CITY OF SARASOTA Planning and Development Division Development Services Department MINUTES OF THE SPECIAL MEETING OF THE PLANNING BOARD/LOCAL PLANNING AGENCY June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Planning Board Eileen Normile, Chair Members Present: Damien Blumetti, Vice Chair Members Patrick Gannon, David Morriss, Kathy Kelley Ohlrich Planning Board Members Absent: City Staff Present: Mike Connolly, Deputy City Attorney David L. Smith, AICP, Manager, Planning Department Gretchen M. Schneider, General Manager, Development Services Miles Larsen, Manager, Public Broadcasting Karen Grassett, Senior Planning Technician I. CALL MEETING TO ORDER AND ROLL CALL PB Chair Normile called the meeting to order at 6: 00 p.m., and Planning Manager Smith [as Secretary to the Board] called the roll. II. CHANGES TO THE ORDER OF THE DAY 6:03:19 P.M. There were: no changes to the order of the day. 6:03:34 P.M. PB Chair Normile stated the Vice Chair had requested he be allowed to make a statement. PB Vice Chair Blumetti stated he wished to respond to the appellants response to South Palm Holding's motion to disqualify Planning Board Chair Normile and read a statement into the record (a copy of which is attached hereto). Attorney Lobeck requested an opportunity to respond which the PB did not grant. PB Chair Normile stated there was an article in the edition of the Observer that was published on this date and noted there was some incorrect information and a correction was being issued the next day. III. LAND USE ADMINISTRATION PUBLIC HEARINGS NOTICE TO THE PUBLIC: At this time anyone wishing to speak at the following public hearings willl be required to take an oath. (Time limitations will be established by the Planning Board.) A. Reading ofthe Pledge of Conduct B. Quasi-ludicial Public Hearings 1. Epoch Residences (605 S Gulfstream Avenue) CONTINUED FROM JUNE 4, 2019 SPECIAL MEETING): Appeal Application No. 19-APP-05, appealing an administrative decision Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 2 of 19 made by the Department of Development Services involving property located at 605 S Gulfstream Avenue, for the project known as the Epoch Residences. Appellants are appealing the approval of an Administrative Site Plan for an 18-story multi-family condominium building in the Downtown Bayfront (DTB) zone district with 23 residential units. (Lucia Panica, Chief Planner) 6:06:05 P.M. Attorney Connolly read Section IV-1901(g) of the City of Sarasota Zoning Code and noted the portion that reads "Prior to conducting the hearing, the Planning Board shall make a determination as to whether the entity or person who filed the notice of appeal is an "aggrieved person" as defined in this Zoning Code and the Planning Board may receive evidence on this issue. In the event the Planning Board determines that the appealing party is not an "aggrieved person," the Board shall not conduct the hearing on the application for site plan approval." was the purpose of tonight's discussions; stated the definition of an "aggrieved person" in the City of Sarasota Zoning Code is 1) The City, 2) the Applicant for a development permit, and 3) any person or entity which will suffer to a greater degree than the general public an adverse effect to a legally recognized interest protected or furthered by the land development regulations or the comprehensive plan."; noted 21 individuals and 1 corporation had filed an appeal; and stated the factual determination the Planning Board needed to make tonight is if any or all of the appellants would "suffer to a greater degree than the general public an adverse effect to a legally recognized interest protected or furthered by the land development regulations or the comprehensive plan." 6:08:54 P.M. Planning Manager Smith [as Secretary to the Board] read the Pledge of Conduct. 6:09:15 P.M. PB Chair Normile questioned Attorney Lincoln and Attorney Lobeck as to the purpose of tonight's meeting, noting there was some confusion as to the motions that were to be discussed. Attorney Lincoln stated a truncated version of his motion to dismiss and consideration of standing issues were on the table; noted his motion to dismiss addresses whether the SPARC organization as a matter of law can meet the test Attorney Connolly stated for the record; stated a portion of his motion to dismiss was his complaint that there could not be a mass appeal, however since City staff had confirmed in an email that a mass appeal could be done he was dropping his objection to standing based on the fact it was a mass group appeal; and stated he wished to move forward with establishing factually that the appellants meet the