. Robert Hodge, 1635 Prospect Street (34230), representing the Loma Linda/Prospect Street Neighborhood entered into the record his resume and a fact sheet which explained encroachment into a residential area, non-compliance of the impervious surface and landscape requirements and other items of non-compliance with the site plan requirements for conditional rezoning. Mr. Hodge stated that he has a Bachelor of Science Degree in Forestry and Wildlife from Virginia Polytechnic Institute and State University; that his 18 years of business experience in the landscape industry began in 1976; that he is the Administrative Director for the Florida Water Wise Council, Inc., a member of the Green Industry Advisory Council to Southwest Florida Water Management District (SWFWMD), and the Chairman of the Landscape Water Budget Pilot Project Subcommittee; that he was an invited participant to assist in developing the CPTED program for the City of Sarasota in 1990 on landscape issues and has been accepted as a candidate to sit for certification as a Registered Landscape Architect. BOOK 37 Page 11438 02/06/95 6:00 P.M. BOOK 37 Page 11439 02/06/95 6:00 P.M. Mr. Hodge referred to the proposed site plan displayed on the overhead projector and explained how the request for rezoning and project plans impact six lots of record, three lots being impacted by the COP rezoning request through a change in lot lines and three affected by the proposed surface water retention area and stated that the total project encroachment into residential area is 50,435.14 square feet. Mr. Hodge compared the subject proposal to the 1989 request from Barnett Bank of Southwest Florida to expand their western lot line westward into the adjacent residential property under the same ownership which had been denied on the basis that the rezoning would be too great an intrusion into the residential area; and stated that by prior precedence and sheer scale of impact, the proposed rezoning request should be declined. Mr. Hodge stated that the impervious surface within the requested COP designation is not in compliance with the COP zoning requirements; that the percent of impervious surface of the proposed site is 81 percent while the maximum lot coverage per Section 8-227 of the Zoning Code is 70 percent. Mr. Hodge continued that the proposed wall and landscape buffer along the common lot line abutting residential property are not between the parking area and other use area as designated in Zoning Code Section 12-26. Mr. Hodge further stated the following Sections of the Zoning Code where there are non-compliances by which the PBLP should not have accepted or approved the Site and Development Plan for Commission consideration: Section 5-11 (a) (9) requirements of a floor plan Section 5-11 (a) (11) requires a landscape plan with specific details Section 8-228 Minimum yard requirements Section 8-230 Signage limitations Section 12-24 Plans (for landscape) Section 12-25 Plant Material Ordinance No. 89-3344 (Tree Protection Ordinance) Jack James, 1810 Lincoln Drive (34236), stated that he is a realtor with Caldwell Banker on St. Armands Circle and referred to the following from page 25 of the information packet: Criteria Comments Whether the proposed change No evidence has been reviewed will adversely affect property that would verify an adverse values in the adjacent area. effect on property values in the adjacent area. Mr. James stated that property values will decrease if the proposed drug store is built in the back yard of residential homes; that property that abuts parking lots is not favored by potential home buyers. In response to the criteria: Whether the proposed change will adversely influence living conditions in the neighborhood, Mr. James relayed a story of the experience he had in New Jersey when the drug store that had opened on the same block as his family's residence was robbed and the perpetrator was found hiding in the bushes on his family's property. Mr. James requested that the Commission deny the petitioner's request. Attorney Merrill came forward and asked if the Closest comparable he has done for the proposed site is in New Jersey? Mr. James responded that it was not. Attorney Merrill asked if any comparable (had been done in this area)? Mr. James stated that the properties which should be used for a comparable have been destroyed or vacated to make way for a project such as the one proposed; that the properties are very old, people have lived in the homes a long time, that obtaining a good comparable is difficult in this area. Attorney Merrill asked if any comparable of this area had been performed? Mr. James stated that he had not; however, a comparable could be prepared for the Commission if they sO desire. Georgia Nicholson, 1839 Alta Vista Street (34236), representing the Avondale Residents Association. stated that the back yard of her property, where she has resided since 1981, abuts Attorney Merrill's yard; that she served on the board of the Avondale Residents Association for five years and is currently president; that the Avondale neighborhood is bounded by U.S. 41 on the east, Bahia Vista Street on the south, Osprey Avenue on the west and Lincoln Drive on the north; that her comments are in response to specific statements made by Attorney Merrill at the January 4, 1995, PBLP meeting. Ms. Nicholson cited the following from the PBLP meeting minutes on pages 202 and 207 of the information packet: Mr. Merrill stated that there were a number of other people who live in the area that he has spoken with who really could care less about it or that would like to see a Walgreens or other store in that area because it would be easier to get to than crossing U.S. 41. BOOK 37 Page 11440 02/06/95 6:00 P.M. BOOK 37 Page 11441 02/06/95 6:00 P.M. : He (Mr. Merrill) stated that he felt there were several individuals, and he did not believe that it was the majority of the neighborhood, that simply did not want to have COP on the site = period. Ms. Nicholson continued that many of the Avondale residents were disturbed by the statements made by Attorney Merrill, and a petition was prepared to demonstrate to the Commission that the Avondale Residents Association Board did, in fact, speak to the neighborhood. Ms. Nicholson presented the petition to the Commission for entry into the record; and stated that the petition was signed by 90 percent of the Avondale residents; that only two of the residents surveyed were in favor of the proposed development; that the two people in favor of the development were not from owner-occupied homes; that 18 signatures were obtained from Lincoln Drive residents, Attorney Merrill's immediate neighbors; that Attorney Merrill's residence was not surveyed. Ms. Nicholson continued that the City is seeking commercial development to enhance the tax base; that based on the Property Appraiser's records, the 33 properties sold in the Avondale neighborhood since 1991 have a combined market value of $5,056,300; that those homes represent less than half of the properties in the neighborhood; that although the market value does not reflect the intrinsic value of the neighborhood, it certainly indicates that the neighborhood is a resource the City should protect; that the Sarasota City Plan states it shall be the goal of the City of Sarasota to maintain a high quality of life by protecting and enhancing the character and quality of the neighborhoods; that the Avondale residents contribute generously to the City's tax base; that the Commission should realize that the older, traditional neighborhoods are an endangered species entitled to the utmost level of protection mandated by the City's Comprehensive Plan. Attorney Merrill objected to the entry of the petition into the record; and stated that the petition is not one of the criteria required under the Zoning Code; that the City Attorney could advise the Commission as to the Snyder decision implications associated with the petition; that the conditions under which the signatures were obtained are not known; that the information told to the people in order to gain signatures for the petition is not known; that the petitioner obtained letters from several people with substantive basis for favoring Walgreens; that the petition has not been seen by the petitioners; that the petition is an example of what the Snydér decision did not want brought to the table. Ms. Patten objected to Attorney Merrill's objection. City Attorney Taylor stated that this procedure is not a judicial process but a quasi-judicial or "sort of" judicial process; that without having seen the petition, the petition does whatever it does, and says whatever it says; that the petition has whatever probative value it has for the City Commission to consider; that Attorney Merrill may submit letters in rebuttal to the petition which would be received as part of the record. Mayor Patterson stated that, as a party to the suit, Ms. Patten, should also be allowed to ask questions. City Attorney Taylor stated that the developer, as well as the Avondale residents, have the primary party status; that Ms. Pattèn should be allowed to make a statement for the record. Ms. Patten stated that the petition should be entered for whatever probative value it may have; that the petition has been admitted to rebut statements made by Attorney Merrill during the January 4, 1995, PBLP meeting; that the petition rebuts a statement made by Attorney Merrill indicating most of the residents of the neighborhood did not care or were in support of building a Walgreens. Attorney Merrill stated that he suspected the petition would be allowed for the record; that he wanted to place his objection on record; that several misstatements are in the petition; that the neighborhood petition indicates Walgreens will be a 24-hour store; that evidence has not been introduced that the proposed Walgreens will be a 24-hour store; that the petition is not signed by a majority of the neighborhood; that there is more than one resident living in the homes surveyed; that only one person from some of the homes signed the petition; that the neighbors have heard only one side of the story; that the petition should be "taken for what it is worth"; that the petitioners do not agree with the petition. Mayor Patterson stated that Attorney Merrill's remarks are taken as part of the record; that the minutes of the PBLP meeting contains a statement from PBLP member Mr. Lindsay asking if the proposed Walgreens would be for 24-hour use; that Attorney Merrill responded that he had no knowledge of a 24-hour use for the store, but that a 24-hour use option was available to the petitioner because there is not a restriction to the hours. Attorney Merrill stated that a 24-hour use option, as with all of the commercial space on U.S. 41, is available since there is no restriction; however, a proposal for a 24-hour Walgreens has not been presented; that correspondence received by the petitioner from Walgreens anticipates the store hours to be 9:00 to 9:00, but the lease does not allow a restriction on the hours. Vice Mayor Merrill stated that advertisements on television feature Walgreens with 24-hour access; that discussions of not restricting BOOK 37 Page 11442 02/06/95 6:00 P.M. BOOK 37 Page 11443 02/06/95 6:00 P.M. hours while television commercials feature 24-hour access raises confusion in people's minds. Attorney Merrill stated that the advertisement timing is unfortunate; that the 24-hour Sarasota Walgreens store will be located at Beneva and Bee Ridge where rezoning for a 24-hour store was received from Sarasota County; that the Walgreens in the proposed development is considered a downtown store and is not anticipated for 24-hour access. Ms. Patten stated that pages 204, 205, 229, 233, and 234 of the information packet also discuss the 24-hour use issue; that the 24- hour use was discussed at the November 1993 neighborhood meeting; that since the City Code does not restrict the hours of operation, the decision should be based on the fact that the store could be opened the maximum number of hours. Commissioner Cardamone asked Attorney Merrill if he agrees with the statement indicating