MINUTES OF THE REGULAR SARASOTA CITY COMMISSION MEETING OF APRIL 1, 1996, AT 6:00 P.M. PRESENT: Mayor David Merrill, Vice Mayor Mollie Cardamone, Commissioners Jerome Dupree, Nora Patterson, and Gene Pillot, Deputy City Manager V. Peter Schneider City Auditor and Clerk Billy Robinson, and City Attorney Richard Taylor ABSENT: City Manager David Sollenberger PRESIDING: Mayor David Merrill 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. CHANGES TO THE ORDERS OF THE DAY = APPROVED #1 (0030) through (0097) City Auditor and Clerk Robinson presented the following Changes to the Orders of the Day: A. Remove under New Business, Item No. VIII-21, Recision Re: Adopted motion of March 18, 1996, to approve the acceptance of $10,000 donation to the City for the replanting of native vegetation in North Lido Park. B. Add under New Business, Item No. VIII-3, Approval Re: Proposed settlement of Hathaway VS. City of Sarasota mediation. C. Add under Unfinished Business, Item No. VII-1, Discussion Re: Fountain Equipment Structure - Marina Jack. Commissioner Pillot asked for clarification of Item A. City Auditor and Clerk Robinson stated that Laurence Saslaw has withdrawn his proposal to donate funding for the removal and replacement of exotic trees at North Lido Park; therefore, action by the Commission is not necessary. Mayor Merrill asked if the Commission had any objections to the Changes to the Orders of the Day. Mayor Merrill stated that hearing no objections, the Changes to the Orders of the Day are approved by unanimous consent. 2. APPROVAL OF MINUTES RE: MINUTES OF THE SPECIAL CITY COMMISSION MEETING OF MARCH 8, 1996, AND REGULAR CITY BOOK 39 Page 12968 04/01/96 6:00 P.M. BOOK 39 Page 12969 04/01/96 6:00 P.M. COMMISSION MEETING OF MARCH 18, 1996 - APPROVED AS CORRECTED (AGENDA ITEM I) #1 (0097) through (0127) Mayor Merrill asked if the Commission had any changes to the minutes. Vice Mayor Cardamone referred to draft page 12; and stated that her comment referred to excessive absenteeism, not excessive "attendance." Mayor Merrill stated that hearing no additional changes, the minutes of the special City Commission meeting of March 8, 1996, and regular City Commission meeting of March 18, 1996, are approved as corrected by unanimous consent. 3. BOARD ACTIONS: REPORT RE: HISTORIC PRESERVATION BOARD'S REGULAR MEETING OF JANUARY 9, 1996 = SET PETITION NO. 94-HD- 10 FOR PUBLIC HEARING IN CONJUNCTION WITH THE SPECIAL EXCEPTION PROCESS. (AGENDA ITEM II-1) #1 (0127) through (0197) Michael Taylor, Deputy Director of Planning and Development, and Robert Town, Chairman, Historic Preservation Board, came before the Commission. Mr. Town presented the following item from the Historic Preservation Board meeting of January 9, 1996: 94-HD-10 - H.B. Williams Residence Mr. Town stated that Philip Skirball, petitioner, has applied for historic designation of the structure located at 1509 South Orange Avenue; that the Sarasota County Department of Historic Resources staff recommended approval; that the Historic Preservation Board unanimously recommends to the Commission approval of Petition No. 94-HD-10 based on criteria (a), (d), and (e) as contained in Ordinance No. 86-3019, Section 15-14( (1). On motion of Commissioner Patterson and second of Vice Mayor Cardamone, it was moved to receive the January 9, 1996, Historic Preservation Board Report and to set Petition No. 94-HD-10 for public hearing in conjunction with the special exception process. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. 4. CONSENT AGENDA NO. 1: ITEM NOS. 1 AND 2 - APPROVED (AGENDA ITEM III-A) #1 (0194) through (0256) 1. Approval Re: Award of contract and authorize the Mayor and City Auditor and Clerk to execute a contract to Jackson & Associates General Contractors, Inc., Sarasota, Florida, (R.F.P. #96-53) in the amount of $118,404 for the construction of a police substation at Gillespie Park for the Public Safety Department/Police Division 2. Approval Re: Authorize the Mayor and City Auditor and Clerk to execute a contract with Post, Buckley, Schuh & Jernigan, Inc., Sarasota, Florida, (R.F.P. #96-49) to provide engineering services as the Engineer of Record for the City of Sarasota Public Works pepartment/Vtilities Division Commissioner Patterson requested that Item No. 1 be removed for a question prior to the Commission's taking a vote. Commissioner Patterson stated that allocation of $118,404 for a police substation in Gillespie Park is an amount greater than expected; and asked for the per-square-root cost of construction. Stanley Carter, Captain, Public Safety Department, and Collette McKenna, Barger & Dean Architects, Inc. came before the Commission and stated that the size of the structure is approximately 1,200 square feet; that five curbside parking spaces will also be constructed. Commissioner Pillot stated that the cost is approximately $100 per square foot. Deputy City Manager Schneider stated that the Administration recommends approval. On motion of Commissioner Dupree and second of Vice Mayor Cardamone, it was moved to approve Consent Agenda No. 1, Items 1 and 2. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. 5. CONSENT AGENDA NO. 2: ITEM 1 (RESOLUTION NO. 96R-876) - ADOPTED; ITEM 2 (RESOLUTION NO. 96R-883) = ADOPTED; ITEM 3 (ORDINANCE NO. 96-3920) - ADOPTED (AGENDA ITEM III-B) #1 (0262) through (0320) City Auditor and Clerk Robinson read proposed Resolution Nos. 96R-876 and 96R-883 in their entirety and proposed Ordinance No. 96-3920 by title only. 1. Adoption Re: Proposed Resolution No. 96R-876, appropriating $20,000 from the unappropriated fund balance of the General Fund to advance funds to Sarasota County to expedite three storm drainage capital BOOK 39 Page 12970 04/01/96 6:00 P.M. BOOK 39 Page 12971 04/01/96 6:00 P.M. improvements: Bayshore Circle, 45th Street, and Bayshore Road, etc. 2. Adoption Re: Proposed Resolution No. 96R-883, appropriating. $88,404 from the Special Law Enforcement Fund (Forfeitures) to fund construction of the new Gillespie Park substation; etc. 3. Adoption Re: Second reading of proposed Ordinance No. 96-3920, providing for the conditional rezoning from the Commercial, Intensive (CI) Zone District, Sarasota County zoning, to Commercial Intensive (CI) City of Sarasota zoning of the following described real property: a parcel of land lying on the northeast corner of Bee Ridge Road and U.S. Highway 41; said parcel is known as the Boston Market with a street address of 3875 South Tamiami Trail; granting Final Site and Development Plan approval for Application 96-PSD-B; etc. (Title Only) (Petition Nos. 96- CO-02 & 96-PSD-B, R & A Food Services, Inc., c/o Annis, Mitchell, Cockey, Edwards and Roehn, P.A.) On motion of Commissioner Patterson and second of Commissioner Pillot, it was moved to adopt Consent Agenda No. 2, Items 1 through 3 inclusive. Mayor Merrill requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. Mayor Merrill requested City Auditor and Clerk Robinson to explain the public hearing process. City Auditor and Clerk Robinson stated that at this time petitioners have 15 minutes to address the Commission and 5 minutes for rebuttal; that any citizen who has signed up to speak has 5 minutes. All individuals wishing to speak during the public hearings were requested to stand and were sworn in by City Auditor and Clerk Robinson. 6. PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 96-3921, PROVIDING FOR THE CONDITIONAL REZONING OF PREVIOUSLY ANNEXED PROPERTY FROM RMF-1 SARASOTA COUNTY ZONE DISTRICT AND RSF-3 CITY OF SARASOTA ZONE DISTRICT, TO RMF-1 CITY OF SARASOTA ZONE DISTRICT ON THE ENTIRE PARCEL OF REAL PROPERTY DESCRIBED AS FOLLOWS: A PARCEL OF LAND LYING ON THE EAST SIDE OF SOUTH TUTTLE AVENUE BETWEEN ARLINGTON STREET AND HILLVIEW STREET; SAID PARCEL IS KNOWN AS THE EVANGELICAL FREE CHURCH OF SARASOTA WITH A STREET ADDRESS OF 1899 SOUTH TUTTLE AVENUE: GRANTING FINAL SITE AND DEVELOPMENT PLAN APPROVAL FOR APPLICATION 96-PSD-A; ETC. (TITLE ONLY) (PETITION NOS. 96-CO-01 & 96-PSD-A, GARY W. HUDSON, CHAIRMAN OF THE BOARD OF TRUSTEES, EVANGELICAL CHURCH OF FLORIDA) - PASSED ON FIRST READING (AGENDA ITEM IV-1) #1 (0369) through (0476) Michael Taylor, Deputy Director of Planning and Development, came before the Commission referred to a Zoning and Subdivision Map to identify the subject parcel; and stated that Petition No. 96-CO-01 has been filed to conditionally rezone the property at 1899 South Tuttle Avenue, located on the east side of Tuttle Avenue between Arlington and Hillview Streets, from the City of Sarasota Residential, Single-Family (RSF-3) and Sarasota County Residential, Multiple-Family (RMF-1) zone districts to the City of Sarasota RMF-1 zone district; that Preliminary Site & Development Plan 96-PSD-A, filed in conjunction with the conditional rezoning petition, shows the existing Evangelical Free Church on the site; that the Church property was annexed into the City on July 1, 1993; that a Comprehensive Plan amendment making the site eligible for Medical, Charitable, Institutional (MCI) zoning was approved in May 1994; that RMF-1 is a less intensive zone district; that the Planning Board/Local Planning Agency (PBLP) at its meeting of January 3, 1996, found 96-CO-01 and 96-PSD-A consistent with the Sarasota City Plan and the Tree Protection Ordinance and recommended approval to the Commission. Deputy City Manager Schneider stated that the Administration recommends passing proposed Ordinance No. 96-3921 on first reading. Mayor Merrill opened the public hearing. There was no one signed up to speak and Mayor Merrill closed the public hearing. City Auditor and Clerk Robinson read proposed Ordinance No. 96-3921 by title only. On motion of Commissioner Patterson and second of Vice Mayor Cardamone, it was moved to pass proposed Ordinance No. 96-3921 on first reading. Mayor Merrill requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. 7. PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 96-3939, AMENDING CHAPTER 1, SARASOTA CITY CODE BY DELETING THE REQUIREMENT THAT ALL MEMBERS OF THE ADMINISTRATIVE STAFF OF THE CITY, THE CITY MANAGER, THE CITY AUDITOR AND CLERK, THE CITY ATTORNEY OR THEIR REPRESENTATIVES WHO MAY BE ASKED TO GIVE EVIDENCE AS PART OF A DULY ADVERTISED PUBLIC HEARING, BE FIRST DULY SWORN: PROVIDING FOR THE ADMINISTRATION OF THE OATH AT PUBLIC HEARINGS ON MATTERS QUABI-JUDICIAL: SETTING FORTH FINDINGS: PROVIDING FOR THE SEVERABILITY OF PARTS HEREOF; ETC. (TITLE ONLY) = PASSED ON FIRST READING (AGENDA ITEM IV-2) #1 (0476) through (0545) BOOK 39 Page 12972 04/01/96 6:00 P.M. BOOK 39 Page 12973 04/01/96 6:00 P.M. City Attorney Taylor stated that as requested by the Commission at its meeting of March 4, 1996, proposed Ordinance No. 96-3939 deletes the requirement that all members of the administrative staff, the City Manager, the City Auditor and Clerk, the City Attorney or their representatives be sworn prior to giving evidence as part of a duly advertised non quasi-judicial public hearing; that in accordance with State law, the oath requirement for quasi- judicial public hearings has been retained. City Attorney Taylor continued that the Administration recommends passing proposed Ordinance No. 96-3939 on first reading. Mayor Merrill opened the public hearing. There was no one signed up to speak and Mayor Merrill closed the public hearing. City Auditor and Clerk Robinson read proposed Ordinance No. 96-3939 by title only. City Manager Sollenberger stated that the Administration recommends passing proposed Ordinance No. 96-3939 on first reading. On motion of Commissioner Pillot and second of Commissioner Dupree, it was moved to pass proposed Ordinance No. 96-3939 on first reading. Mayor Merrill requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. 8. PUBLIC HEARING RE: PROPOSED ORDINANCE NO. 96-3925, TO VACATE RIGHT-OF-WAY LOCATED IN THE NORTHEAST CORNER OF THE RINGLING BOULEVARD/RD/RINGLING SPUR INTERSECTION: SAID AFOREMENTIONED RIGHF-OF-WAY INCLUDES A CONCRETE SIDEWALK AND A PORTION OF THE EASTERNMOST TRAVEL LANE OF THE RINGLING SPUR: MORE PARTICULARLY DESCRIBED HEREIN; ETC. (TITLE ONLY) (PETITION NO. 96-SV-04, JOEL FREEDMAN, AICP, REPRESENTING THEATRE ASSOCIATES BY BBK) - FOUND THE CLOSING OR DISCONTINUING OF THE PUBLIC RIGHT-OF-WAY IN THE BEST INTEREST OF THE CITY AND THE GENERAL PUBLIC BASED ON EVIDENCE IN THE RECORD; PASSED ON FIRST READING WITH ORAL STIPULATIONS PLACED IN WRITING PRIOR TO SECOND READING AS DEEMED APPROPRIATE BY THE CITY ATTORNEY (AGENDA ITEM IV-3) #1 (0545) through #2 (0420) Michael Taylor, Deputy Director of Planning and Development, came before the Commission and referred to various maps displayed on the overhead projector to identify the area requested for vacation by Petition 96-SV-04, the street vacations requested in Petition No. 96-SV-01, the setback from U.S. 301 incorporated into the revised Development Plan for a Cobb Theatre complex, and the location of five parking spaces on private property which will be allocated for public parking. Mr. Taylor referred to a display on the overhead projector and stated that according to Section 30-82 of the City Code, a vacation of public park or street may be approved if one or more of the following criteria are met: 1. The public park or street has not been used as such or is abandoned. 2. The public park or street is of no benefit to the City and the public. 3. The closing or discontinuing of the street or public park is in the best interest of the City and public. Mr. Taylor stated that second reading of Petition No. 96-SV-01, to vacate portions of Links Avenue, Ringling Boulevard Spur, and an adjacent alley from Ringling Boulevard to Links Avenue, is scheduled for April 15, 1996; that Petition No. 96-SV-04 to vacate the northeast corner of the Ringling Boulevara/Ringling Spur intersection and the eastern most travel lane of the Ringling Boulevard Spur, was filed to permit relocation of the proposed parking structure eight feet westward from its previously proposed location; that an 8-foot setback from the U.S. 301 right-of-way will allow for future improvements to U.S. 301; that the Planning Board/Local Planning Agency (PBLP) recommended approval to the Commission of Petition No. 96-SV-04 by a vote of 4 to 1 based on evidence in the record pursuant to the third criteria listed under Section 30-82 of the City Code and subject to the following stipulation: The petitioner's obtaining a Certificate of Occupancy for the structure described in the Development Plan 96-DPR-01, as revised, prior to January 16, 2000. In the event the Certificate of Occupancy is not issued by January 16, 2000, the vacation shall be voided and the right-of-way returned to its previous condition at the sole expense of the petitioner. Deputy City Manager Schneider stated that the Administration recommends: 1) finding that the closing or discontinuing of the public right-of-way is in the best interest of the City and general public based on the evidence in the record and 2) passing proposed Ordinance No. 96-3925 on first reading. Commissioner Patterson asked if the City will have the authority to regulate the private parking spaces abutting an unnamed alley at the northwest corner of the movie theatre building, which the petitioner has offered to allocate for public parking? BOOK 39 Page 12974 04/01/96 6:00 P.M. BOOK 39 Page 12975 04/01/96 6:00 P.M. Mr. Taylor stated that a signed agreement outlining the details relative to the parking spaces being offered has not been developed; that the question should be posed to the petitioner. Joel Freedman, AICP, Bishop & Associates Jeffery Russell, law firm of Abel, Band, Russell, Collier, Pitchford & Gordon; and Gary Hoyt, Project Architect, representing Theatre Associates by BBK, Inc. came before the Commission. Mr. Freedman stated that the vacated rights-of-way are requested to accomplish a sufficient setback to allow for future improvements on U.S. 301; that the 8-foot setback will be landscaped in accordance with minimum Code requirements after construction begins. Mr. Freedman referred to a site plan and explained the following revisions incorporated into Development Plan 96-DPR-01: Increasing the parking structure by 1.5 levels to a height of approximately 85 feet. Improving the intersection at Links Avenue and Main Street to provide for traffic turning right and left. Reconfiguring and relocation of the main elevator to facilitate pedestrian traffic to the crosswalk at the Ringling oulevard/Ringling Spur. Mr. Freedman stated that the offer made by the petitioner to allocate five private parking spaces for public use from the hours of 8 a.m. to 6 p.m. included authority for the City to regulate the spaces during those hours. Mr. Freedman continued that the proposed Coblb Theatre Complex will be a tremendous asset to the downtown; that approving Petition No. 96-SV-04 is in the best interest of the City and the public; that approval is requested. Vice Mayor Cardamone asked if the petitioner is amenable to signing an agreement authorizing the City to regulate the five private parking spaces? Mr. Russell stated that the petitioner will stipulated for the record that the City can utilize the parking spaces in whatever manner deemed appropriate. Vice Mayor Cardamone asked for the anticipated utilization of the spaces in the parking structure. Mr. Freedman stated that 137 of the 604 parking spaces will be dedicated to replace lost parking currently provided by two surface parking areas used for the office buildings owned by the petitioner; that leased parking spaces will be made available to area merchants; that the remaining parking spaces will be utilized by theater patrons; that the petitioner has signed with the City a parking agreement which guarantees that adequate parking will be provided to meet the Code requirements for the proposed theater. Mr. Freedman continued that the majority of films are scheduled for showings in the late afternoon or evening; that operation of the control gates at the entrance/exit to the parking structure will cease at 3 p.m. to better facilitate traffic flow; therefore, the structure will essentially operate as a public parking garage in the evening. Commissioner Patterson stated that operation of the control gates could be changed at the discretion of the property owner or lessee. Mr. Russell stated that the intent is to provide parking for people who intend to eat dinner at a local restaurant, etc., and subsequently view a movie at the theater or vice versa. Commissioner Dupree asked if monitoring equipment will be installed on each of the floors in the parking structure? Mr. Freedman stated that the parking structure will be fully secured. Mr. Hoyt stated that the location of the exit stairway and the elevator on the corners of public streets adjacent to the security guard station complies with Crime Prevention Through Environmental Design (CPTED) standards. Commissioner Patterson asked if the parking structure will be designed to accommodate additional levels of parking in the future? Mr. Hoyt stated that one additional story could be added to the parking structure if a need arises in the future. Mayor Merrill asked for the location at which access into the parking structure will be provided. Mr. Freedman referred to a site plan displayed on the overhead projector to identify the main access to the parking structure from Ringling Boulevard and a secondary access from the adjacent alley and to explain the travel route provided by improving the intersection at Links Avenue/Main Street by allowing a left turn onto Main Street while maintaining the right-turn only at the intersection of Ringling Spur/Main Street. Vice Mayor Cardamone asked if the Commission will have an opportunity to view the parking structure prior to construction? BOOK 39 Page 12976 04/01/96 6:00 P.M. BOOK 39 Page 12977 04/01/96 6:00 P.M. Mr. Freedman stated no. Mr. Hoyt stated that preliminary image sketches which were submitted with the initial petition focused on providing an aesthetically pleasing street facade. Commissioner Pillot asked for the issues on which input from the public should focus. City Attorney Taylor stated that a public hearing is being held on a street vacation petition; that