definition of an aggrieved person. Discussion ensued regarding if the motion to strike would be heard. Attorney Lincoln stated he felt that flushing out issues before the full hearing occurred would be beneficial and suggested moving forward with that motion. Attorney Lobeck stated there was nothing in the code or procedures that allowed for motion practice; said he felt it would be fruitful to have a discussion regarding the legal standing of the SPARC organization; Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 3 of 19 stated it would be inappropriate to strike a portion of his evidence before hearing it; and noted he had provided substantive responses. PB Chair Normile noted no-one was sure of the rules for this type of hearing. 6:13:53 P.M. Attorney Connolly stated that in an email from City Attorney Fournier to the PB Chair City Attorney Fournier stated "since there is no applicable statute, ordinance, or rule that prohibits an oral motion made before or during proceedings I think it has to be allowed"; and clarified by stating since iti is not prohibited or allowed: ithas to be allowed. Discussion ensued regarding oral versus written motions, authority of boards to establish operating procedures, the purpose of the motion to dismiss, advantages of addressing objections prior to versus during the full hearing, and expert testimony in a courtroom setting versus a quasi-judicial public hearing. 6:17:21 P.M. PB Member Ohlrich stated she would like to hear the motions this evening then hold the actual hearing at the next meeting. PB Member Gannon agreed. Vice Chair Blumetti questioned discussing the motion to dismiss, noting the expert witness was not present; and stated he thought the aggrieved person standing issue was the only item being discussed this evening. Discussion ensued regarding hearing the motion to dismiss before the quasi-judicial public hearing versus disrupting the public hearing every time an objection was raised; the ability to rebut testimony; the purpose of expert testimony; and the format for the meeting tonight. Attorney Connolly stated the PB could proceed however they wish with the exception of affected person status since the persons that applied for affected person status were not present this evening. PB Chair Normile suggested the motion to dismiss and the aggrieved persons standing be dealt with this evening then the PB could decide how to proceed once those issues were resolved. THE PLANNING BOARD TOOK A 5 MINUTE RECESS 6:26:28 P.M. Attorney Connolly administered the oath to all present who planned to speak this evening. PB Chair Normile requested all cell phones be turned off or silenced. 6:29:14 P.M. Discussion ensued regarding Attorney Lincoln's Motion to Dismiss. Attorney Lobeck noted he had distributed the case law relevant to both his and the applicant's arguments. Attorney Lincoln stated the issue was whether or not SPARC had standing; said Florida case law says representative organizations cannot be considered an aggrieved party unless the can establish its own interest in the matter, i.e. property rights; noted the case law Attorney Lobeck cited was not applicable because the definition of aggrieved person in that case was broader than the definition of an aggrieved person in the City of Sarasota Zoning Code and was applicable to a HOA that did have property rights; and stated SPARC is not a Neighborhood Association as defined by the City of Sarasota, is not a Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 4 of 19 HOA, their Articles of Incorporation state they are an interest group; and therefore they cannot be an aggrieved party. 6:36:11 P.M. Attorney Lobeck stated Attorney Lincoln was relying on bad law because the case law he cited preceded newer case law; said the newer case law allows for associational standing if a majority of its members could qualify on their own; said SPARC is a Neighborhood Association and the fact it does not meet the City's definition of a Neighborhood Association is irrelevant; stated the residents represented by SPARC do meet the definition of aggrieved person and therefore SPARC should be provided associational standing. 