there is no retail on the west side of U.S. 41 from the Hudson Bayou to approximately Crossroads Shopping Center? Attorney Merrill stated that he does not agree nor does the expert planner agree with that statementi that the area west of U.S. 41 from the Bayou to Crossroads Shopping Center is almost all commercial and retail zoning; that in viewing U.S. 41 in that area, retail sites are found on the west side of the road. Commissioner Cardamone asked Attorney Merrill for identification of the retail stores located on the west side of U.S. 41? Attorney Merrill stated that the Waffle House is located on the west side of U.S. 41; that commercial/retail exists on U.S. 41; that any of the zoning could be retail; that the bank at the northwest corner of U.S. 41 and Bahia Vista Street could be retail at any time as it is zoned CN; that the entire length from the bank property to Hyde Park is commercially zoned except for the hospital. Mayor Patterson stated that Attorney Merrill is discussing the zoning whereas Commissioner Cardamone asked about the actual uses. Commissioner Cardamone stated that the petitioner has not requested 24-hour store access; and asked if the petitioner is willing to stipulate that it will not be a 24-hour store operation now or any time in the future? Attorney Merrill stated that the petitioner is not indicating the store will have 24-hour operation, but cannot agree to a stipulation on the record at this time; that the current proposal is not for a 24-hour operation; that the current proposal is for hours of operation from 9:00 a.m. to 9:00 p.m. Commissioner Cardamone stated that the Zoning Code does not enforce limited hours of operation; therefore, the store could be built as a 10-hour per day operation but converted to a 24-hour per day operation some time in the future. Attorney Merrill stated that is correct; that opportunity is available for any operation located along U.S. 41. Belinda Oueen, 1920 Alta Vista Street (34236), and Ishmael Katz, 1891 Prospect Street (34239), who signed up to speak were no longer present in the Commission Chambers. Michael Melnick, 1931 Irving Street (34236). waived his opportunity to speak, C. Alan Anderson, 1823 Prospect Street (34239) stated that his statements and credentials are in the information packet on page 283; that as a registered architect he is against the proposal; that the store is not appropriate; that OP zoning would be more appropriate. Rob Patten, 1862 Alta Vista Street (34236), representing Avondale Residents Association. stated that the residents are in favor of developing the subject property; that the issue regards appropriate land use; that the COP designation is not the best, appropriate land use; that an IMA is an area in transition; that the May Houck IMA is in transition, but not toward commercial development. Mr. Patten referred to a map of U.S. 41 from Hudson Bayou to Siesta Drive and explained the designated four retail/commercial uses on the west side of the road - the Waffle House, Burger King, Amoco, and the Sugar & Spice Family Restaurant; that during a presentation on February 3, 1995, a SMH spokesperson had informed the Association that the present plan is to purchase the Sugar & Spice Family Restaurant, Amoco and Burger King; that the Waffle House would be the only retail/commercial use on the west side of U.S. 41 if SMH's plans are successful; that the Walgreens' proposal is not consistent with the plan to keep the neighborhood residential or for office use; that it is a strip mall under the guise of the COP designation; that a park has not been proposed and there are no offices; that the residents on the east side of U.S. 41 are buffered in a step down zoning; that construction of a Walgreens as proposed does not provide transitional buffering to the neighborhood on the west side of U.S. 41. Mr. Patten continued that SMH is a nigh-intensity use; that the neighborhood has learned to cooperate with the hospital that provides a public service; that placing a Walgreens nearby does not BOOK 37 Page 11444 02/06/95 6:00 P.M. BOOK 37 Page 11445 02/06/95 6:00 P.M. provide the same type of public service; that this Commission should not change what previous Commissions have done to keep commercial uses out of the neighborhood; that the trend of the neighborhood has been toward medical office buildings. Mr. Patten presented the Commission with packets entitled, "Avondale Residents Association Statement of Opposition to Petitions with Supporting Documentation" which included written information substantiating his findings, a listing of office uses and a list of commercial uses on the east side of U.S. 41, and photographs of the office and medical buildings presently found on the west side of U.S. 41, the Waffle House which is a commercial site adjacent to the property the petitioner is requesting to rezone, and the commercially-zoned area on the east side of U.S. 41 which contains the Saba Plaza, a commercial use acceptable in a COP district. Mr. Patten stated that a Saba Plaza storefront owner informed him that the site has conditional rezoning and must shut down by 6:00 p.m.i that pictures of another Walgreens showing the rear loading area and a wall dividing the property from multi- family residential zoning were included in the packet. Mr. Patten continued that the four curb cuts on the subject site mentioned earlier by Attorney Merrill are disingenuous since the curb cuts are from four houses which previously stood on the subject site. Bart Cotten, 451 Woodland Drive (34234), stated that the North Tamiami Trail is a primary example of lack of enforcement in the transitional step zoning; that he is in favor of the redevelopment desperately needed in the City, but a study is not necessary to verify that impossible traffic conditions and drainage problems exist in the subject area; that retention areas will not help; that having worked as a general contractor in Sarasota for 15 years, and having done some land development, he views retention ponds as a "cop-out" for developers and engineers in order to develop a piece of property. Mr. Cotten continued that the Walgreens' representatives see a need for a store in the neighborhood; however, customers to that new store will come from other businesses in the area; that this happened to the downtown area when newer and better shopping centers were built in the County; that the City should not "stab itself in the back." Fred Frederick, 1838 Alta Vista (34236) stated that he is an architect with a background in environmental science who has been practicing in Sarasota for 13 years; that his house has been robbed three times; that the Police Department through the Neighborhood Watch program recommends that the residents learn to recognize each other by sight; that knowing the neighbors is an important weapon against having strangers walking throughout the neighborhood and committing robberies; that vehicles driving through and strangers walking through the area could become a problem if the proposed Walgreens has the potential of becoming a 24-hour operation; that pharmacy drive-through areas are much like bank drive-through areas which have bullet-resistant glass that can withstand a .357 magnum; that security is a concern he has with constructing a pharmacy drive-through in the neighborhood. Teresa Carafelli, 1838 Alta Vista (34236) stated that as a resident of the Avondale neighborhood since 1987, she attended the PBLP meeting which was abominable and embarrassing; that she strongly objects to the intrusion of a commercial site in the neighborhood; that the Commission would probably not like a 7-Eleven Food Store, a bowling alley or bait shop on the corner of North Lodge, South Drive or in Cherokee Park, Hillview or Harbor Acres which are all old, nice-established neighborhoods like Avondale; that she does not understand why Walgreens would want to build a store in this location when the Avondale residents oppose it, and the SMH employees have access to a pharmacy on the premises at which they receive a discount; that when driving through cities, comments are seldom made about the lovely strip mall or the lovely Walgreens; that people talk about the parks, the historic buildings or the trees; that perhaps the City could propose the first park on U.S. 41 and name it after the City Fathers; that the Commissioners were elected on the basis of saving neighborhoods; that the Commission should protect the Avondale neighborhood. Dan Lobeck, 450 South Shade Avenue (34237), representing. Growth- restraint and Environmental Organization (GEO) and self stated that not all development is bad, but this development is not the best use for the property nor the best alternative use available under the Comprehensive Plan; that Attorney Smith and Ms. Patten indicated the law permits disapproval of a use which is allowed under the Comprehensive Plan if competent, substantial evidence supporting a better use for the property is provided; that based on the evidence provided, the Commission can deny the rezoning and site plan petitions and instruct Staff to initiate a rezoning of the property to the OP zone district, a more compatible use with the residences and other properties on the west side of U.S. 41; that a precedent would be established for additional incompatible uses if this proposal is approved; that an expert testified that 380 vehicle trips per day in excess of those for an OP rezoning would be generated by the proposed project; that the study prepared by the expert, Tindale-oliver and Associates, Inc., shows traffic would increase significantly near Shade Avenue in that the peak- hour trips on Bahia Vista from U.S. 41 to Shade Avenue would increase by 13; that Tindale-oliver Associates, Inc., also indicated there is an existing problem on Bahia Vista Street near the project site regarding high traffic volumes and travel speeds; that the Comprehensive Plan establishes a Level of Service (LOS) "C" on Bahia Vista Street between U.S. 41 and Tuttle Avenue; that LOS on that roadway is currently. below "C"; that the Comprehensive Plan indicates current LOS conditions are not allowed to degrade BOOK 37 Page 11446 02/06/95 6:00 P.M. BOOK 37 Page 11447 02/06/95 6:00 P.M. below a "C" and shall be maintained at the adopted LOS standard; that, at a minimum, additional development which causes the least impact permissible under the Comprehensive Plan should be allowed; that traffic reasons alone are competent, substantive evidence to deny and direct an OP rezoning. Mr. Lobeck continued that the site plan has an encroachment into residential property in terms of the retention area; that encroaching into residential property is clearly not permissible under the Comprehensive Plan and under the Zoning Code; that case laws are available to support that there is no estoppel problem and the courts have indicated that local governments are not estopped by the actions of the building officer when the ultimate decision is made by the Commission or when that decision would be contrary to a city's codes and ordinances. Mr. Lobeck further stated that a mistake was make in March 7, 1989, when the future land use map was amended and the CG zone district was removed as an alternative use; that commercial or office had always been indicated as a potential use with the alternative uses being COP, OP, CG or less intensive; that the CG zone district was removed, but the commercial or office option remained; that the proposal for Walgreens was made under a COP rezoning because the CG option was no longer an alternative, but the site is not appropriate for COP zoning; that the request is for site plan and rezoning approval; that the Zoning Code lists COP as a visually appealing parkway and discourages a strip-center, commercial-type development such as the proposal on the table; that the COP district is intended for relatively large-scale, unified, commercial-office developments which would be appropriate on heavily traveled roads; that the proposal should be for an OP rezoning in accordance with neighborhood compatibility, traffic demands, and consistency with the future land use plan; that passing this proposal would