the issue is whether the identified area should be Closed and discontinued; that a preponderance of input beyond the scope of the proceeding was presented during the public hearing held for Petition No. 96-SV-01; that he recommends public input on Petition No. 96-SV-04 be limited to the issue of the closing and discontinuing of the street requested for vacation; that speakers presenting statements concerning whether one type of theater versus another type of theater is in order should not be accepted. The three criteria on which vacation of a public park or street may be approved as listed under Section 30-82 of the Sarasota City Code remained displayed on the overhead projector throughout the public hearing. Mayor Merrill opened the public hearing. The following people came before the Commission: Michael Furen, Esquire, 2033 Main Street, Suite 600 (34237). representing Sarasota Film Society, stated that his client has appealed the decision made by Timothy Litchet, Manager of Building, Zoning, and Code Enforcement, concerning the parking requirements and parking location reflected on the revised Development Plan 96-DPR-01, which is the sole justification for the requested street vacation; that Section 2-12 of the Zoning Code states an appeal stays all proceedings and furtherance of action appealed from; that the public hearing tonight is related to the action appealed from and should not be held; that the requested vacation is purely for the private profit and gain of private developers, which is not a proper basis for a street vacation under Florida law; that the City Commission is charged with a responsibility of determining only if the street vacation itself, not what might result from the street vacation, is in the best interest of the city and the public; that the proposed ordinance reflects clearly and conclusively that the vacation itself is not in the best interest of the City or the public by making the vacations conditional; that the proposed ordinance requires that public rights-of-way vacated be restored to the condition existing as of the effective date of the ordinance if the proposed project does not proceed; that nonpublication of the April 1, 1996, City Commission meeting agenda in a newspaper of general circulation violates Policy 5.6 of the Governmental and Coordination and City Participation element of the Sarasota City Plan. Attorney Furen distributed to the Commission and entered into the record copies of the documents submitted at the PBLP meeting of March 6, 1996. Attorney Furen stated that the impact an entrance and exit of a 600+ space parking structure into a 20-foot-wide alley, which is significantly cluttered with trash receptacles, dumpsters, delivery trucks loading and unloading, etc., will have on the surrounding transportation network has not been addressed. Attorney Furen continued that generalized sketches of the proposed parking structure were filed with the initial petitions; that the PBLP had the right to demand submittal of the architectural tie in between the proposed parking structure and the main theater building, but no such request was made of the petitioner; therefore, the City will not have an opportunity to view the architectural design of the parking structure. Attorney Furen requested that the material submitted be reviewed; and that the Commission's decision be based on what is in the best interest of the City and not in the best interest of an individual development group. Commissioner Pillot asked for comment regarding the advertisement of the public hearing. City Auditor and Clerk Robinson stated that the title of the proposed ordinance was placed in the legal section of the Sarasota Herald-Tribune 10 days prior to the public hearing in accordance with State law; that in addition, property owners within 500 feet of the proposed street vacation were notified of the public hearing by mail. Richard Morris, 447 South Washington Drive (34236), stated that he is the managing director of the Sarasota Film Society; that Cobb Theatres currently operates 26 screens in Sarasota; that films can be viewed at the local Cobb Theatres beginning at 1 p.m. not 3 p.m.; that the parking provided for the theater was based on 1 space per 7 seats, which is considered inadequate; that use of the parking structure by people frequenting area businesses could decrease the amount of parking available for theater patrons to 1 space per 10 seats; that a new traffic study or market feasibility study should be performed to determine a more accurate need for parking. Mr. Morris continued that the configuration of the drop-off area and the entrances to the proposed parking structure will facilitate increased vehicular use of the 20-foot-wide alley. BOOK 39 Page 12978 04/01/96 6:00 P.M. BOOK 39 Page 12979 04/01/96 6:00 P.M. Mr. Morris displayed on the slide projector photographs of delivery trucks, trash receptacles, dumpsters, and multiple vehicles to demonstrate the narrowness and limited travel space available along the alley. Mr. Morris stated that in accordance with a statement recently made by the Chairman of the Board of Directors for AMC Theatres, who proudly announced that mega-plexes of 16 screens and above are generating 12% to 15% more attendance and traffic than anticipated, an additional 2,500 patrons and 1,200 vehicles can be expected at the proposed 18-screen movie complex in addition to the 2,000 vehicles and 25,000 patrons anticipated; that the success of the proposed development could cause gridlock traffic in the area which should be resolved prior to commencement of the project; that the taxpayers should not be required to solve problems directly generated by a private development. Elwood Levy, 770 South Palm Avenue (34236), stated that although substantial objections were raised at previous hearings, the Commission voted to approve other street vacations related to the proposed Cobb Theatre Complex; that the area requested for vacation under Petition No. 96-SV-04 includes approximately 950 square feet of public sidewalk; that an alternative route for pedestrian traffic has not been addressed; that forcing pedestrians to walk along the street will not be in the best interest of the City and the public. Mr. Levy continued that a legal question is raised as to whether the City, as a municipality, can properly vacate a public right-of-way in favor of a private interest without requiring compensation. Mr. Taylor referred to the site plan to identify the new, larger sidewalk which will be constructed and to explain the pedestrian access along and around the proposed development. Dan Lobeck, representing Growth-restraint Environmental Organization (GEO) and his family, 450 South Shade Avenue (34237), stated that consideration of all testimony relevant to the proposed development is necessary for the Commission to make a determination as to whether the proposed street vacation is in the best interest of the City and the public; that the Staff analysis of Petition No. 96-SV-04 does not provide justification for approval, but only indicates the requested vacation will facilitate and allow the proposed development to proceed and that new development generates new tax revenues; that generation of new taxes is not adequate justification to give away the public interest in an effort to facilitate private development. Mr. Lobeck continued that the revised development plan reflects a lower number of parking spaces than originally proposed; that based solely on parking by movie patrons, 1 space for every 4.42 seats will be provided; that the petitioner has indicated patrons of the movie complex are not the only people who will be utilizing the parking proposed; that the proposed development will create a parking and traffic nightmare; that the Sarasota City Plan approved in 1989 designated U.S. 301 at a level of service "F"; that Transportation Plan Policy 1.1 states: 1) the traffic levels shall be maintained at or above the current level of service condition until such time as the level of service condition is improved and 2) development orders should not be issued that would degrade the level of service conditions further; that traffic on U.S. 301 has not improved but worsened over the past seven years; that the transportation analysis prepared for the proposed development did not account for committed capacity of the former Maas Brothers building and Main Plaza buildings; that a recent survey conducted by the Sarasota Herald-Tribune identified excessive traffic as the number one concern of citizens. Mr. Lobeck requested that the Commission vote in favor of the constituency and not in favor of private developers. Mary Quillin, 2304 Ringling Boulevard #213 (34237), stated that she has been a resident in Sarasota since 1956; that the parking garage adjacent to the former Maas Brothers building was not fully utilized as citizens felt the garages was inconvenient and difficult from which to ingress and egress; that surface parking is more appealing than garage parking; that movie patrons will fill the surface spaces along Main Street. Ms. Quillin continued that private developers are requesting a donation of public property for private gain; that the public is not being compensated; that the five parking spaces allocated for public use are from 8 a.m. to 5 p.m. only; that the existing traffic congestion on U.S. 301 is unbearable; that the proposed development will make the traffic situation worse; that $200,000 was expended for development of the City's Vision Plan, Ms. Quillin further stated that the proposed development is not in compliance with the Zoning Code or Sarasota City Plan; that $200,000 of Tax Increment Financing (TIF) dollars were expended for the development of the City's Vision Plan, which identified low traffic impact office buildings at the location proposed for the Cobb Theatre Complex; that the TIF funding will be wasted if the proposed development proceeds; that the Commission should not give any more of the City away. Ms. Quillin further stated that an 18-screen movie complex is out of scale with the ambiance of