6:40:20 P.M. Attorney Lincoln responded that associational standing occurs when courts look at statutes that broaden standing; said administrative cases are based on the idea of substantial interests; noted you do not have to be an aggrieved person to bring a case under APA; stated the City specifically granted the Laurel Park Neighborhood Association standing SO that the Association can appeal under the overlay district; and concluded by stating SPARC does not have a legally recognized interest. PB Chair Normile questioned if the Planning Board is an administrative body. Attorney Lincoln stated they are an administrative quasi-judicial body under the City of Sarasota that operated under the ordinances and regulations adopted by the City of Sarasota as well as common law rights. PB Vice Chair Blumetti requested Attorney Connolly's opinion. Attorney Connolly stated he struggled with how a corporation that was just created this year and owns no real property can have any legally recognized interests. PB Member Gannon stated the PB was trying to assess what an aggrieved party is, and his understanding is an entity must suffer an adverse effect to a legally recognized interest and questioned if there were any legally recognized interests other than property. Attorney Connolly noted the rest of the sentence says "a legally recognized interest protected by the land development regulations or Comprehensive Plan, noting there could possibly be something other than property ownership, but he struggles to find what that would be. Discussion ensued regarding how the entity could suffer to a greater degree than the general public if it does not own land; the presumption that since the entity is comprised of potentially aggrieved persons the entity should also have standing; addressing the aggrieved person standing for the entity under the aggrieved person standing portion of the meeting; if the Zoning Code or Comprehensive Plan specifically states that the entity has to own property; the definition of - person";a and if the persons that make up the entity can still have standing as a person should the entity not be granted aggrieved person status. 6:52:59 P.M. PB Member Gannon requested clarification of whether the PB was voting on the motion filed by Attorney Lincoln or if they needed to make their own motion. Attorney Connolly Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 5 of 19 stated there is a Motion to Dismiss on the table and the PB needed to either make a motion to grant the Motion to Dismiss or make a motion to deny the Motion to Dismiss. PB Member Gannon made a motion to deny the Motion to Dismiss. PB Member Ohlrich seconded the motion. PB Vice Chair Blumetti stated the laws were ambiguous, noted the City of Sarasota was in the process of amending the Zoning Code and this issue was being addressed as part of that, and stated because of that he agreed with PB Member Gannon's motion. PB Member Gannon stated he made the motion because he wished to hear from the persons seeking aggrieved person status. PB Chair Normile clarified that a yes vote was a vote to deny the Motion to Dismiss. The motion passed 4/1 with PB Chair Normile voting no. 6:55:06 P.M. Discussion ensued regarding Appellant's Status as Aggrieved Person issue. Attorney Lobeck stated hel had submitted a binder the includes support documents for the status of each appellant and the document that was filed that initiated the appeal; stated eight of the appellants were available to testify this evening; noted the persons listed as numbers 10 through 10 and 24 to 26 on the list of appellants will not be participating and the others on the list are requesting affected person status rather than aggrieved; said the affected persons forms are included in the binder as well and persons that are both affected and aggrieved are identified; noted the list of persons living within 500' of the proposed development that were sent notices is also: included; questioned if the time limits included each person speaking; stated each person will make a presentation to the PB as to why they are adversely affected, how they are affected more sO than the public at large, and what their interest is that is advanced or protected by City Code(s) or the Comprehensive Plan; stated Section IV-506(4) was the principle foundation of the appellant's case, compatibility in particular; and concluded stating that any disqualification would be a violation of due process because the full case had not been presented yet. 7:03:16 P.M. Attorney Lobeck called Mr. Richard Ferrell, Vice President of SPARC and questioned if the following statements were accurate: he is Vice President of SPARC the Articles of Incorporation for SPARC state the purpose of the Corporation is to preserve and protect the character of the neighborhood located on S. Palm Avenue between Ringling Boulevard and Mound Street SPARC members are residents of S. Palm Avenue each member will make their own case and does Mr. Ferrell believe they are adversely affected more so than the public at large the site plan would have an adverse impact on the Corporation's ability to advance the specific purpose of SPARC, and