be a breach of duty by the Commission to the citizens and indicate that the City desires as much commercial development as possible regardless of the negative impacts on the community interests or in terms of precedent to future development proposals throughout the County. Mayor Patterson left the Commission Chambers at 10:30 p.m.. Virginia Haley, 1646 South Orange Avenue (34239), representing the Coalition of City Neighborhood Associations stated that she is the Chairman of the Coalition of City Neighborhood Associations (CCNA) which represents the following neighborhood associations: Avondale Residents, Bay Island/Siesta, Bay Point Park, Beechwood Estates Bird Key Improvement, Cherokee Park, Cohen Way, East Sarasota, Gillespie Park, Golden Gate Point, Granada Homeowners, Harbor Acres, Indian Beach/Sapphire Shores, Laurel Park, Lido Key Residents, Martin Luther King Jr. Way, Mcclellan Park, St. Armands Residents, San Remo Homeowners, Sarasota North Action Group, and Golden Gate Point; that Leon Avenue, Prospect Street, Maldemere/APlington Streets and Cocoanut Avenue neighborhood groups will be joining soon; that the CCNA took a unanimous vote in opposition of this proposal; that the subject property doesn't affect many of the associations, but passing Ordinance No. 95-3840 would establish a precedent; that the Comprehensive Plan indicates the importance of neighborhoods; that small businesses in neighborhoods drive the economic engines in the City; that other cities in Florida that do not address neighborhoods in their comprehensive plans are amazed at the Sarasota City Plan in which one of the City's major goals is to have strong, vital neighborhoods; that the CCNA feels that if the Commission approves this proposal to retain commercial runoff on residential property or subject the adjacent residential neighborhood to light and noise pollution from squawk boxes and vehicles stacking up waiting to get to the pharmacy, it could happen anywhere in the City; that the owners have other options for development of the subject property that are compatible with the area and for which neighborhood support would be received; that Commission denial of proposed Ordinance No. 95-3840 would send a strong message throughout the City that neighborhoods are important. Johnny Nugent, 400 North Tamiami Trail (34236) stated that he is against this project; that there is already a Walgreens at the Ringling Shopping Center; that the City does not need any more commercial space. Mayor Patterson returned to the Commission Chambers at 10:33 p.m. Michael Town, 1708 Prospect Street (34239) representing the Prospect Street Homeowners Association, stated that he owns a home in the surrounding neighborhood where he lives with his wife and 5-year-old son; that the Prospect Street Homeowners Association was formed to deal with this rezoning issue; that the homeowners take great pride in their neighborhood; that the Association is concerned with the repercussions. and potential intrusions into one of Sarasota's most wonderful and historical neighborhoods by having a Walgreens in the neighborhood, even if it is not a 24-hour operation. Mr. Town presented to the Commission a petition in opposition to proposed Ordinance No. 95-3840 signed by 128 people living on Bahia Vista, Loma Linda, Prospect, Palmetto and Floyd Streets, and stated that the issue is not whether all 128 people live in the same house or whether two people live in one house; that the issue is that 128 people signed the same petition; that in conjunction with the previously submitted petition, a survey was conducted from Floyd Street to Hudson Bayou; that 98 percent of the people surveyed, without any coercion, signed the petition because the proposal is not a "win-win" situation; that the property should be developed; however, another 24-hour, seven day a week store in addition to the current Kash n' Karry and Waffle House establishments would create BOOK 37 Page 11448 02/06/95 6:00 P.M. BOOK 37 Page 11449 02/06/95 6:00 P.M. a monster; that the future plans for Phase II of the proposal are not known; that the 22,000 square foot building is a mystery; that the property should be developed, but used for doctors' offices and professional buildings that would be empty after 5:00 p.m. during the week and closed on the weekends; that this type of development would leave the neighborhood unaffected; that the neighborhood west of U.S. 41 is a very special neighborhood where children can be raised, where life is quiet and safe, and where Sarasota can be enjoyed to the fullest. Mr. Town requested that the Commission keep the neighborhood that way. Mayor Patterson closed the public hearing. Mayor Patterson stated that the petitioner will now be provided an opportunity for rebuttal. Attorney Merrill and Mr. Franklin came before the Commission. Attorney Merrill stated that the material to be presented is still evidence; therefore, the public hearing should remain open; and asked for clarification as to the closing of the public hearing. City Attorney Taylor stated that the terminology used by Mayor Patterson does not limit the record to the statements made during that segment of the proceeding; that anything said during the proceeding is part of the record, i.e. the statements made by Attorney Merrill prior to the Mayor opening the public hearing is part of the record of these proceedings. Commissioner Cardamone asked if the Commission will have an opportunity to question members of the public who spoke earlier? City Attorney Taylor stated that the Commission may ask question of the citizens without reopening the public hearing; that those questions and responses would be part of the record. Attorney Merrill stated that four hours of testimony was given; and requested a five-minute recess to arrange his notes for a succinct rebuttal. Commissioner Cardamone stated that she would appreciate a five- minute break to organize her notes. The meeting was recessed at 10:40 p.m. and the Commission reconvened at 10:50 p.m. Commissioner Atkins left the Commission Chambers at 10:50 p.m. Mayor Patterson stated that it is Close to 11:00 p.m.; that many members of the public are present to speak or listen to the important library issue which is scheduled to follow this public hearing. Mayor Patterson suggested that Agenda Item VII-2, regarding conceptual approval of the three-party agreement concerning the library location be postponed to another day since it is one of the most important decisions the Commission will make. Commissioner Atkins returned to the Chambers at 10:52 p.m. On motion of Vice Mayor Merrill and second of Commissioner Pillot, it was moved to postpone the library issue and place it on the next Commission meeting agenda. Commissioner Cardamone asked for comment by the City Manager. Mr. Sollenberger stated that he would prefer to have the library issue settled at this meeting; however, the meeting is running late and everyone would not be in the proper frame of mind to approach a new topic; however, the library item should be addressed before the next regularly scheduled Commission meeting on February 21, 1995. The maker of the motion, Vice Mayor Merrill, with the approval of the seconder, Commissioner Pillot, amended the motion to give the City Manager discretion as to when the library issue would be placed on the agenda. Commissioner Cardamone stated that she is willing to stay this evening and discuss the library issue. Commissioner Pillot stated that he would be willing to stay to discuss the library issue since it is an issue of critical importancei however, he supports postponing the Library item since the issue is of critical importance to the City and the decision deserves both time and clear, rested minds which he suspects the Commissioners will not have after the current topic is finished. Mayor Patterson called for a vote on the motion to postpone Agenda Item VII-2 regarding the library issue to a meeting date to be determined at the discretion of the City Manager. Motion carried unanimously (5 to 0): Atkins, yes; Cardamone, yes; Merrill, yes; Pillot, yes; Patterson, yes. City Clerk and Auditor Robinson stated that the people who had signed up to speak on the item will be notified of the rescheduled date. Attorney Merrill cited the following from page 16 of the Florida Supreme Court decision on Board of County Commissioners of Brevard County V. Jack Snyder as attached to a memorandum from the City Attorney to the City Manager: BOOK 37 Page 11450 02/06/95 6:00 P.M. BOOK 37 Page 11451 02/06/95 6:00 P.M. : yet the fact that a proposed use is consistent with the plan means that the planners contemplated that use would be acceptable at some point in the future. We do not believe the Growth Management Act was intended to preclude development but only to ensure that it proceed in an orderly manner. Upon consideration we hold that a land owner seeking to rezone property has the burden of proving that the proposal is consistent with the Comprehensive Plan and complies with all procedural requirements of the Zoning Ordinance. At this point, the burden shifts to the government board to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose. In effect, the landowners traditional remedies will be subsumed within this rule and the Board will now have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory or unreasonable. Attorney Merrill cited the following from the letter entered into the record by Richard Smith, Attorney for the Bay Point Park Association: In light of the recommendation of the City Planning Board, it could be argued that the petitioner has met its initial burden of demonstrating that its rezone petition is consistent with the Sarasota City Plan and the procedural requirements of the Zoning Code. Attorney Merrill stated that the PBLP and the City's professional Staff found that the petition was consistent or at least met the policies in the Comprehensive Plan which pertain to this conditional rezoning and site plan; that the petitioners have met all the procedural requirements of the Zoning Code at which point, according to the Snyder decision, the burden shifts to the governing board to demonstrate that the existing zoning classification "accomplishes a legitimate public purpose"; that a zoning district that is not consistent with the Comprehensive Plan cannot possibly accomplish a legitimate public purpose. Attorney Merrill continued that the MCI zone district is not consistent with the Comprehensive Plan as currently written; therefore, MCI zoning cannot accomplish a legitimate public purpose which may have been Attorney Smith's point; that the Commission has to show its decision is not arbitrary, discriminatory or unreasonable and that the decision will accomplish a legitimate public purpose; that even with evidence the Commission could not show that MCI zoning would meet that type of criteria; that he does not disagree with the discussion in Attorney Smith's letter concerning competent, substantial evidence or the referenced statements; that competent, substantial evidence under the case law does not include opinion testimony from lay people or opinion testimony from experts if the opinion is not substantiated by facts in the record; that the majority of public comment heard at this meeting was merely opinion testimony either by lay people who were not qualified as experts or by people who wanted to be qualified as experts that did not give substantial, competent evidence or facts to support their opinions. Attorney Merrill continued that architects gave conclusive statements such as: This is going to intrude into the neighborhood. This is going to affect property values. This is going to adversely affect living conditions. This will increase crime. Attorney Merrill stated that no statistics were provided to back up the architect's statementsi that the Snyder decision requires statistics to back up statements and no evidence was provided to prove that property values will decrease as a result of the project; that unsubstantiated testimony was given from a realtor, not a Member of the Appraisal Institute (MAI), who did not do any comparables other than a story