downtown Sarasota; that an 8-screen or 10-screen facility would more appropriate; that a smaller theater would be make the downtown more comfortable; that people may stop coming to the downtown if the traffic gets worse. BOOK 39 Page 12980 04/01/96 6:00 P.M. BOOK 39 Page 12981 04/01/96 6:00 P.M. Randy Alley, Traffic Engineer, George F. Young, Inc., 10712 Country Price Drive, Parrish FL, representing the Sarasota Film Society, stated that George F. Young, Inc. prepared an analysis of revised Development Plan 96-DPR-01 and the Tindale-oliver Traffic Study regarding the proposed Hollywood 18 Cobb Theatres. Mr. Alley referred to a conceptual site plan to explain the following conflicts identified regarding the proposed development plan: The lack of sufficient storage length for vehicles in both directions between the theatre entrance and Main Street. Moving vehicle V. moving vehicle and moving vehicle V. pedestrian conflicts creating serious safety issues at the theatre entrance/Main Street intersection due to limited drop-off area, vehicle stacking, vehicle movement, and pedestrian movement. An alley functioning as a street by providing a traffic signal tie in. Direction of traffic flow not clearly defined as one-way or two-way in northwest alley via Links Avenue. Insufficient distance for backing from 90 degree parking spaces along alleys in accordance with Section 12-9.1 of the Zoning Code. Substandard aisle width of 18' and 20' provided in the alleys for through movements. Section 12-9 of Zoning Code requires aisle widths of 22'- 24'. Multiple right-angle turns for vehicles southbound on Links Avenue from Main Street via alleyways have insufficient radii to accommodate SU-30, WB-40, and WB-50 service trucks, creating congestion and safety problems. Sy Sherr, 523 South Washington Boulevard (34236), stated that surface parking was predominant 30 years ago; that parking in other downtown cities is provide via parking garages; that the Sarasota Film Society opened Burns Court Cinema without providing on-site parking; that the small portion of City property requested for vacation will generate substantial tax revenues over the next 50 years; that the number of screens is not relevant to the size of a theater; that 4-screen and 18-screen movie complexes could have a similar number of seats; that his business has been operated in downtown Sarasota for 32 years; that U.S. 301 is only congested during the a.m. and p.m. peak hours occurring daily at 8:30 a.m. and 5:00 p.m.; that the majority of films begin at 7 p.m. or 9:30 p.m., times during which upper Main Street is currently desolate. Mr. Sherr continued that the merchants downtown should be required to provide parking for customers in parking garages; that surface parking hampers the flow of traffic in and out of the downtown area. Commissioner Patterson left the Commission Chambers at 7:22 p.m. Bill Couch, 1819 Main Street (34236), representing the Greater Sarasota Chamber of Commerce, distributed copies of a brochure entitled Where We Stand; and read into the record a letter dated April 1, 1996, from David May, CCE, CAE, President of the Greater Sarasota Chamber of Commerce, regarding Hollywood 18 Cobb Theatres, which indicated support for Commission approval of Petition No. 96- SV-04 to promote economic revitalization of upper Main Street. Commissioner Patterson returned to the Commission Chambers at 7:24 p.m. N. J. Olivieri, - 1222 Quail Run Trail, representing Horizon Mortgage Company and Towles Court, stated that Horizon Mortgage Company has been located immediately to the south of the proposed site since 1974; that proposed development is an excellent concept for downtown Sarasota; that the developers are strong Sarasota advocates of good, thriving businesses in the downtown core; that the proposal is supported; that property owners and tenants in Towles Court, an art community located two blocks to the south of the proposed site, also support the proposal. Paul Thorpe, Executive Director of the Downtown Association. 47 South Palm Avenue #212 (34236), stated that the Board of Directors and the Downtown Association continues to support the proposed Hollywood 18 Cobb Theatre Complex, including the vacations requested in Petition No. 96-SV-04, to boost the economic viability of eastern downtown. Mr. Thorpe continued that people use parking garages in all areas of the country; that the Barnett Bank parking garage in Sarasota is aesthetically pleasing; that the proposed development will be located within walking distance of Laurel Park, Gillespie Park, and East Sarasota neighborhoods and the Gulf Stream Avenue areas. John Harshman, 2540 Cardinal Place (34239), stated that as a resident and businessman in the City of Sarasota for the past 22 years, he supports the proposed development, which will provide for revitalization and benefit the downtown and surrounding areas. Deane Allyn, 61 North Pineapple Avenue, representing the Sarasota Opera, stated that proposed development could provide similar revitalization to upper Main Street as occurred on lower Main Street; that vacating of an alley was required for renovation of the Sarasota Opera House; that the Sarasota Opera House attracts BOOK 39 Page 12982 04/01/96 6:00 P.M. BOOK 39 Page 12983 04/01/96 6:00 P.M. 35,000 patrons to the downtown area over a three-month period during which area restaurants and business thrive. City Auditor and Clerk Robinson entered into the record a list of 15 documents pertaining to Petition No. 96-SV-04 which are on file in the Office of the city Auditor and Clerk. There was no one else signed up to speak and Mayor Merrill closed the public hearing. Attorney David Band and Dr. Mark Kauffman, Managing Partners, and Joel Freedman, representing Theatre Associates by BBK, Inc., came before the Commission. Mr. Freedman stated that space under the parking structure has been designed for the relocation and storage of the dumpsters and trash receptacles currently situated along the alley. Attorney Band stated that Theatre Associates by BBK, Inc., has spent over one year attempting to meet the requirements necessary to obtain approval for the proposed development; that the proposed project will beautify and revitalize the entire east end of downtown Sarasota and provide 70 to 80 new jobs; that designs of parking garages and structures in Sarasota, Tampa, and Orlando, Florida, and other cities have been reviewed; that the intent is to provide an attractive parking structure of which the developer and the City can be proud; that he and his associates are respected developers who have been developing projects in Sarasota for 30 years; that completed projects include the Mira-Mar renovation on Palm Avenue and renovation of the building located on the corner of State Street and Palm Avenue, which formerly housed the Tucker Sporting Goods Shop; that the Chamber of Commerce, the Downtown Association, area merchants, as well as representatives of the Sarasota Opera and the surrounding neighborhoods have voiced support for the project as a benefit to the City; that the proposed development will revitalize the eastern end of downtown, increase tax revenues, and add to the tangible personal property taxes. Dr. Kauffman stated that the proposed development meets the public interests identified in the Vision Plan; that after 5 p.m. eastern Main Street is desolate, dark, dreary, and dangerous; that a quality, family-oriented entertainment complex with a secure, monitored parking structure is proposed to bring excitement and energy to that portion of Main Street; that traffic problems are experienced when an event at the Van Wezel Performing Arts Hall lets out; that increased traffic in the downtown area on a Friday evening will be a byproduct of success; that the petitioner will review various options discussed by the City Engineer and the PBLP to address concerns regarding the aisle width of the alley; that the subject property is valuable; that other options are available to the developers; however, the proposed development was chosen as the most beneficial for downtown Sarasota. Deputy City Manager Schneider stated that the Administration recommends: 1) finding that the closing or discontinuing of the public right-of-way is in the best interest of the City and general public based on the evidence in the record and 2) passing proposed Ordinance No. 96-3925 on first reading. Mayor Merrill asked if the Administration recommendation includes the stipulation set forth by the PBLP? Mr. Schneider stated yes. Mayor Merrill asked for an Administration's recommendation regarding a signed agreement for the five private parking spaces offered for public use. Deputy City Manager Schneider stated that the petitioner has stipulated on the record that the five private parking spaces will be regulated by the city during specified hours; however, a formal document detailing the arrangement could be pursued between first and second readings if so desired by the Commission. Commissioner Patterson stated that a formal agreement is not necessary if the stipulation was made on the record. City Attorney Taylor stated that is correct. City Auditor and Clerk Robinson read proposed Ordinance No. 96-3925 by title only. On motion of Commissioner Pillot and second of Vice Mayor Cardamone, it was moved to: 1) find that the closing or discontinuing of the public right-of-way is in the best interest of the City and general public based on the evidence in the record and 2) pass proposed Ordinance No. 96-3925 on first reading with any oral stipulations to be put in writing prior to second reading based" on recommendations of the City Attorney. Mayor Merrill requested that City Auditor and Clerk Robinson proceed with the roll-call vote. Motion carried unanimously (5 to 0): Dupree, yes; Cardamone, yes; Patterson, yes; Pillot, yes; Merrill, yes. 9. CITIZENS INPUT CONCERNING CITY TOPICS (AGENDA ITEM VI) #1 (0441) through (0870) The following people came before the Commission: Robert Ardren, 1243 Second Street (34236), explained the timely response and proficient efforts of the Sarasota Police