the interests adversely impacted include compatibility with approximate lots Mr. Ferrell confirmed the statements were accurate. Attorney Lobeck questioned Mr. Ferrell as an individual asking: he resided in proximity to the proposed Epoch project Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 6 of 19 he owned the property where he resides he lives within 500 of the proposed Epoch project, and his application for affected person status states he is adversely impacted because the Epoch project is not compatible with the S. Palm Avenue neighborhood because there will be too much building on too small of a lot, which does not take into consideration the existing buildings Mr. Ferrell stated he was not opposed to a condominium project next door, he is opposed to one that would be incompatible with the neighborhood and the lifestyle of the current residents. Attorney Lobeck questioned if the pedestrian experience was included in those concerns. Mr. Ferrell stated there were a series of issues that included pedestrian experience, light, building mass, minimal landscaping, air flow between buildings, and 99% lot coverage. 7:07:45 P.M. Attorney Lincoln stated for the record that he was willing to stipulate that the statements of interest included in the affected person status applications and reflected in the documents submitted by Attorney Lobeck can come in as evidence to support the appellant' S claims sO that in the interest of time each one would not have to be repeated. Discussion ensued. Attorney Lincoln cross-examined Mr. Ferrell questioning: if SPARC had members and if the Articles of Incorporation has provisions for membership. Mr. Ferrell stated there were 31 concerned residents that live on S. Palm Avenue who feel that the project is incompatible with the existence along S. Palm Avenue are those 31 residents officers or directors of SPARC. Mr. Ferrell stated 4 of them were. are there any other officers of directors? Mr. Ferrell stated there were not. do the Articles of Incorporation provide for membership. Mr. Ferrell stated not per se Attorney Lobeck redirected and asked: ifSPARC was a not for profit corporation. Mr. Ferrell confirmed that was correct if every corporation was required to have members Attorney Lincoln objected stating that was a legal question the Mr. Ferrell was not competent to answer. Mr. Ferrell agreed he was: not competent to answer the question and questioned if aj person attends a church and makes donations are they a member. Attorney Lincoln stated not unless there is a formally adopted process for recognizing people as members. Attorney Lincoln showed Mr. Ferrell a document and questioned if it was the Articles of Incorporation for SPARC and ift the purpose stated is Corporation is to preserve and protect the character of the neighborhood located on S. Palm Avenue between Ringling Boulevard and Mound Street. Mr. Ferrell confirmed that was correct. Attorney Lincoln questioned if there were any provisions in the Articles of Incorporation that grant membership status or any other rights to any persons other than the named directors. Mr. Ferrell stated the issue was not addressed in that format. Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 7 of 19 Attorney Lobeck questioned if the officers and directors were: members of the corporation and lived within 500 of the proposed project. Mr. Ferrell confirmed both statements were correct. 7:12:33 P.M. Attorney Lobeck called Ms. Alice Nelson. PB Chair Normile asked if the PB members could ask questions. Attorney Connolly confirmed that was permitted. PB Vice Chair Blumetti questioned what Attorney Lincoln was getting at. Attorney Lincoln stated the definition Attorney Lobeck had used for Neighborhood Association talks about members; noted the City Code has a specific definition about what a Neighborhood Association must have, specifically to provide for membership for all who live in the neighborhood with qualification of what their views are; and stated SPARC is not a Neighborhood Association or a membership organization sO as a result the only interests SPARC can have are those interests of the four persons that are directors. Discussion ensued regarding the legal/functional relationship of the others to SPARC, where the definition of Neighborhood Association Attorney Lincoln used came from, the City's purpose for their definition of a Neighborhood Association, the criteria for a Neighborhood Association outside the City's definition, if SPARC was claiming to be a Neighborhood Association, and the relevance to these proceedings. 