about a town in New Jersey; that market issues were discussed, yet no studies on market issues were provided; that people indicated the Walgreens development would draw business from other areas of the City, i.e., downtown, the Ringling Shopping Center, Midtown Plaza, etc., but included no information to back these claims; that there was ample opportunity to present substantiated back-up materials. Attorney Merrill stated that the proposed Walgreens was never presented as a 24-hour store; that a compromise solution, against his client's better business judgment, will stipulate, at this time, the hours for the store will be 9:00 a.m. to 12:00 a.m.; that the hours of business was an important issue raised by the neighborhood associations and discussed by the Commission; that the petitioners are trying to appease neighborhood issues; that facts heard at the PBLP public hearing and not placed on the record should not be considered as competent, substantial evidence on which to base a decision; that the professional Staff spent nearly 1.5 years on the project; that the proposal was changed and the site plan modified on numerous occasions at the request of the neighbors and City Staff; that every change the petitioners made is now being attacked; that the original proposal was for a Walgreen Drug Store because it had the least impact; that the additional building was added at the request of neighbors and the insistence of the City Staff; that the petitioners do not know who the tenants of the other building will be; that the loading and drive-through areas were changed several times; that the landscaping was designed with input from the neighbors; that several neighbors verbally agreed to the project if BOOK 37 Page 11452 02/06/95 6:00 P.M. BOOK 37 Page 11453 02/06/95 6:00 P.M. the traffic abatement plan was supported and additional landscaping was done; that the traffic abatement program should be in effect prior to construction if possible; that the petitioners have followed through on every promise made to the residents of the Avondale neighborhood, but the neighbors have not reciprocated. Attorney Merrill stated that in rebuttal to some of the statements made by Mr. Lombardo and Mr. Lobeck regarding traffic, he will question, Mr. Tindale, the City's traffic consultant. Commissioner Cardamone asked Mr. Sollenberger if the proper designation for Mr. Tindale was used. Mr. Sollenberger stated that the City hired Mr. Tindale to perform a traffic study, but the study was paid for by the applicant. Mr. Franklin stated that every land use proposal requires, by the City's standard operating procedure, that a consultant meet with City Staff and the petitioner to agree on an appropriate methodology and a proper traffic network; that the consultant devises a fee proposal and work scope for approval by the Engineering Department, and the petitioner is directed where to send a payment for the consultant's services; that the consultant works directly with the City and interfaces with the petitioner to provide plans, access issues, etc. Mr. Sollenberger stated that the standard operating procedure has been in effect for the last five to seven years since the Growth Management Act requirements were established. Steve Tindale, of Tindale-oliver and Associates, Inc., and Asim Mohammed, Assistant City Engineer, came before the Commission. Attorney Merrill asked Mr. Tindale to explain his traffic engineering and traffic planning background? Mr. Tindale stated that over a 15 year period, he worked as an Assistant City Traffic Engineer, a City Traffic Engineer, and a Public Works Director directing City Traffic Engineers; that he subsequently worked in a private traffic engineering firm for 5 years, and has operated his own traffic engineering firm for the past 5 years. Attorney Merrill asked Mr. Tindale how long he has been a Traffic Engineer? Mr. Tindale responded, "25 yéars." Attorney Merrill asked for which city Mr. Tindale worked as a Traffic Engineer? Mr. Tindale responded, "the City of Tampa.' " Attorney Merrill asked Mr. Tindale to estimate the number of projects completed in the State of Florida with regard to concurrency? Mr. Tindale responded, "hundreds." Attorney Merrill asked Mr. Tindale if he has completed more concurrency projects than any other Traffic Engineer he knows? Mr. Tindale stated that there is a good chance that he has. Attorney Merrill asked Mr. Tindale if he addresses rezoning issues on a, regular basis? Mr. Tindale stated that he has addressed land use amendments, rezonings, comprehensive plans and concurrency systems for communities. Attorney Merrill asked Mr. Tindale if he has handled any other traffic issues in the City of Sarasota? Mr. Tindale responded, "yes." Attorney Merrill asked Mr. Tindale if he is very familiar with the City and County of Sarasota? Mr. Tindale responded, "yes." Attorney Merrill asked Mr. Tindale if he is familiar with the traffic patterns in the City and County of Sarasota? Mr. Tindale responded, "yes." Attorney Merrill asked if Mr. Tindale stands by the following statement from page 7 of the traffic study prepared by Tindale- Oliver Associates, Inc., for the City: The evaluation revealed that no roadway segments were impacted by the proposed retail development. Mr. Tindale stated that he stands by the statement; that the concurrency rules of the City were followed and, basically, none of the roads were impacted by the 4.5 percent set criteria. Attorney Merrill asked if Mr. Tindale stands by the following statement from page 13 of the traffic study prepared by Tindale- Oliver Associates, Inc.: BOOK 37 Page 11454 02/06/95 6:00 P.M. BOOK 37 Page 11455 02/06/95 6:00 P.M. Due to the low number of project trips anticipated to travel west of the site on Bahia Vista Street (<20 new trips), the proposed development will have a minimal affect on the abatement program and the alternative measures previously presented by the City of Sarasota. Mr. Tindale stated that he stands by the statement. Attorney Merrill asked if Mr. Tindale stands by the following statement from page 14 of the traffic study prepared by Tindale- Oliver Associates, Inc.: Based upon the results of the analyses undertaken herein, the existing roadway network will be adequate to accommodate traffic generated by the Walgreens Plaza and background traffic with no roadway improvements required. In view of the above findings, approval of the proposed development is recommended. Mr. Tindale stated that he stands by the statement. Attorney Merrill asked if that statement is the final conclusion in the report? Mr. Tindale responded, "yes." Attorney Merrill referred to Appendix B-2 in the traffic study prepared by Tindale-oliver Associates, Inc., and asked if that chart indicates the following: 1) there are only 18 new project p.m. peak trips projected to travel on Bahia Vista Street west of Brewer Place, 2) there are only 8 new project trips projected to turn left into the Bahia Vista Street access, and 3) there are only 4 new project trips projected to travel on Prospect Street? Mr. Tindale stated that is correct during the peak hour. Attorney Merrill distributed copies to the Commission and entered into the record as Petitioner's Exhibit #8 a chart entitled Comparison of Trip Generation Potential prepared by Tindale-oliver Associates, Inc. Mr. Mohammed displayed the chart on the overhead projector. Commissioner Cardamone asked if this chart was previously presented to the Commission? Attorney Merrill stated that the chart was not previously presented to the Commission; that the chart was requested during a conference call with Mr. Mohammed based on the PBLP's request. Commissioner Cardamone asked if the chart is new evidence? Attorney Merrill stated that is correct; that the chart is in rebuttal to the comparison chart that Mr. Lombardo presented; and asked Mr. Tindale to explain the chart. Mr. Tindale explained the purpose of the chart and the basis for the results, and stated that the medical office and drive-in bank land uses are equal to retail uses based on the total number of trips. added to the road; that the peak hours for retail uses is usually 4:00 p.m. to 6:00 p.m. whereas the peak hours for office uses are continuous from 8:00 a.m. and 5:00 p.m. Commissioner Cardamone asked for the criteria used in determining peak hours? Mr. Tindale referred to the chart and stated that the total trips for the site have been indicated; that retail uses have 158 trips during peak hour, medical offices have 158, and the drive-in bank has 164; that retail peak hour does not match the roadway peak hour; that the office uses peak at the same time the roadway peaks. Commissioner Cardamone asked if there is a constant flow of traffic with retail uses rather than a peaking? Mr. Tindale stated that when traffic peaks and the percent of the peak are two separate issues; that office uses generate 9 to 11 percent of the traffic during its peak period; that retail uses generate approximately 8 percent of the traffic during its peak period. Commissioner Cardamone stated that she agrees with Mr. Tindale about the peak hours of retail. Mr. Tindale stated that retail does not have as dramatic a peak as office. Commissioner Cardamone stated that since there is no true peak in retail as compared to other uses, there must be a steady flow of traffic for retail; that Bahia Vista Street already carries five times the amount of traffic it should support; and asked if the additional trips will be a continuation of the constant traffic stacking the neighborhood already encounters? Mr. Tindale stated that on a 24-hour basis, the retail use would generate approximately the same amount of traffic as a drive-in bank and medical office uses. Commissioner Cardamone stated that she is not referring to a 24-hour basis. BOOK 37 Page 11456 02/06/95 6:00 P.M. BOOK 37 Page 11457 02/06/95 6:00 P.M. Mr. Tindale stated that the retail use would generate about the same as a medical office and a drive-in bank during one cycle of use. Commissioner Cardamone asked if the Institute of Transportation Engineers (ITE) manual considers retail as a 24-hour road use? Mr. Tindale stated that the ITE manual does not consider retail a 24-hour road use; that the traffic counter for medical offices would register more often than the traffic counter for retail uses if traffic counters were placed on the road from midnight to midnight; that during the midnight to midnight count, retail counts would be almost equal to the medical office counts made between 8:00 a.m. and 5:00 p.m.; that the retail traffic is more level and continuous and not as peaked as office traffic. Vice Mayor Merrill stated that retail, medical office and a drive- in bank have about the same traffic; and asked if Mr. Tindale's judgement is based on the chart labelled Exhibit #8? Mr. Tindale stated that the judgement is being made by the chart. Vice Mayor Merrill referred to the chart and stated that the drive-in bank has 913 new trips and retail has 1,021, a 10 percent increase; that the increase in new trips for retail compared to medical offices is 25 percent. Mr. Tindale stated that the percent differences are based only on trips; that the Impact Fee Ordinance indicates office trip lengths between 6 and 8 miles and retail trip lengths between 2.5 and 3 miles; that the numbers indicates that the medical offices and offices, which have the same trip rates with twice the lengths, actually put more volume on the roadway. Vice Mayor Merrill stated that doubling the trip lengths confuses the traffic study for the immediate area. Mr. Tindale stated the neighborhoods two to three miles away are being compared. Vice Mayor Merrill stated that the areas of Bahia Vista and Prospect Streets were studied; that the analysis does not show the traffic rates are equal; that retail traffic rates are 15 percent more than a drive-in bank; that retail is double the percentage of general office. Mr. Tindale stated that based on the number of trips across the driveway, Vice Mayor Merrill's statement is correct; that there may be a 10 or 15 percent difference in the total trips across the driveway versus the traffic on the roadway. Vice