Department when a robbery recently occurred at his residence; and stated that Police Officers William Pettigrew and Scott Blackstone should be BOOK 39 Page 12984 04/01/96 6:00 P.M. BOOK 39 Page 12985 04/01/96 6:00 P.M. commended for the fine public service provided at 3 a.m. in the morning. Jon Susce, 524 Erie Court (34237), representing East Sarasota Neighborhood Association (ESNA), stated that absentee and "slum" landlords are a major problem in City neighborhoods; that in a cooperative effort between the ESNA Task Force and the Sarasota Police Department, arrests were made at three houses where illegal activities, i.e., prostitution and crack cocaine distribution, were occurring; that the Nuisance Abatement Board (NAB) took action against one of the property owners by declaring the property to be a nuisance; that the house was subsequently closed; that the intent of the ESNA is to make complaints of illegal activities occurring in the neighborhood public; that a meeting was held last Friday at which property owners in the neighborhood registered complaints and provided addresses at which specific activities were occurring; that representatives from Channel 13 and the Sarasota Herald- Tribune attended the meeting; that the female property owner of one of the houses at which arrests were made has accused certain members of the ESNA of being mentally unstable and conducting "witch hunts"; that the next ESNA meeting is scheduled at the Harvest Tabernacle church on Monday, April 8, 1996, at 7 p.m.; that Tom Lyons, of the Sarasota Herald-Tribune, who recently wrote an article regarding the issue, plans to attend; that State Representative Shirley Brown, Congressman Dan Miller, and the police officers who made the arrests have been invited to attend the meeting; that attendance by members of the City Commission is requested to discuss and seek solutions to the problems identified by the ESNA. Commissioner Pillot stated that the accusations brought against the female property owner referenced are without merit; that the property owner is an upstanding contributor to the community; that Mr. Susce raised the same accusations during his recent campaign for the District 1 Commission seat; that in quoting from the recent Tom Lyons column, "attributing a witch hunt to him (Mr. Susce) seems to be an accurate characterization." Melanie Eckstein, 1240 4th Street (34236), thanked the Commission for listening and the City Administration for addressing problems she identified at previous meetings and/or brought directly to the Administration; that citizens should realize that bringing forth the facts and requesting assistance from the City achieves better results than continuous complaining. The Commission recessed at 7:55 p.m. and reconvened at 8:05 p.m. 10. UNFINISHED BUSINESS: DISCUSSION RE: FOUNTAIN EOUIPMENT STRUCTURE AT MARINA JACK - AUTHORIZED ISSUANCE OF A BUILDING PERMIT ONCE PLANS ARE APPROVED BY THE ADMINISTRATION (AGENDA ITEM VII-1) #1 (0872) through (1279) Commissioner Patterson stated that her husband's law firm represents Marina Jack, Inc., and Jack Graham, Inc.; therefore, she declares a conflict of interest and will not vote on this item. Vice Mayor Cardamone stated that the plans submitted to the Building, Zoning, and Code Enforcement Department for the Dolphin Fountain donated by Marina Jack at Island Park included a structure for the pumps and computer circuitry panel; that the original site plan reflects concrete slabs on which equipment would be placed, but did not include the structure now being proposed to cover the equipment; that a large, imposing structure at the Bayfront is not favored. Deputy City Manager Schneider stated that the plans for the pump structure were brought to his attention on Wednesday, March 27, 1996; that discussions were subsequently held with representatives of Marina Jack to discuss a solution; that the option suggested by the Administration to provide a fence covered with landscaping around the equipment for obscurity will not provide the necessary protection to the pumps and computer circuitry panel; however, the structure which was originally proposed at a height of approximately 11 feet can be redesigned and lowered in scale by approximately 2 feet; that a landscaping vine can be placed around the structure for obscurity. Lee Sullivan, Vice President and Chief Operating Officer, and Samuel Chavers, Comptroller, representing Marina Jack, Inc., came before the Commission. Mr. Chavers stated that installation of the pump and computer circuitry panel into a vault room located inside the fountain structure was originally planned; that the equipment is approximately 5 feet in height and the pumps are larger than anticipated; that the size of the fountain does not permit installation of a vault room the size necessaryi that locating a structure for the equipment 60 feet from the fountain has been proposed to preserve the view of the fountain; that the wall heights of the originally proposed structure can be lowered to 66 inches with a 2.5-foot roof peak, which is the minimum height required and peak for proper ventilation of the computer circuitry panel and maintenance of the equipment. Mayor Merrill stated that the structure was unexpected; that the question is not whether it should have happened but what can be done; and asked if the Administration is in agreement with the proposal set forth by Marina Jack? Deputy City Manager Schneider stated yes, with vine landscaping to be placed upon the structure for obscurity. BOOK 39 Page 12986 04/01/96 6:00 P.M. BOOK 39 Page 12987 04/01/96 6:00 P.M. On motion of Commissioner Pillot and second of Commissioner Dupree, it was moved to authorize the granting of a building permit once Administration approval of the plan is received. Commissioner Pillot stated that the intent of the motion is for the Administration to act as quickly as possible as the date scheduled for dedication of the fountain is Tuesday, April 9, 1996. Commissioner Dupree asked if construction of the structure can be completed by the dedication date? Mr. Chavers stated that Wilson Construction is aware of the dedication date; that the plans have been drawn and sealed; that the modification regarding the wall height can be completed tomorrow; that construction should be completed by the dedication date if the building permit is issued in a timely manner. Vice Mayor Cardamone asked if a flat roof can be considered? Mr. Chavers stated that Delta Fountains and the project architect have stated the peak roof is necessary to provide proper ventilation of the computer circuitry; that alternative roof top treatment can be reviewed to blend the structure into the surrounding area. Vice Mayor Cardamone stated that the structure should be heavily landscaped. Mr. Sullivan agreed. Mayor Merrill stated that the structure will be seen regardless; that a concept similar to the ornamental lift station with a tile roof which was placed at the Bayfront should be considered. Mayor Merrill called for the vote on the motion. Motion carried unanimously (4 to 0): Dupree, yes; Cardamone, yes; Patterson, abstained; Pillot, yes; Merrill, yes. 11. NEW BUSINESS: REPORT RE: BASIS FOR NEGOTIATION WITH BVP ASSOCIATES WITH RESPECT TO SETTLEMENT OF THE DISPUTE FOR THE PROPERTY LOCATED AT THE SOUTHWEST CORNER OF BAHIA VISTA STREET AND SOUTH TAMIAMI TRAIL = APPROVED THE CITY'S UNDERTAKING SETTLEMENT DISCUSSIONS WITH EXACT LANGUAGE AND AN ADMINISTRATIONE RECOMMENDATION TO BE BROUGHT BACK AT THE REGULAR CITY COMMISSION MEETING OF MAY 6, 1996 (AGENDA ITEM VIII-2) #2 (1280) through ( 1 I City Attorney Taylor stated that the Commission requested a report regarding what modifications from the proposed conditional rezoning/site plan (Petition 94-CO-06) submitted for the property located at the southwest corner of U.S. 41 and Bahia Vista Street were being offered by the property owners for the negotiation purpose of negotiating a possible settlement to the pending litigation, City of Sarasota V. BVP Associates; that his memorandum to the Commission dated March 29, 1996, outlines the modifications being offered. City Attorney Taylor entered into the record a letter from BVP Associates dated April 1, 1996, which was hand delivered to each of the Commissioners; and stated that several paragraphs of the letter refer to legal issues; that as litigation on this issue is ongoing, the Commission should refrain from discussing legal positions at the table. Mayor Merrill asked for the Administration's recommendation. Deputy City Manager Schneider stated that the item was agendaed as a report to the Commission for informational purposesi that a proposal by BVP Associates has been set forth; that Staff input has not been obtained; that he would advise that the issue be referred to the Administration and placed on a future agenda as an action item if the Commission has a desire to further discuss settlement negotiations. Mayor Merrill stated that without having seen the proposal, the public will have difficulty providing input on the item. Commissioner Patterson stated that since casting her votes regarding Petition No. 94-CO-06, her husband was employed by one of the principals of BVP Associates for representation on an item in no way related to the property located on the corner of U.S. 41 and Bahia Vista Street; and asked for clarification of her ability to vote under such circumstances. City Attorney Taylor stated that the Florida Statutes addresses the ethics of city commissioners voting on issues which inure to the private gain of a spouse; that the provision applies, e.g., to issues on which a Commissioner's husband is actively representing the person or entity making a request of the Commission; that there is absolutely no prohibition against Commissioner Patterson's voting on a matter if her husband or his law firm has no involvement in the particular matter pending before the City Commission; that singular or past transactions with a person by her husband would not disqualify Commissioner Patterson from voting on a current issue presented by that person. Mayor Merrill stated