7:16:59 P.M. Attorney Lobeck questioned Ms. Nelson asking: where she lived. Ms. Nelson stated her family owns three condominium units at Royal St. Andrew do you live there. Ms. Nelson stated immediately adjacent, 5' away do you walk S. Palm Avenue. Ms. Nelson stated she is a cyclist and bikes and walks all over the City but doesn'twant to go south anymore; stated she is aggrieved as she is in fear for her life if there is a fire; said there will be no trees, no air, and no bike lane; and noted she is a member of SPARC Attorney Lincoln had no cross-examination questions. 7:18:43 P.M. Attorney Lobeck call Ms. Jane Bentley and questioned her as to: live in Royal St. Andrew? Ms. Bentley stated she did not however her family owns a condominium there, she spends four: months of the year there, her mother lives there, and she plans to retire there are you aggrieved with respect to the immediate and neighborhood incompatibility of the proposed Epoch site plan. Ms. Bentley stated yes due to a fortress being built in an area with big setbacks, open space and light and air that is walkable; stated she heard the rent for the rental apartment in her building will be reduced which is a sign that due to the wall that is proposed the property values have already been impacted. Are you able to testify more fully at the hearing. Ms. Bentley stated she was. Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 8 of 19 Attorney Lincoln had no cross-examination questions. Attorney Lobeck stated Mr. Varano was not present; the records show he lives within 500'; has stated inadequate setbacks will dominate S. Palm Avenue and Gulfstream Avenue; and will impose a walled-in canyon like affect that is incompatible with the unique residential corridor. Attorney Connolly pointed out that Mr. Lobeck had skipped Christine Otto. Attorney Lincoln noted Attorney Lobeck had just read from an affected person application; questioned if Attorney Lobeck would be introducing the documents into the record; stated it was highly problematic for Attorney Lobeck to read from a document, assert it is evidence and not have the document in the record for later; and offered again to stipulate all of the documents could be admitted to the record as evidence. Attorney Lobeck stated Attorney Lincoln want to stipulate that SO the information would not be heard. Discussion ensued. Attorney Lobeck offered the binder he submitted to be part ofthe record. Attorney Lincoln stipulated for the record that he agreed not to object on hearsay or any other grounds to statements that are: in the documents as support for standing, noting he was not stipulating information was adequate, just is evidence. 7:24:20 P.M. Attorney Lobeck called Ms. Christine Otto and questioned her as to: where do you own and reside. Ms. Otto stated she lives on Brink Avenue, lived on S. Palm Avenue until May 2019, and still owns on S. Palm Avenue what is the nature of use of your property on S. Palm Avenue. Ms. Otto stated she was renting her property and planning to move back to the area once the construction ends are you adversely affected by the construction in proximity to your unit. Ms. Otto said absolutely, the proposed project completely changes the feel of the neighborhood; the minimal setbacks give the feel of a street versus an avenue; and the fact the sidewalk must be moved closer to the street is a sign that the project is incompatible if the City gives away City right-of-way SO the sidewalk can be moved to allow for minimal plantings next to the building will you be adversely affected by the sidewalk being closer to the street allowing for less greenspace between the sidewalk and the street. Ms. Otto stated absolutely, she walks on the sidewalk with her children in a stroller and on bikes or scooters and wants to be as far away from the street as possible Attorney Lincoln had no cross-examination questions. 7:26:40 P.M. Attorney Lobeck called Ms. Cindy Lang and questioned her as to: where do you own and reside. Ms. Lang stated she lives and works at the Essex House and owns at the Royal St. Andrew how do you dispose of the unit at the Royal St. Andrew, rent? Ms. Lang stated she was not sure yet is the Essex House one building removed from the proposed Epoch. Ms. Lang confirmed that was correct is your unit within 500' of the proposed Epoch site plan. Ms. Lang stated yes Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 9 of 19 you state in your written materials that Epoch's mass and setbacks will create a walled-in affect that is incompatible with the existing residential. Ms. Lang stated she will be walking past the Epoch going from Essex House to Royal St. Andrew daily and noted she is already exposed to massive concrete that is the Echelon compared to the ambiance of S. Palm Avenue as a whole, do you agree the Echelon does and the Epoch will stick out like sore thumbs. Ms. Lang stated yes and noted those are not compatible with the area was Essex House given notice of the Echelon development. Ms. Lang stated they were not sO the Echelon should not be used as an example. Ms. Lang said it should not Attorney Lincoln objected, stated the testimony was completely irrelevant as to the standing issue, it is political grandstanding that is irrelevant. Attorney Lobeck stated it goes to being aggrieved. Attorney Lincoln stated one cannot be aggrieved by a different project. 