Mayor Merrill stated that he understands although vehicles may be entering on Webber Street or Fruitville Road; and asked if the immediate area is being studied? Mr. Tindale stated that the immediate site is the issue; that studying the turning movements at Bahia Vista Street and U.S. 41 shows that land uses along that major roadway are drawing people past other intersections; that 75 to 80 percent of the vehicles drive through on Bahia Vista Street, while 8 percent turn right and 9.5 percent turn left onto U.S. 41. Commissioner Cardamone asked which direction the vehicles were travelling? Mr. Tindale stated that the traffic is travelling east bound; that entering the site increases the right turns from vehicles traveling north and south on U.S. 41 by 25 to 30 percent; that the conclusion, including traffic diversion and concurrency, is that many cars are not driving down Bahia Vista Street and making right and left turns onto U.S. 41; that his comparison of trips across the driveway to the overall total volume was based on his opinion that the total volume and the total trips are more important to the driveway in that the 25 to 40 percent of vehicles making a right turn onto U.S. 41 are not included. Commissioner Cardamone stated that if 80 percent of the people heading east on Bahia Vista Street drive through the intersection at U.S. 41 turning into the Bahia Vista Street access proposed on the site plan would be extremely difficult. Mr. Tindale stated that he did not provide a detailed review of the driveway since he did not design the driveway, and offered his general reaction based on the comments and analysis provided. Mr. Tindale stated that the driveway is more than 200 feet from the intersection; that the left-turn queue is in the east-bound lane; that the vehicles turning left onto the Bahia Vista Street driveway will not be turning through traffic attempting to turn left; that the design of the intersection has the potential of creating a left-turn storage lane going into the site; that this is not necessary since there is not a safety issue and the City's goal is not to increase, but to decrease the capacity level on Bahia Vista Street; that in his professional opinion, the driveway does not pose a safety problem; that vehicles will not be making a left-turn into the site through a left-turn queue or leaving the site through a left-hand storage; that the intersection could be designed to create a left-hand storage into the site to increase the capacity level, but he would not recommend that strategy for any of the potential developments, office or retail. BOOK 37 Page 11458 02/06/95 6:00 P.M. BOOK 37 Page 11459 02/06/95 6:00 P.M. Commissioner Cardamone stated that the left-turn situation just described may conceal the fact that access to the left-turn lane is not available until the intersection of Brewer Place and Bahia Vista Street is passed; that vehicles in the stack beyond Brewer Place are also somewhat inclined to make a left turn when approaching the light. Mr. Tindale stated that 14 percent of the vehicles make left turns at the intersection which is 45 cars per hour, or less than one vehicle per minute. Commissioner Cardamone referred to the vehicles stacked, waiting to go through the intersection; and asked how those vehicles would enter the driveway? Mr. Tindale stated that a minimum amount of time is available for a vehicle to cross through a queue on. each side, as at any other intersection on U.S. 41; that there could be a safety problem if Bahia Vista Street had two lanes west bound, but there is only one lane and vehicles will be able to cross when the light turns red; that congestion may be created, but there will not be a safety problem. Vice Mayor Merrill stated that he will not be able to analyze tonight all the information presented during the meeting; that he suggests that the Commission stop asking questions at this time, allow Attorney Merrill to complete his presentation on substantial, competent evidence, continue the meeting to give the Commissioners an opportunity to réview the information, and then ask their questions at the follow-up meeting. Vice Mayor Merrill continued that the new legal burden of the Snyder decision makes his decision difficult; that he must check to be sure the information on which he may base his decision has been entered into the record; that analysis of hearsay or opinion versus expert opinion is required; that he needs legal guidance as to the rights a Commission has or does not have; that he has seen politicians vote "no" on something without substantiating the case and courts have overturned the ruling; that courts should not be deciding the City's rezoning cases. Mayor Patterson stated that the people who have been in the audience since 6:00 p.m. would prefer resolution tonight; that the time is 11:25 and per the City ordinance, the Commission will have to vote at 11:30 on whether or not to continue the meeting. Attorney Merrill continued with his questions for Mr. Tindale regarding the Comparison of Trip Generation Potential chart. Attorney Merrill asked what time of day is the typical peak hour of travel on Bahia Vista Street? Mr. Tindale stated that the peak hour of the intersection of Bahia Vista Street and U.S. 41 was identified in the report as 4:45 p.m. to 5:45 p.m. Attorney Merrill asked if those were the times referenced in the P.M. Peak Hour Trips column on the chart? Mr. Tindale stated that 4:45 p.m. to 5:45 p.m. is the peak hour of the roadway; that the P.M. Peak Hour Trips column indicates the number of trips off of the land use during the peak hour. Attorney Merrill asked if the peak hour is when the most queuing would occur? Mr. Tindale stated that is correct. Attorney Merrill asked what use would have the most impact based on this chart? Mr. Tindale stated that the a medical clinic and the drive-in bank would have the largest impact. Attorney Merrill asked if the medical clinic and the drive-in bank would have more of an impact than the specialty and discount retail proposed for this site? Mr. Tindale stated that is correct, in terms of trips. Attorney Merrill asked if any other uses make more of an impact than specialty and discount retail? Mr. Tindale stated that the medical clinic, medical office and drive-in bank have over 100 trips each during the peak hour. Attorney Merrill asked for the impact on this site if the Bahia Vista Street access were closed? Mr. Tindale stated that without the Bahia Vista Street access, the vehicles would have no option to exit onto a side street to enter a signalized intersection and make a left turn onto U.S. 41; that median control to prohibit left-turns along U.S. 41 may be considered by the City in the future; that severe conditions will occur if access to side street signalization is not provided and median control. to prohibit left turns along U.S. 41 is put in place. Attorney Merrill asked whether the engineering preference would be to have a protected turn onto U.S. 41 for a large 4-acre site, whether used as MCI, commercial or office? BOOK 37 Page 11460 02/06/95 6:00 P.M. BOOK 37 Page 11461 02/06/95 6:00 P.M. Mr. Tindale stated that a protected left-turn onto U.S. 41 would be preferred no matter what the use. Attorney Merrill asked if a protected turn would be preferred to reduce traffic conflicts, accidents, etc.? Mayor Patterson stated that she does not understand the questioning about what the effect would be of closing off access to Bahia Vista Street. Attorney Merrill stated that one of the effects he would propose is that if the Bahia Vista Street access were closed, the site would not have access to the Bahia Vista Street traffic light which is called a protected turn in order to go north on U.S. 41; that the other access point at Prospect Street with no traffic signalization is considered an unprotected turn; that vehicles existing the site would have to drive across all the lanes on U.S. 41 in order to turn. Mayor Patterson asked if Attorney Merrill finds it undesirable to close Bahia Vista Street? Attorney Merrill stated that he had asked if Mr. Tindale found it undesirable to eliminate access to Bahia Vista Street; that Mr. Tindale from an traffic engineering standpoint found it undesirable. Mayor Patterson stated that one of the potential abatement measures was to close Bahia Vista Street. Attorney Merrill stated that closing Bahia Vista Street west of Brewer Place was planned as an abatement measure; that his questions were in regard to closing the Bahia Vista Street access, not the whole street. City Auditor and Clerk Robinson stated that the time was 11:30 p.m. On motion of Commissioner Cardamone and second of Vice Mayor Merrill, it was moved to continue the meeting. Commissioner Pillot stated that he is willing to complete the current topic and anything else the City Manager must have an answer immediately. Mr. Sollenberger stated that the current topic should be the last order of business addressed by the Commission at this meeting; that a workshop is scheduled for Monday, February 13, which starts at 4:00 p.m.; that a special meeting could be scheduled before the workshop to complete the business from this meeting's agenda that needs to be transacted. Vice Mayor Merrill stated that the meeting should not run past 12:00 midnight. Ms. Patten requested that she be given the opportunity to submit some brief statements during the same session at which Attorney Merrill's remarks are made. Mayor Patterson stated that Ms. Patten's point is very well taken. Attorney Merrill stated that he had planned to go into another subject matter after the questioning of Mr. Tindale was completed; that if Ms. Patten has questions for Mr. Tindale, perhaps the meeting should break after the final questioning of Mr. Tindale. Mayor Patterson asked Ms. Patten if her intent was to cross-examine Mr. Tindale? Ms. Patten stated that she would like Attorney Merrill to address the specific issues of testimony he wants to rebut; that he is entering new documents into the record and opening new subjects as he did at the PBLP; that her traffic consultant is prepared to state that Mr. Tindale has not disagreed with anything her traffic consultant has said; that Attorney Merrill is getting into unnecessary information which is confusing the Commission; that she is not disagreeing with what Mr. Tindale is saying but is disagreeing with what he is not saying which were the points she made in her presentation; that Attorney Merrill should discontinue the new traffic evidence in regard to these issues and stick to the quick points for rebuttal; that she could rebut some quick points and then the meeting could be closed. Mayor Patterson stated that the meeting should go forward. Commissioner Pillot stated that the Order of Presentation schedule provided to the Commission, was rigidly followed and does not provide for further input from the neighborhood; that the Order of Presentation indicates the following after the public hearing is Closed: petitioner rebuttal, any Staff comments, and comments by the Commission. City Attorney Taylor stated that the Order of Presentation cited by Commissioner Pillot is correct; that once rebuttals begin, they tend to continue inevitably; that the rebuttals tonight have gone as far as the rebuttals need to go; that the statements being produced are no longer rebuttals, but new testimony; that the process is getting very labored and detailed which is not appropriate; that the evidence presented was written in the report and did not need to be re-presented, nor was a witness required. Commissioner Pillot stated that asking Attorney Merrill to limit his rebuttal may be appropriate. BOOK 37 Page 11462 02/06/95 6:00 P.M. BOOK 37 Page 11463 02/06/95 6:00 P.M. Mayor Patterson agreed; and stated that a new document was submitted by Attorney Merrill. Attorney Merrill stated that new documents were submitted during the entire presentation made by the neighborhood; that he could not predict exactly what the neighborhood associations would propose or that they would offer an office comparison; that his statements and questioning was a direct rebuttal to the comparison; that