that several property owners involved in the litigation are attorneys; and asked if he has a conflict in voting if one of those attorneys were to act as legal counsel for his business? City Attorney Taylor stated no. BOOK 39 Page 12988 04/01/96 6:00 P.M. BOOK 39 Page 12989 04/01/96 6:00 P.M. Commissioner Pillot stated that a potential vote of the Commission was anticipated when the request for a report by the Administration was made. Mayor Merrill asked City Auditor and Clerk Robinson to cite the motion passed regarding the Commission's request for a report. City Auditor and Clerk Robinson cited the following from the regular City Commission meeting of March 18, 1996: On motion of Commissioner Dupree and second of Commissioner Pillot, it was moved to have the City Manager and City Attorney prepare a report for the Commission concerning the status of the law suit. Commissioner Patterson asked what is being requested? Commissioner Pillot stated that a brief memorandum concerning any proffer to resolve the issue is requested before the April 1st meeting. Mayor Merrill stated that the City Manager's recommendation could also be included in the memorandum; that no support was forthcoming from the Commission previously for a workshop; that his position is that a workshop should not be held unless the parties' position has changed. Commissioner Pillot stated that he agrees. Mayor Merrill called for a vote on the motion. Motion carried unanimously (5 to 0): Cardamone, yes; Dupree, yes; Patterson, yes; Pillot, yes; Merrill, yes. Deputy City Manager Schneider stated that the issue has not been reviewed by Staff; therefore, an Administration's recommendation was not prepared. Mayor Merrill stated that a recommendation from the Administration should be received prior to the Commission's acting on the proposal set forth by BVP Associates. The following people came before the Commission: George Dietz, 1620 North Lodge Drive (34239) and William Merrill 2033 Main Street #600 (34237), Attorneys representing BVP Associates and Olympia Development Group. Attorney Merrill stated that the Commission has received correspondence from City Attorney Taylor and Attorney Dietz concerning the proffers made for settlement negotiations; that the proffers would benefit the City as follows: 1. Settlement would eliminate the precedential value of the existing order issued by the Twelfth Judicial Circuit Court in favor of the property owner. 2. Settlement would save the City fees and costs related to further litigation. Attorney Merrill stated that the City has appealed the order of the Twelfth Judicial Circuit Court to the Second District Court of Appeals (DCA) i that the Second DCA will not rule in favor of the city; that the Second DCA will either affirm the order or quash the petition and remand it back for rehearing before the Circuit Court; that a follow-up appeal could be filed depending on the ruling of the Circuit Court. 3. Settlement would allow the City to hedge its bet and avoid any extreme results the Commission may feel have been set forth by the Circuit Court decision. 4. Settlement would eliminate the southerly building from the site plan and require BVP Associates to obtain site plan approval under Commercial Office Park (COP) zoning at a future date. Attorney Merrill stated that the removal of the southerly building from the site plan as proffered is a significant movement on the property owners' part and should answer the concerns expressed by the Commission. Commissioner Pillot stated that the Circuit Court's ruling directed the City to grant the request of the petitioner as originally presented; and asked if the effect would be the same if the Second DCA affirms the Circuit Court's ruling? City Attorney Taylor stated that is correct; however, a remand to the Circuit Court would require a judge to hold further hearings in the matter and develop a new order. Commissioner Patterson asked if the Second DCA could remand the ruling to the Circuit Court with the order that the City's position would stand? City Attorney Taylor stated no; that the appeal is based on the City's position that the trial judge failed to consider certain evidence in reaching a decision; that the ruling will be remanded with instruction for reassessment if the Second DCA agrees the trial judge erred. Commissioner Patterson stated that City Attorney Taylor's statements are in direct conflict with those made to her by other attorneys. BOOK 39 Page 12990 04/01/96 6:00 P.M. BOOK 39 Page 12991 04/01/96 6:00 P.M. Commissioner Patterson continued that the memorandum from City Attorney Taylor indicates a proffer was made to impose 7 a.m. to 12 midnight as the hours of operation on the Walgreens store; and cited the following from the minutes of the February 6, 1996, regular City Commission meeting: 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. Attorney Merrill stated that 7 a.m. to 12 midnight were the hours discussed at the settlement meeting; that the 9 a.m. to 12 midnight hours can be reviewed; that his understanding is that the offers presented at the hearing were not accepted by the City as the proposal was denied; that certain stipulations presented at the February 6, 1996, hearing have been included in the settlement proffers, e.g., a contribution of $10,000 and work to address transportation issues and additional landscaping. Commissioner Patterson asked if the stipulations presented during the hearing were included as part of what the Commission denied and if the stipulations would stand as part of a court ruling? City Attorney Taylor stated that Commissioner Patterson's interpretation has been the position taken by the City. Attorney Merrill stated that the hours of operation stipulated at the hearing were not reviewed or remembered when the proffer was put forth; that the issue can be reviewed. Commissioner Pillot stated that the Second DCA in hearing the City's appeal will return one of two decisions: 1) overturn the trial judge's order by remanding the matter back to the Circuit Court for a new hearing and fresh litigation with all inherent costs or 2) determine the trial judge did not err and affirm the Circuit Court's ruling in which case the City would have imposed upon it by the court a land use the majority of the Commission rejected. City Attorney Taylor stated that is correct. Commissioner Pillot asked if the matter will be heard by the same court which heard the case initially if remanded by the Second DCA? City Attorney Taylor stated yes. Attorney Dietz stated that BVP Associates and Olympia Development Group are pursuing settlement negotiation to determine if any middle ground that both parties can accept as fair and reasonable can be reached to bring the litigation to a conclusion; that the Commission has received correspondence outlining the proffers put forward by the owner/developers for consideration by the Commission tonight. Commissioner Dupree asked for the key factor preventing a settlement between the City and the owner/developers. Attorney Dietz stated that from his point of view the key factor is not so much the zoning district as perhaps the use; that upon filing the application for rezoning for the Walgreens site on the northerly portion of the property, City Staff recommended the southerly portion of the property be included in the petition so as to reflect a coordinated plan for the entire parcel; that lacking a prospective tenant or purchaser of the southerly property, a generic building was included merely to show size and scale; that concerns were raised at the final public hearing that no specific use for the building had been designated; that the owner/developers have agreed to withdraw the footprint of the southerly building from the site plan. Attorney Dietz requested that other points of concern of the Commission be identified so discussions can proceed to reach a resolve. Commissioner Dupree stated that other points of contention may not be with the Commission but with the opposing residents who are not aware of the efforts put forth by the owner/developers to reach an equitable settlement. Commissioner Pillot asked if the essence of the order issued by the Circuit Court was that the Commission erred by not considering and acting only on competent, substantial evidence? City Attorney Taylor cited the following from the Circuit Court order: The Commission has not met its burden of demonstrating by competent, substantial evidence that its own professional staff reports as well as the recommendation of the planning commission were incorrect. City Attorney Taylor stated that the City's argument on appeal is that although the Staff and the Planning Board/Local Planning Agency may have reported a certain way, the record established for Petition No. 94-CO-06 contained other evidence to support the Commission's decision. Commissioner Pillot asked if a court has ruled that emotional feelings of a speaker should not be considered as competent, substantial evidence. BOOK 39 Page 12992 04/01/96 6:00 P.M. BOOK 39 Page 12993 04/01/96 6:00 P.M. City Attorney Taylor stated yes; that competent, substantial evidence relates to facts placed on the record as opposed to argument, general feelings, or opinion. Mayor Merrill asked for clarification of the precedential value to the City in the event of a settlement. Attorney Merrill stated that the natural effect of a settlement on an order is to water down the precedent set; that the case is settled and the appeal or remand is eliminated; that the owner/developers could stipulate in the settlement that the order does not apply. Mayor Merrill stated that the judge's ruling could be viewed as setting a bad precedent; that a successful appeal would reverse that precedent; and asked if the precedential value of the judge's ruling could be overturned by stipulating such in a settlement agreement? Attorney Merrill stated that an order of the court has occurred; that a settlement cannot overturn the order; however, other opportunities, i.e., vacating the order, could be explored; that the precedential value for future cases can be