7:29:16 P.M. Attorney Lobeck called Ms. Barbara Campo and questioned her as to: where do you own and reside. Ms. Campo stated resides at 500S. Palm Avenue which she has owned for 14 years where is that situated in relation to the Epoch. Ms. Campo stated less than 500, one building past the Royal St. Andrew you have indicated in your written materials the looming mass and inadequate setbacks will destroy the ambiance of S. Palm Avenue. Ms. Campo stated that was correct does that impact the compatibility with her home. Ms. Campo said absolutely is the proposed Epoch site plan compatible with the neighborhood. Ms. Campo stated absolutely not if modification were made to the 99% lot coverage and the setbacks, would that improve the compatibility with her home and the neighborhood. Ms. Campo stated it could Attorney Lincoln cross-examined Ms. Campo, asking: will the lot coverage of the Epoch keep you from getting into your driveway in any way. Ms. Campo said it would be physically impossible will the lot coverage of the Epoch physically interfere in any way with her ability to use her condominium unit Attorney Lobeck objected stating the question was too broad, questioning what "use" and "interfere" mean. Attorney Lincoln responded that Ms. Campo said compatibility, noted the definition in the Comprehensive Plan that the appellants want to use starts with "a compatible use will not interfere with or impair other uses", / and said he was trying to determine how you would say the things you are complaining about on the Epoch will impair your use of your property. Ms. Campo said she did not know what Attorney Lincoln meant by "use". Attorney Lincoln continued his cross-examination, asking Ms. Campo do you live in the property. Ms. Campo said it was the whole neighborhood, noting walking down the sidewalk is "using". Attorney Lincoln stated the sidewalk: is not your property. Ms. Campo responded it is her neighborhood. Attorney Lincoln again Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 10 of 19 pointed out the sidewalk was not her property. Attorney Lobeck objected stating Attorney Lincoln was arguing with the witness. PB Chair Normile asked if the Planning Board Members had any thoughts on Attorney Lobeck's objection. PB: Member Ohlrich stated iti is only 7:30 pm, she understands that the purpose is to get information on the record; questioned if this is necessary; noted there is al long list of people the City Auditor & Clerk's office says lives within 500 ofthe proposed structure, which makes them affected parties; questioned if it was necessary to go person by person and have Attorney Lincoln object to what Attorney Lobeck is putting on the record sO Attorney Lincoln can get his objections on the record; and again questioned if the PBI had to do this. Attorney Connolly said the PB did have to do this. Attorney Lincoln stated he had asked a few people a few questions; said he was trying to limit his cross- examinations to the most relevant issues; noted he had offered to accept the evidence that was submitted in writing and Attorney Lobeck had declined; stated he was going out of his way to not abuse the cross examination process; said he was trying to get the appropriate. facts on the record for future discussions; and noted Attorney Lobeck was the one who had put 22 people on the list. PB Member Ohlrich said to speed it up. 7:35:45 P.M. Attorney Lobeck called Dr. Kathy Ellis and questioned her as to: is your name Kathleen Ellis. Dr. Ellis stated yes, Dr. Kathleen Ellis where do you own/reside. Dr. Ellis stated she has owned and resided at 555 S. Gulfstream Avenue for a little over two years do you find the Epoch site plan incompatible with the character of the neighborhood and incompatible with your full use of your home and neighborhood. Dr. Ellis stated absolutely, that when she looked at her unit in was on an avenue and was green, she knew something would be built but had no clue it would be a huge building with a wall facing S. Palm Avenue; said if the building is built as proposed it would be