the neighborhood associations are emphasizing total new trips while he is emphasizing p.m. peak trips; that the emphasis of his presentation is not based on new information. City Attorney Taylor asked Attorney Merrill if his rebuttal to the traffic study is complete? Attorney Merrill stated that he has finished with questioning Mr. Tindale. City Auditor and Clerk Robinson stated that the motion on the floor to continue the meeting until this subject is completed. Commissioner Pillot asked what the Chair will rule with respect to the neighborhood representatives being allowed to return to the table? Mayor Patterson stated that she would like Ms. Patten to limit her rebuttal in response to Exhibit #8 to a couple of minutes and would like Attorney Merrill to limit his comments also. Commissioner Pillot asked if Mayor Patterson will set a time limit for Ms. Patten. Mayor Patterson stated that a time limit for the Ms. Patten's rebuttal will be two minutes. Commissioner Pillot stated that he accepts the two-minute limit on the rebuttal to be given by Ms. Patten. Commissioner Cardamone stated that the point of view of the constituents and the citizens of the neighborhood is just as important as the petitioner's view. Vice Mayor Merrill stated that he may want more information from people once he has read all the materials handed out during the meeting. Mayor Patterson asked if Ms. Patten would feel comfortable in rebutting Attorney Merrill's statement in only a couple of minutes? Ms. Patten stated that she could keep her rebuttal short. Mayor Patterson called for a vote on the motion to continue the meeting until the topic is completed. Motion failed (3 to 2): Atkins, no; Cardamone, yes; Merrill, no; Pillot, no; Patterson, yes. Mayor Patterson stated that a motion must be made or the meeting will be adjourned. On motion of Vice Mayor Merrill, it was moved to continue the meeting until the presentations are complete, that the meeting be adjourned and a final decision be made at a later meeting. Motion died for lack of a second. Mayor Patterson stated that if a majority of the Commission will not agree to continue the meeting until the subject is completed and the majority will not agree to continue the meeting at all, the meeting will be discontinued in the middle of this particular exchange. Commissioner Cardamone stated that there is a duty to the citizens to complete the matter this evening. Mayor Patterson stated that she agrees. Vice Mayor Merrill stated that governments frequently make decisions too quickly, only to have them reversed by the courts. Mayor Patterson stated that the Commission could agree to finish this section of the topic and then discuss again if the meeting should continue. On motion of Vice Mayor Merrill and second of Commissioner Cardamone, it was moved to extend the meeting through the presentation. Commissioner Pillot stated that the Mayor limited the rebuttal of Ms. Patten to two minutes; and asked if the intent of the motion was to continue with rebuttals of rebuttals or to continue with Attorney Merrill's presentation? Mayor Patterson called for a vote on the motion to continue with Attorney Merrill's presentation and any rebuttal thereof. Motion carried (4 to 1): Atkins, yes;. Cardamone, yes; Merrill, yes; Pillot, no; Patterson, yes. Attorney Merrill stated that Roger Hettema, a State certified general appraiser who is a designated MAI and Senior Residential Appraiser (SRA), will rebut the numerous statements made, not supported by evidence, regarding market values and how the project would negatively impact the property values of the neighborhood. BOOK 37 Page 11464 02/06/95 6:00 P.M. BOOK 37 Page 11465 02/06/95 6:00 P.M. Attorney Merrill distributed copies and entered into the record Mr. Hettema's resume and a hard copy and board display of a series of maps depicting values of residential property adjacent to commercial properties which were labelled Petitioner's Exhibits #9 and #10. Mr. Fitz-Harris came before the Commission as a concerned citizen and stated that new material is being presented which was available much earlier in the evening; that Attorney Merrill, by manipulating the process, is rehashing and presenting material which the public does not have an opportunity to comment on. Mayor Patterson stated that she can appreciate Mr. Fitz-Harris' comment; that a realtor had previously stated an opinion; that she is not sure why Attorney Merrill feels it necessary to rebut since the realtor did not place any specifics into the record; that she does not understand why Attorney Merrill finds it necessary to place something into the record which is too long to study at this time. Attorney Merrill stated that he wishes to place Mr. Hettema's testimony and documentation into the public record because the petitioners want to win the case. Ms. Patten approached the Commission table. Commissioner Merrill stated that there is no longer any order to the meeting; that anyone can pick up a microphone and talk; that the meeting is becoming an abomination of parliamentary procedure. Mayor Patterson asked Ms. Patten to sit down. Commissioner Cardamone stated that she spent at least five hours of her Sunday afternoon reading every word in the information packet; that she strongly objects to new evidence being presented when the ground rules stated the rebuttal would not contain new evidence. Attorney Merrill stated that he is within the rules which the Commission previously established; that no objections were made to the numerous pages of new information presented by the neighborhood associations. Commissioner Cardamone stated that the neighborhood associations - information was included in the information packet. Attorney Merrill stated that he was not provided with the neighborhood associations - backup prior to this meeting. Mayor Patterson asked City Attorney Taylor to advise the Commission as to the procedure to follow. City Attorney Taylor stated that the information presented by Attorney Merrill has much more detail than necessary; that Attorney Merrill's point is well taken in that a speaker came before the Commission and presented an opinion regarding property values; that Attorney Merrill did not have an opportunity to rebut that opinion because he had not heard it prior to this evening; that the Commissioners have drawn a conclusion as to how worthwhile the evidence provided by that speaker was; that Attorney Merrill has the right to state for the record a rebuttal to the testimony, but half an hour should not be spent qualifying an expert and reviewing a detailed appraisal. Attorney Merrill stated Mr. Hettema's qualifications are listed on the resume submitted; that he has not taken time to qualify any of the experts presented. City Attorney Taylor stated that it is within the discretion of the Chair as to whether or not a presentation by an appraiser should be warranted at this time. Mayor Patterson stated that she does not feel it is warranted; and suggested that the document be submitted for the record as it exists. Attorney Merrill stated that the document does not include all the information the Commission needs to have; that in order for the material to qualify, Mr. Hettema must make his conclusions known and explain how he came to the conclusions; that the opposing party has had. five hours of time to his one hour of rebuttal. Mayor Patterson stated that from everything she knows in regard to the Snyder decision, a realtor making a statement that property values would depreciate would not be adequate in a court of law to substantiate that property values will deteriorate; that neighbors expressing the opinion that property values will deteriorate would not be adequate testimony in a court of law; that property value complaints must have been brought up at other public hearings regarding this parcel; that the new information being presented should have been submitted for the information packet. Attorney Merrill stated that the neighbors have promised at every meeting something would be submitted regarding property values; that the petitioners were not going to raise the property values issue unless the. neighbors brought it up; that the neighbors brought the issue up for the first time at this meeting; that the presented materials are being used as rebuttal instead of during the case in chief. Attorney Merrill requested that the appraisal presentation which will take only 10 minutes be allowed. BOOK 37 Page 11466 02/06/95 6:00 P.M. BOOK 37 Page 11467 02/06/95 6:00 P.M. Mayor Patterson stated that she will disallow the appraisal presentation; that City Attorney Taylor or other Commissioners can decide to overrule. Attorney Merrill strongly objected and stated that disallowing his presentation is denying the petitioner due process. City Attorney Taylor stated that it is within the Mayor's rights to make the ruling; that the objection is duly noted. Attorney Merrill asked if Mr. Hettema is allowed to testify? Mayor Patterson asked if Mr. Hettema is being denied the right to testify against the opinion previously stated that property values will go down? Attorney Merrill stated that the Commission does not know the content of Mr. Hettema's testimony; that the handouts are merely the backup for Mr. Hettema's testimony. Mayor Patterson stated that Mr. Hettema should have testified in the beginning. Attorney Merrill stated that the position being taken by the Commission on this issue is highly extraordinary. Commissioner Atkins stated that the Commission is basically in court; that denying a person the right to testify and rebut makes the case more tenuous as it relates to defending the City's decision; that the case already looks terrible and should not be jeopardized any further. Mayor Patterson asked if Commissioner Atkins would prefer to hear the testimony? Commissioner Atkins stated that he is willing to finish this segment of the proceeding with whatever it takes. Vice Mayor Merrill stated that the Commission should receive information submitted from all sources since the City will be in court if the Commission votes "no"; however, if the presentation of information will take an hour to present, he would prefer calling another meeting to continue discussion. City Attorney Taylor asked Attorney Merrill how many people he planned to have testify? Attorney Merrill stated that Mr. Hettema will testify and then he and Mr. Franklin will wrap up the rebuttal. Mayor Patterson asked how long the testimony and wrap up will take? Attorney Merrill stated that testimony from Mr. Hettema will take five minutes, and Mr. Franklin will require 10 minutes, depending on the questions; that the presentation would have been completed by this time had it started before this discussion. Commission Pillot stated that he is in favor of following the original agenda, permitting the petitioner to rebut. Mayor Patterson stated that she has been overruled and will allow Attorney Merrill to submit the rebuttal; that Attorney Merrill should keep to the time limits given; that she will refer to City Attorney Taylor at the end of the presentation for comment on the appropriateness of allowing Ms. Patten to speak. Mr. Hettema came before the Commission and stated that the rules of professional ethics will not permit him to write a letter or give an opinion without doing research; that his client, the petitioner, did not tell him how to approach the project; that the results of the research were not pre-determined; that the scope of the study was to search for any adverse effect on market value when in proximity to commercial zoning; that the results of the study also gave results for office zoning. Mr. Hettema referred to the board display and stated that there is a residential subdivision on 17th Street and Honore Avenue which was built after an adjacent shopping center was established; that the values of the homes placed in the back portion of the subdivision showed no perceivable difference in sales than the homes closer to the shopping center. Commissioner Cardamone stated that she is interested in the city neighborhoods, not subdivisions located in the County. Mr. Hettema stated that examples in the