eliminated by settling the litigation. City Attorney Taylor stated that the City would enter into a stipulated settlement which recognizes that the City and BVP Associates are not bound by the order; however, the order would remain in the case law unless a legal mechanism were found to have the order vacated; that the City could argue that the precedent is not definitive if future cases were to reference the order after a settlement is reached; however, the order would most certainly be referenced in litigation involving similar cases in the future. Rob Patten, 1862 Alta Vista Street (34236), representing Avondale Residents Association, stated that the position of the Avondale Residents Association, Coalition of City Neighborhoods, and area residents was placed on the record during the public hearings on Petition No. 94-CO-06; that the timing of the request for settlement is of concern to the Avondale Residents Association; that a substantial amount of time and dollars have been spent by the Association and the City related to this issue; that the excellent case made by the City Attorney's Office to the Second DCA, which has strong legal merit, should be allowed to go forward; that the letter outlining the proffers made by the owner/developers has been viewed briefly; that items of any significance have not been proffered; that the proffers address none of the issues raised by the Association during the public hearings; that the legal issues on which the Second DCA is being asked to rule are larger than whether a Walgreens is permitted at Bahia Vista Street at U.S. 41; that professionals were hired by the Association to make presentations of competent, substantial evidence before the City Commission but not the before the PBLP or during Staff considerations as residents and neighborhood associations have limited dollars; that the Association is confident the Second DCA will rule that the City Commission has the ability and authority to make decisions even if the Staff and PBLP recommended otherwise. Mr. Patten continued that the Avondale Residents Association requests that the City Commission let the matter proceed so the Courts can rule on the issue; that the proffers set forth by the owner/developers are not worth the City's settling at this time; that the incompatibility of a 24-hour commercial establishment next to single-family residential zoning and in an area of U.S. 41 where commercial uses have historically been avoided and the lack of a plan to mitigate transpertation-relatad issues are important issues which have not been addressed by the proffers. Robert Hodge, 1635 Prospect Street (34239), stated that the proffers have not been reviewed; however, the City Commission is requested to proceed forward with the appeal process; that much of the testimony provided at the public hearing was from people with proven credentials; that a court ruling on the pending litigation is important; that the DCA in the Miami, Florida, area ruled that feelings cannot be used as grounds on which to make decisions; that Commissioners are cautioned to base decisions on facts and avoid statements such as "I feel." Vice Mayor Cardamone asked for clarification of the court rulings regarding testimony from neighbors. City Attorney Taylor stated that at the time the Commission heard Petition No. 94-CO-06, judicial decisions had indicated credentials of special training or certification were necessary for people to present competent, substantial evidence; that subsequent to the Commission's decision, a major reversal of the law occurred; that a court ruled that testimony of observations by neighbors who present facts upon which to base opinions can be considered as competent, substantial evidence; that the City filed a supplemental authority on the appeal to advise the Second DCA of the decision in that case. Vice Mayor Cardamone asked if the testimony from neighbors who possess special training and appeared before the Commission regarding Petition No. 94-CO-06 could be considered expert testimony? City Attorney Taylor stated yes. Dick Ulrich, 1654 Prospect Street (34239), stated that he is an attorney with the law firm of Judd, Ulrich, and Dean; that Commissioner Pillot is correct that the Second DCA will set forth one of two determinations; however, if the Second DCA intended to deny the writ of certiorari filed by the City and let the Circuit BOOK 39 Page 12994 04/01/96 6:00 P.M. BOOK 39 Page 12995 04/01/96 6:00 P.M. Court's decision stand, that would have been done already; that the Second DCA granted the writ of certiorari to review the briefs filed, accept oral argument, and discuss as well as explain the decision which will ultimately be made; that the chances of the Second DCA reversing the trial judge's decision is slight at this late date; however, the chances the Second DCA will remand the matter back to the trial judge with instructions to make a decision in accordance with the Second DCA's opinion is great; that in his opinion, the trial judge misapplied the portion of the Snyder Decision relating to the burden of proof in the particular action filed and will come to that realization; that if the case is remanded and another hearing held, the testimony by the Avondale Residents Association, the Prospect Street residents, as well as statements made by Mayor Merrill, Vice Mayor Cardamone, and Commissioner Patterson, all of which is in the record, will be the basis for determining the Commission made a correct decision. Attorney Ulrich stated that his law firm handles litigation and land use planning; that settlement is normally in the best interest of the parties; however, in this particular case, the timing is not correct for the City to consider a settlement; that the city would be in a much better position to negotiate a settlement after a remand is issued. Commissioner Pillot asked if the Second DCA rejected the amicus curiae filed on behalf of the Avondale Neighborhood Association. City Attorney Taylor stated that is correct; that failure to file the amicus curiae in a timely manner was the basis for denial. Commissioner Patterson asked if oral argument has occurred? City Attorney Taylor stated noi that the Second DCA's requesting oral argument at this late date is unlikely; that a potential for resolving matters at issue between reasonable people does exist; that his facilitating efforts have not been discussed with the Administration; therefore, he is not compelled to recommend the City Commission settle the matter at this time. Georgia Nicholson, 1839 Alta Vista Street (34236), requested that the City proceed with the appeal in progress and a public hearing be held prior to the Commission's discussing a settlement in the future. Mayor Merrill asked for the Administration's recommendation. Deputy City Manager Schneider stated that the proposed offer should be referred to the Administration for Staff review if the Commission desires to pursue the matter further; that an Administration's recommendation and Staff comments could be prepared and an item agendaed for action at the May 6, 1996, regular City Commission meeting; that a public hearing would not be required, but interested parties could be noticed of the agendaed item. Commissioner Pillot stated that the benefit gained by having the Second DCA rule on the appeal is less than that gained by reasonable people coming to agreement on a use acceptable to both parties; however, the proffers presented to the City by the owner/developers have not had proper review by the Administration or the Commission. On motion of Commissioner Pillot and second of Commissioner Dupree, it was moved to approve a settlement be undertaken with exact language and an Administration's recommendation brought back at the regular City Commission meeting of May 6, 1996. Commissioner Patterson stated that the process of casting her original vote on Petition No. 94-CO-06 was very difficult; that one of the public hearings concluded at 1 a.m.; that the process was continued to another date at which time the Commission reached its decision; that after having lost at the Circuit Court level and agreeing to invest City dollars in the appeals process, the Commissioners were asked individually to meet with representatives of the owner/developers; that discussions were held with various neighborhood representatives to clarify what the "make or break" issues were prior to her meeting with the representatives of the wner/developers; that the owners/developers have not offered anything of real substance to address the paramount issues identified by the neighborhood. Commissioner Patterson continued that the City has expended substantial dollars on legal fees during the process and to have an appeal filed; that the City has been awaiting a result from the appeal for months; that the Commission should proceed forward as requested by the neighbors, who are City taxpayers and have also invested thousands of dollars throughout the process, until a decision is rendered by the Second DCA. Vice Mayor Cardamone stated that numerous neighborhood issues were raised during the public hearing and brought forward in her statement made prior to voting to deny Petition No. 94-CO-06; that the lack of a designated use for the southerly building is the only neighborhood issue addressed by the proffers; that settlement negotiations occurring immediately after the City's filing the appeal would have been more appropriate; that she agrees with the following statement which appeared in a recent editorial: Besides, the City has already spent public funds to appeal the case, if the City were to settle now that money as well as the time spent awaiting the decision would be wasted. BOOK 39 Page 12996 04/01/96 6:00 P.M. à s-3s NWAARE BOOK 39 Page 12997 04/01/96 6:00 P.M. Mayor Merrill stated that he was not in attendance when the vote was taken for the City to file an appeal to the Second DCA; that upon his return, he stated that he would not have supported the motion to appeal would not have been supported; that the $3,500 cost estimated for filing an appeal to the Second DCA did not