completely incompatible with the character of the street, which is no longer an avenue in addition to living sO close do you tend to walk S. Palm Avenue in the area where the Epoch would be built. Dr. Ellis stated every day what do you enjoy about that and the use of your property. Dr. Ellis stated it was getting worse and worse, she has a hard time getting down to US 41 because the area is SO crowded; going the other way towards downtown is delightful due to the shade trees, shops, etc.; and said she has an orthopedic issue that makes it difficult for her to walk on the sidewalks that are there if the City gives away City property and moves the sidewalk towards the street, would the fact the sidewalk is closer to the street adversely affect your full use and enjoyment of your neighborhood. Dr. Ellis stated absolutely Attorney Lincoln cross-examined Dr. Ellis, asking: you said you walk north on Palm Avenue towards downtown and noted he was trying to figure out why she said she would be adversely affected by the sidewalk being moved. Dr. Ellis stated she often walks up to US 41 and also to go to Selby Gardens do you walk the other way also. Dr. Ellis stated even more so because it is prettier. sO you walk by Tessera. Dr. Ellis stated absolutely Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 11 of 19 does the fact Tessera also moved the sidewalk towards the curb at that point adversely affect you in any way. Dr. Ellis stated she was unaware of that fact 7:39:42 P.M. Attorney Lobeck concluded by stating that since Attorney Lincoln objected to him reading from the other written materials submitted he would turn the PB's attention to persons ten through nineteen, skip 20 to 23 since not offering as aggrieved persons, and pick up with 24, 25 and 26; stated affected person applications for those are in the materials submitted, noted they used the City's affected persons form since there is no form for an aggrieved person status application, and discussed the difference. Attorney Lincoln noted that the affected person status applications do not become part of the formal record until the hearing occurs which is why he stipulated that he did: not object to those being made part of the record at this time, stated he had no objection to Attorney Lobeck reading statements into the record, he wanted to be sure the record was created properly, and said he had no objections to Attorney Lobeck being afforded additional time to read the statements into the record. Attorney Lobeck stated he just would present each name in the record, indicate the proximity of each person and the manner in which each person would be aggrieved; strongly objected to the representation that as long as you can get in and out of your condominium unit your use is not affected; said he believes he has gone well and above what is required to demonstrate the appellants are aggrieved persons under the Zoning Code; and stated he would answer any questions. PB Chair Normile questioned if Attorney Lobeck was representing that the persons listed as numbers two through twenty-six were the aggrieved persons. Attorney Lobeck stated numbers one through nineteen, then skip 20-23, and pick up with 24, 25 and 26; stated he had requested two hours for the hearing but has been informed it has been truncated to 90 minutes; and stated if he is only going to get 90 minutes he wanted to drop four of the aggrieved persons sO that they could speak as affected persons. PB Chair Normile questioned what Attorney Lobeck was referring to. Attorney Connolly stated page two of the information he submitted at last week's meeting says Attorney Lincoln will have 90 minutes to present his case, the City will have 30 minutes to present their case, then the appellants will have 90 minutes to present their case. Attorney Lobeck stated the issue needs to be discussed now since if he only gets 90 minutes, in that portions of the proceedings have been segregated such that in the principle evening of the hearing there will be more time than was originally anticipated, the 90 minutes was in the context of everything being! heard in one evening, and now there they have more time and have very substantial expert witness testimony to present and the testimony of the people they just heard from tonight, noted tonight was a Reader's Digest version of that testimony, and the legal arguments he wants to present at the beginning and end, he simply can't fit everything into 90 minutes. Attorney Connolly noted Attorney Lobeck had said quote "going to limit him to 90 minutes" and asked the PB members if any applicant had ever been granted 90 minutes. The PB members agreed that had never occurred