County are referenced to demonstrate residential development which was developed adjacent to established commercial zoning. Mr. Hettema referred to and explained the various maps which depicted residential developments in The Woods, Sarasota Crossing, The Landings in Oyster Bay, areas West of Tamiami Trail, Granada, and Alta Vista areas. Mr. Hettema stated that the sales in the record show no discernable difference in market values for residences located closer to or abutting commercial developments; that properties purchased in the areas referenced will sell at a profit; that properties in the Avondale neighborhood are in demand and will have not a problem selling; that based on the sales investigated, a positive or negative statement should not be made that the commercial impact would affect property values. Attorney Merrill asked Mr. Hettema for an opinion, based on the comparables, if the COP proposal would adversely affect property values in the neighborhood to the west? BOOK 37 Page 11468 02/06/95 6:00 P.M. BOOK 37 Page 11469 02/06/95 6:00 P.M. Mr. Hettema stated the COP zoning placed on the property would not negatively affect the values in the adjacent neighborhood; that the values in the neighborhood are established on the basis that people want to live in those locations. Attorney Merrill asked Mr. Hettema if placing COP rather than OP zoning on the property would make a difference based on his findings? Mr. Hettema stated that from the standpoint of value, COP or OP zoning would not make a difference. Attorney Merrill asked if there were any impacts, could the vacant residential property behind the subject property absorb those potential impacts? Mr. Hettema referred to the Burton Lane map in Exhibit #10 and stated that the homes in the new development on Burton Lane have higher asking prices than properties in the surrounding neighborhood; that he feels residential homes could successfully be placed on the vacant residential property proposed to separate the commercial development from the existing residential property. Attorney Merrill asked if the residential homes placed on the vacant parcel would have a greater or lesser value than the surrounding neighborhood, assuming the properties would be comparable in size? Mr. Hettema stated that a home with comparable square footage and decorated with Spanish or Mediterranean-type decor, could probably get equal or greater value. Attorney Merrill stated that Mr. Franklin will address land use and neighborhood issues in rebuttal. Mr. Franklin stated that speakers tonight made the following comments about the proposal: 1) the proposal is for a strip- commercial mall, 2) it a speculative project, and 3.) a precedent would be established if the proposal is approved; that those comments are not applicable to this proposal; that the main concern when the Comprehensive Plan was amended to include the May Houck IMA, was not related to the designation of the subject parcel for COP or OP zoning, but whether or not the intervening parcel would be zoned residential multi-family; that the property owner is attempting to develop the site and the speakers are expressing comments as if the zoning designation is a new issue; that the petitioner's proposal is clearly consistent with the Comprehensive Plan. Mr. Franklin referred to site vicinity maps of Royal Palm Plaza, a University Parkway development, and a Frultville/lockvood Ridge Road development (Petitioner's Exhibit #13) to explain the similarities between those developments and the proposed site plan; and stated that three other IMAs in the City have been approved for COP zoning; that COP zoning was approved in the north side of the City and should be approved on Bahia Vista Street and U.S. 41; that the University Parkway parcel did not have any tenants designated when construction began; that the subject parcel has a contract for purchase and a lease with Walgreens which indicates the project is not speculative; that, in good faith, the petitioners included the 22,000 square foot Phase II in order to address questions raiséd by residents and City Staff; that the residents and City Staff also requested that the petitioners clearly establish conditions and evaluate potential impacts; that the petitioners did this voluntarily. Mr. Franklin continued that in rebuttal to Ms. Chadwick's comments regarding transitional land uses, there is nothing in the Comprehensive Plan or the Zoning Code that suggests a zoning district should be used for a transitional land use; that the petitioners did provide a transition; that the petitioners have provided the stormwater retention area, the wall, and the proposed landscaping as a buffer. Mr. Franklin cited the following from the Staff report on page 10 of the information packet: the future land use of the subject site will serve the community with either commercial or office uses. Therefore, the choice between commercial or office use on the subject site, is less important than whether or not it creates an appropriate buffer. Mr. Franklin further stated that the City Staff, in their technical and professional opinion, indicates the proposal does meet that criteria. Mr. Franklin cited the following from the Staff report on page 20 in the information packet: The Development Review Committee has reviewed petitions 94-CO-6 and 94-PSD-K and have found that they meet the applicable code requirements, with the exception of the Engineering Department with regard to mitigation alternatives for Bahia Vista Street. Mr. Franklin continued that the mitigation alternatives were addressed under a separate memorandum; that the professional and technical Staff of the City extensively reviewed for 1.5 years the proposal and proposal modifications and found all applicable code requirements were met; that the proposal is consistent with the Comprehensive Plan; that the petitioners have gone beyond what is BOOK 37 Page 11470 02/06/95 6:00 P.M. BOOK 37 Page 11471 02/06/95 6:00 P.M. necessary to meet their burden to address technical requirements of the Zoning Code and concerns of the neighborhood. Attorney Merrill stated that the parcel should be rezoned to COP; that MCI is not a consistent use in the Comprehensive Plan categoryi that the traffic study proves there is no impact on Bahia Vista Street; that only 18 P.M. peak trips will travel west of Brewer Place on Bahia Vista Street; that the other uses in comparison to this proposal would increase the traffic problem; that a medical clinic, currently allowed in a MCI zone contains 145% of the P.M. peak hour trips that are generated by retail; that medical office is allowed in the office district and COP and generates 124% higher P.M. peak rates on Bahia Vista Street; that a drive-through bank generates 140% more P.M. peak trips than retail; that office uses attract longer trip lengths which impacts more road miles per trip which doubles the impact on the street; that CG and other commercial uses were eliminated in a compromise effort and COP was adopted for this use; that the neighborhood took a position that CG, CN, and COP areas would be allowed except for use as a gas station; that at the PBLP, the neighbors changed the commercial stipulation to include COP only; that the neighbors did not want Multiple-Family Residential (RMF) on the back parcel and wanted to retain it as Single-Family Residential (RSF); that the Comprehensive Plan does not state that a district must be a combination of office and commercial; that the height of the proposed building is 27 feet, lower than some of the residential buildings; that the traffic abatement plan is acceptable to the petitioners; that the petitioners would provide bike racks on the property; that the petitioners would provide sidewalks and crosswalks at Bahia Vista Street and Brewer Place; that deliveries will only be made during daylight hours; that the lease is stipulated that the store will be a Walgreens and the petitioners do not want to limit the store to a Walgreen Drug Store. Mr. Franklin stated that Mr. Patten submitted a handout to the Commission; that he does not know if the handout is the same one in the Information Packet; that he does not know if the photographs Mr. Patten presented to the Commission are the same photographs in the Information Packet; that he does know if the photographs presented at the PBLP are the same photographs Mr. Patten presented to the Commission at tonight's meeting; that there is a significant distinction in the Walgreens on Bee Ridge Road from the petitioner's proposed Walgreens; that the Walgreens on Bee Ridge is an in-line store which is part of a larger shopping center; that the photographs were taken over a four to five-foot wall, not a six-foot wall; that a person could look over the wall into the maintenance service yard which services tractor trailers in the backyard of the shopping center; that it was brought up at the PBLP meeting that it is inappropriate to show the Bee Ridge Walgreens photographs; that the proposed Walgreens is a stand-alone store; that the proposed Walgreens will have a small service yard behind the store; that he was surprised this issue came up during the proceeding and apologizes for not addressing the issue earlier this evening. Attorney Merrill stated that the petitioner, to continue to follow through on promises made, has asked the City to provide a traffic abatement plan on Bahia Vista Street between Brewer Place and Orange Avenue by September 30, 1995;. that he appreciates all the time spent on this issue. Vice Mayor Merrill stated that it would seem the mileage distance being used on the West of Trail map on Exhibit D of Exhibit #9 comparisons is not adequate; that it would seem the more logical dividing line would be Osprey Avenue to see if there was an average price differential between east of Osprey versus west of Osprey; that on Exhibit B of Exhibit #9 the Sarasota Crossing Center contains a neighborhood which he has examined and the price differentials shown are if the home abuts commercial or single- family homes; that the developer has decided what the market would price as premiums; that the developer has decided the homes not abutting the shopping center are on the market for a higher price; that it would indicate a developer, who studies the market, determines there is a difference in the market value when a residence abuts a shopping center versus another residence; and asked if Mr. Hettema's data is properly segmented near Osprey Avenue and U.S. 41 on the West of Trail map on Exhibit D of Exhibit #9? Mr. Hettema stated that he did not intend to indicate there would be no effect if a property were adjacent to a commercial area; that the point is, logically, that the houses immediately adjacent to a commercial area could be affected; that if time permitted, instances could be shown where the opposite çould be proved, such as the house behind Simple Sam's. Vice Mayor Merrill stated that he requested examples from the Sarasota Crossing subdivision. Mr. Hettema stated that the Sarasota Crossing subdivision has different premiums; that there is a $1,000 premium in those areas where the houses abut other houses; that there are five lots for sale adjacent to the shopping center at premiums because the lots are larger; that if the biggest house was placed on a lot with a premium, the house would sell for $135,000 to $138,000; that the houses clearly away from the commercial area are selling for approximately the same price. Vice Mayor Merrill stated that he is familiar with the Sarasota Crossing subdivision; that in the marketplace there clearly is a perception that having a commercial area adjacent to a house has a negative impact although it is sometimes difficult to prove; that BOOK 37 Page 11472 02/06/95 6:00 P.M. BOOK 37 Page 11473 02/06/95 6:00 P.M. Mr. Hettema has stated he could not prove either way from the data collected that the prices near the commercial area are the same as the prices away from the commercial area; however, there is data which indicates the marketplace is at a premium when located away from a commercial area. Mr. Hettema stated that he is not denying the market places a premium on properties