include the additional expense of the Circuit Court's rehearing the case; that the arguments related to traffic issues presented in his statements prior to voting to deny Petition No. 94-CO-06 pertained to the southerly building, which the owner/developers have offered to eliminate; that a definitive, specific settlement has not been presented; that continuing settlement discussions will not affect the decision forthcoming from the Second DCA; that continued discussions could produce positive results. Commissioner Pillot stated that Commissioner Dupree was not on the Commission, Mayor Merrill was out of town, and he voted in opposition at the time the vote was taken to file an appeal to the Second DCA; that the majority of the existing Commission did not support the appeal; that five weeks provides ample time for additional settlement language to be developed and presented to the Commission at the May 6 meeting. Commissioner Patterson stated that the City will continue settlement negotiations entered into by the meeting held between City Attorney Taylor and the owner/developers, if the motion passes; and asked if the petitioner's notifying the Second DCA of the settlement negotiations could in any way delay the Court's ruling on the City's appeal? City Attorney Taylor stated that he does not know; however, both parties would be advised if the Second DCA is formally notified about the settlement negotiations. Commissioner Patterson stated that settling the issue would not be in the best interest of the City at this time; that the Court's decision on this issue will set case law that will have major significance for the State as to whether neighbors can come and present factual evidence during quasi-judicial proceedings regarding land use; that the Commission's ability to conduct more than a sham of a decision-making process in land use cases is also at stake; that the neighborhood is aware the Second DCA's ruling could go completely against them but supports the Commission's awaiting the decision. Commissioner Patterson continued that she may be inclined to support abrogating some of the Commission's responsibilities for land use decisions if the appeal is not successful. Vice Mayor Cardamone stated that Commissioner Patterson's statements are supported; that Commissioner Dupree was not on the Commission when testimony was heard or previous Commission votes regarding Petition No. 94-CO-06 were taken; that Commissioner Dupree has abstained from voting on other major quasi-judicial land use decisions; and asked if he will do the same regarding this item? Mayor Merrill stated that in order for Commissioner Dupree to respond, a motion will be necessary to suspend the rules that limit debate to two comments per Commissioner. On motion of Vice Mayor Cardamone and second of Commissioner Patterson, it was moved to suspend the rules that limit debate to two comments per Commissioner. Motion failed (3 to 2): Dupree, no; Cardamone, yes; Patterson, yes; Pillot, no; Merrill, no. Mayor Merrill asked if the intent of the motion was to undertake settlement discussions? Commissioner Pillot stated yes. Mayor Merrill called for the vote on the motion to undertake settlement discussions with exact language and an Administration's recommendation brought back at the regular City Commission meeting of May 6, 1996. Motion carried (3 to 2): Dupree, yes; Cardamone, no; Patterson, no; Pillot, yes; Merrill, yes. 12. NEW BUSINESS: APPROVAL RE: PROPOSED SETTLEMENT OF HATHAWAY VS. CITY OF SARASOTA MEDIATION - APPROVED AT $60,000 (AGENDA ITEM VIII-3) #3 (0540) through (0584) Vice Mayor Cardamone left the Commission table at 9:31 p.m. City Attorney Taylor stated that a lawsuit has been filed against the City by a party who was injured utilizing a City building; that a section of the lighting system fell on the claimant; that medical expenses for the claimant are in excess of $30,000; that a mediation settlement of $60,000 has been reached; that the City Administration supports settling the claim; that based on the facts and the potential liability in the case, the City Attorney's Office recommends settlement at $60,000. On motion of Commissioner Pillot and second of Commissioner Patterson, it was moved to approve settlement at $60,000. Motion carried unanimously (4 to 0): Dupree, yes; Patterson, yes; Pillot, yes; Merrill, yes. Vice Mayor Cardamone returned to the Commission table at 9:33 p.m. 13. REMARKS OF COMMISSIONERB, ANNOUNCEMENTS AND ITEMS FOR NEXT AGENDA - CITY COMMISSION/NEWTOWN TASK FORCE WORKSHOP SCHEDULED FOR APRIL 29, 1996, AT 7 P.M.: ADMINISTRATION TO FORWARD DETAILS REGARDING THE PER-SOUARE-FOOT COST OF THE GILLESPIE PARK SUBSTATION (AGENDA ITEM X) BOOK 39 Page 12998 04/01/96 6:00 P.M. s BOOK 39 Page 12999 04/01/96 6:00 P.M. #3 (0584) through (1011) COMMISSIONER PATTERSON: A. stated that at the March 18, 1996, meeting, the Commission voted to proceed with a proposal set forth by Laurence Saslaw to remove and replace exotics at North Lido Park; that although the proposal was subsequently withdrawn and essentially rescinded, reference to a conflict of interest in her voting on the item was raised in a recent article published in the Pelican Press; that permission has been granted for her to discuss the legal representation provided by her husband to Mr. Saslaw; that in 1990, her husband closed on the purchase of Mr. Saslaw's house and subsequently has answered a couple of questions regarding the easement held by the Lido Shores Property Owners Association which crosses Mr. Saslaw's property; that she did not feel the limit of the legal representation required her to declare a conflict; and wanted the Commission to be aware of the facts. Vice Mayor Cardamone stated that she referred people asking questions regarding this issue to the City Attorney for an explanation of situations under which a commissioner is required to declare a conflict; that an example provided to the individuals was that declaring a conflict of interest is not required when people who have made purchases from her retail establishment appear before the Commission. Commissioner Pillot stated that an individual asking his opinion was informed that he was certain a conflict of interest had not occurred as Commissioner Patterson has been extremely careful in properly declaring conflicts of interest during her entire tenure on the Commission. Mayor Merrill stated that he refused to participate in discussions regarding the issue. COMMISSIONER DUPREE: A. stated that he and Commissioner Pillot recently met with representatives of the Newtown area and another meeting will be scheduled to obtain further input. Commissioner Dupree requested that a Commission workshop be scheduled on April 29, 1996, to provide an opportunity for the Newtown Task Force to make a presentation on specific items, i.e., business development and continued residential upgrades. Commissioner Pillot stated that the meeting referenced was hosted by Dr. Arland Christ-Janer at the Ringling School of Art and well- attended; that excellent input was received; that Commissioner Dupree's request for a workshop is supported. Commissioner Patterson stated that a request for a workshop is supported; that she has interest in attending the second meeting with the Newtown representatives. Mayor Merrill stated that the Newtown Task Force should first meet with the City Administration to enable preparation of an Administration's recommendation and a finalized plan for presentation to the Commission. Commissioner Pillot stated that a workshop scheduled for April 29 could be cancelled if a finalized plan has not been developed by that date; that various Newtown representatives requested attendance only of the District 1 Commissioner at the second meeting; therefore, he will not be attending the second meeting. Mayor Merrill stated that there was a consensus of the Commission to have a workshop between the City Commission and the Newtown Task Force"scheduled for April 29, 1996, at 7 p.m. VICE MAYOR CARDAMONE: A. stated that Mayor Merrill will represent her seat at the April 22, 1996, Metropolitan Planning organization. B. stated that she will be one of four mayors attending a reception for the Sister city of Hamilton, Ontario, at which Prince Charles will be a special guest. C. stated that she previously suggested consideration of renovating a portable, possibly donated by the Sarasota County School Board, for use as a substation; that $100 as the per-square-foot cost of construction for a 1,200 square foot building seems excessive; and requested the Administration report back with details regarding the bid approved for construction of the Gillespie Park substation. Deputy City Manager Schneider stated that a report will be forwarded to the Commission. MAYOR MERRILL: A. stated that this is his last regular city Commission as Mayor; that chairing the meetings has been a privilege; and thanked the Commission for selecting him to serve as Mayor during the past year. 14. OTHER MATTERS/ADMINISTRATIVE OFFICERS (AGENDA ITEM XI) BOOK 39 Page 13000 04/01/96 6:00 P.M. BOOK 39 Page 13001 04/01/96 6:00 P.M. #3 (1011) through ( ) City Auditor and Clerk Robinson stated that the Community Housing Workshop is scheduled for Wednesday, April 3, 1996, from 4 p.m. to 6 p.m. Commissioner Pillot stated that he will be arriving late at the April 3 meeting. Commissioner Patterson requested that the Administration review the Charter to determine whether the Commission can reschedule to Tuesday a Monday regular Commission meeting which coincides with the NCAA college basketball finals and the college football championship game; and stated that the Commission often hurries through the agenda on those evenings. City Auditor and Clerk Robinson stated that the provision is not in the Charter; that the meeting dates were established by resolution, which can be amended. 15. ADJOURN (AGENDA ITEM XII) #3 (1065) There being no further business, Mayor Merrill adjourned the regular meeting of April 1, 1996, at 9:47 p.m. A DAVID MERRILL, MAYOR ATTEST: BilW E Rebenes BILLY EROBINSON, CITY AUDITOR AND CLERK