away from commercial areas; that he would not indicate a person could build a house next to a shopping center and not have a possible effect on the house's value; that regarding the subject property, if there is any impact, it will be on the properties located on the 300-foot wide residential piece, not on the established neighborhoods behind or to the north of Bahia Vista Street and U.S. 41. Attorney Merrill stated that Mr. Hettema has testified that the data collected does not indicate whether a person would want to live next door to an office or a commercial area; that everyone has a different opinion regarding residential purchases; therefore, the data collected cannot conclude whether a person would purchase a house directly abutting a commercial area. Mr. Hettema stated that he did not study McClellan Park and homes closer to Orange Avenue because of the higher-value of these homes; that he interviewed six people; that one woman, whose home abuts the Crossroads Shopping Center, stated she fully expects to make more money on the property when Saks and Publix are built; that the woman moved near the Crossroads Shopping Center to be in the south side school district; that two other people, Close to the commercial area, chose to live in the neighborhood because of the shopping area; that the established trend is that these homes are getting more valuable every day. Commissioner Cardamone asked if homes in the Avondale subdivision were reviewed house by house as Mr. Hettema did in the Woods subdivision? Mr. Hettema stated that he did look at the homes in the Avondale subdivision house by house; that the homes are indicated on the map in Exhibit #9. Commissioner Cardamone asked if Mr. Hettema noticed a difference in the value of homes on Bahia Vista Street between Brewer Place and Osprey Avenue as opposed to the values of homes in the interior of Avondale? Mr. Hettema stated that two homes on Osprey Avenue showed markedly lower prices per square foot and were valued at $110,000 and one for $53,000. Commissioner Cardamone stated that it is not necessary to list the prices of the homes on Osprey Avenue; that she had asked if Mr. Hettema had noticed a trend and is chagrined she has a packet of material which does not include information for the neighborhood the Commission is most interested in. Mr. Hettema stated that the material is on his board display. Commissioner Cardamone stated that the information is not included in the packet. Mr. Hettema stated that whèn hired for this job, he did not know who the objecting party was; that he believed the opposition was from a different neighborhood (he pointed to a neighborhood on the board display.) Commissioner Cardamone stated that the neighborhood he pointed to is one of the neighborhoods the Commission is interested in. Mr. Hettema referred to a board display and stated that he learned this morning the main objection was coming from this neighborhood and added that information at the last minute. Commissioner Cardamone stated that it is both neighborhoods that Mr. Hettema pointed to on the board display which are in opposition to the commercial area; that the neighborhoods behind the subject property and those to the north and south of the property are in opposition to a commercial area; that it is unusual that all this data was presented and the most pertinent information was not provided; that perhaps Mr. Hettema did not understand, and if so, she is sorry. Mayor Patterson stated that the Commission is dealing with general principles. Attorney Merrill stated that the board display could be reduced and copies distributed to the Commission; that the information has been entered into the record. Mayor Patterson stated that she would like a copy of the board display. Attorney Merrill stated that Mr. Hettema will make copies of the board display for each of the Commissioners. Commissioner Cardamone stated that the principle involved is that testimony was given that a commercial area may create lesser values in that particular Avondale section which was not addressed in the rebuttal. BOOK 37 Page 11474 02/06/95 6:00 P.M. BOOK 37 Page 11475 02/06/95 6:00 P.M. Attorney Merrill stated that it was addressed in the rebuttal; that Mr. Hettema had stated it would not create lesser values. Mayor Patterson asked Ms. Patten to address the Tindale-oliver Associates, Inc., study. Ms. Patten came before the Commission and stated that when she was asked over an hour ago if two minutes would be adequate to rebut Attorney Merrill's presentation, she had said "yes"; that the same process occurred at the PBLP meeting when Attorney Merrill used the rebuttal process to present new witnesses, new documents and new evidence; that she has concerns about the quasi-judicial soundness of the process; that Mr. Tindale's remarks basically supported the analysis of the neighborhood associations - traffic engineer; that Mr. Franklin's comments do not rebut the professional analysis of Ms. Chadwick; that the expert opinion of Mr. Lombardo, Ms. Chadwick and herself were the focus of the presentation, not the comments of the broker made during the public hearing; that neighbors testified to specific small issues as professionals or by direct observation which is substantial, competent evidence; that Mr. Hettema gave his own professional, personal opinion which is not much different from what was heard from the speakers during the public hearing; that she has not reviewed Mr. Hettema's submittals, but he did not give any indication that comparables were made by examining specific units in neighborhoods before and after the location of - a commercial area; that the evidence and testimony from the homeowners is more than adequate to support a decision to deny the rezoning; that the Snyder decision allows options in making a decision; that other issues in the Comprehensive Plan should be examined; that the big picture should be examined; that Vice Mayor Merrill indicated there may not be adequate evidence; that the Commission has heard rebuttal from the petitioners but there is no chance to adequately rebut Attorney Merrill; that the record is adequate to support a decision that the Commission may make this evening; that in the interest of due process and the Snyder decision, the petitioner just had an hour and 10 minutes to present new material which she has not had the opportunity to rebut; that in two minutes she could not adequately respond to an hour and 10 minutes of evidence; that this is the result of the Snyder decision which people feared; that neighborhood associations are no longer able to come to the table and present evidence. and address their Commissioners; that the petitioner is given all the opportunity to exercise their rights and the neighbors are being pushed aside; that if this neighborhood in Sarasota cannot bring to the table what it takes to convince the Commission that it has provided substantial, competent evidence there is no hope for the rest of Sarasota County; that there are neighborhoods which could never put together the expertise that this neighborhood is paying for; that her time is pro bono but the citizens paid for some of the experts; that she could adequately rebut the new evidence presented by Attorney Merrill if time was allowed; that if she were advising her own Board of County Commissioners, she would indicate there is adequate evidence on the record to support a decision covering any of the options presented; that it would be a disservice to the neighborhoods to force an issue without providing the opportunity for a fair cross examination and rebuttal of the evidence presented by Attorney Merrill in the last hour and 10 minutes. Attorney Merrill stated he objects to Ms. Patten in that she is doing exactly what the Commission has asked the Attorneys not to do. City Attorney Taylor stated that there is no need for any rebuttals; that it is time for the Commission to deliberate based on the information listed in the record. Commissioner Merrill stated he agreed with City Attorney Taylor. Mayor Patterson stated that the motion of the Commission was at this point the meeting would disband and allow time for examination of the record to prepare for discussion at another meeting. Commissioner Cardamone asked for the ground rules about reconvening in order to make a decision on this issue? Mayor Patterson stated that she is not sure the Commission could re-call people to the table; that City Attorney Taylor indicated the problem with the Snyder decision is. it did not give any ground rules; that since the public hearing has been closed, only the Commission would speak at this time. City Attorney Taylor stated that during deliberations, even during the public hearing process, inquiry of a party for additional information is acceptable; that inquiry of additional information is. also acceptable without reopening the public hearing or having cross examinations. Commissioner Cardamone asked City Attorney Taylor if, in his professional opinion, there is enough information on the table to make a decision? City Attorney Taylor stated that from his perspective there is enough evidence but cannot answer for an individual Commissioner. Commissioner Cardamone stated that she understands City Attorney Taylor can only speak for himself and she only wanted his opinion; that she would prefer to make a decision before ending the meeting. Commissioner Pillot stated that he agrees with City Attorney Taylor; that the evidence presented is significant and substantial, both qualitatively and quantitatively; that the Commission could profit from reading the evidence submitted; that he is ready to BOOK 37 Page 11476 02/06/95 6:00 P.M. BOOK 37 Page 11477 02/06/95 6:00 P.M. enter into a Commission discussion; that he agrees that any Commissioner may present questions to any party; that the decision should be made when the Commissioners' minds are more Clear since it is almost 1:00 a.m.; that a discussion should be held at another time and then proceed with a vote. Commissioner Atkins stated that there has been sufficient information presented; that the final decision should be. made at a later date as it is nearly 1:00 a.m. Mayor Patterson stated that if the majority of the Commission indicates there is sufficient evidence on the table, the decision should be made at another meeting without impacting on the schedule of the next meeting. Vice Mayor Merrill asked when the minutes would be available? City Auditor and Clerk Robinson stated the minutes would be available on Monday, February 13, 1995, or Tuesday, February 14, 1995. Mayor Patterson stated that the Commission would have four to five days to review the record. Commissioner Cardamone stated that delaying the decision will force a re-discussion and rehash of all the information at another meeting; that there will be no time savings or any different decision at a later date. Commissioner Pillot stated that he agrees with Commissioner Cardamone; that he would review the minutes as he reviews the minutes for any other meeting; that he will not review the minutes to gather more information in order to make a decision on this issue. Mayor Patterson stated that she agrees with Commissioner Pillot. Mr. Sollenberger asked if the Commissioners would prefer to. meet at an earlier time for the February 21, 1995, meeting because of the large agenda? Mayor Patterson stated that she is agreeable to meeting at an earlier time for the February 21, 1995, meeting. Mr. Sollenberger asked if the Commission would prefer to discuss the library issue on Monday, February 13, 1995? Commissioner Pillot stated that he agreed the library issue should be discussed on Monday, February 13, 1995. Mr. Sollenberger stated that the library meeting could be held prior to the previously scheduled Special Meeting; that the Staff will contact everyone once a time is arranged for the February 13, 1995, meeting. 7. ADJOURN (AGENDA ITEM XII) #5 (1275) There being no further business, Mayor Patterson adjourned the meeting at 12:53 a.m. Moro aluson NORA PATTERSON, MAYOR ATTEST: Billy E Rebenson BILLY E.CROBINSON, CITY AUDITOR AND CLERK BOOK 37 Page 11478 02/06/95 6:00 P.M.