before. Attorney Connolly stated given Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 12 of 19 that he did not feel 90 minutes is a limit. Vice Chair Blumetti questioned why the discussion regarding time limits for the public hearing were being discussed given the PB was still discussing aggrieved person status. Attorney Connolly stated it was because if Attorney Lobeck wants a decision not because if he can't get more than 90 minutes he wants to: remove some of the people from the aggrieved persons list SO they can testify as affected persons and can therefore speak for 51 minutes each under affected persons rather than within the 90 minutes; noted people can't be both aggrieved and affected persons; and stated he did not know if Attorney Lincoln would object to changing the status of the persons at this point, but he thinks that is why Attorney Lobeck wanted it discussed at this point. PBMember Morriss requested Attorney Connolly speak to the value of quantity. Attorney Connolly responded that when the issue goes to the Circuit Court the Circuit Court will review the entire record and then three things: 1) whether the City provided due process; 2) whether the City applied the correct law; and 3) if competent and substantial evidence was in the record that supported the decision the City made; stated this issue goes to due process, if someone's time is limited they will raise that as a due process issue; noted it goes back to his point that at no other time has anyone been given 90 minutes; and stated he finds it hard to believe that timeline limits the ability of either party to make their case. Discussion ensued. PB Vice Chair Blumetti stated the PB has to establish there are aggrieved persons, sO why talk about a public hearing if they have not established there are aggrieved people; said it is inappropriate to discuss the issue until after and motion and vote has occurred on the aggrieved person status. PB Chair Normile stated is was not inappropriate because Attorney Lobeck has decisions to make. PB Vice Chair Blumetti again stated the issue should be discussed after a motion and vote on the aggrieved person status. Discussion ensued regarding the potential impacts of establishing some people as aggrieved then changing the status to affected person. Attorney Lobeck stated he hereby withdraws aggrieved persons/appellants numbers 13 (Pickard), 9 (Dr. Kathleen Ellis), and 18 & 19 (Edward and Harriet Safran); and stated those people would appear as affected persons instead. PB Chair Normile questioned if she understood correctly that Attorney Lobeck would not be calling the others that were listed but rather would rely on the evidence in the record. Attorney Lobeck stated the others were not present SO he was resting on the evidence in the record; noted a lot of the information is repetitive, some of which he had recited this evening; stated he was speaking as the Attorney and Agent for the appellants and it is the position of all the other appellants and proposed aggrieved persons that they will be adversely affected by the site plan as it is presented before the PB due, to incompatibility with their homes and neighborhood; because of the sparsity of setbacks, the moving of the sidewalk closer to the street, massing of the building, the large wall they would be facing while attempting to enjoy the pedestrian experience, and all of the other reasons the PB would hear during the presentation of the full case in terms of shadow and light, impaired views, etc. Discussion ensued regarding the next steps. Attorney Connolly stated Attorney Lincoln has 30 minutes to present his case as to why the people are not aggrieved. PB Member Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 13 of 19 Morriss questioned if the PB decided the persons are aggrieved do they have to indicate why. Attorney Connolly stated the PB had to find that those persons suffer to a greater degree than the public an adverse effect to a legally recognized interest protected or furthered by the land development regulations or the comprehensive plan; and stated the record has to be prepared as if the issue will go before the Circuit Court, the Circuit Court will have to find there is competent and substantial evidence to support the reasoning, sO therefore the PB should state the support for the their reasoning. PB Member Ohlrich questioned if the PB had to differentiate between affected persons and aggrieved persons. Attorney Connolly stated the PB only needed to apply the definition of aggrieved person. Discussion ensued regarding how to differentiate between aggrieved and affected persons. 7:55:35 P.M. Attorney Lincoln stated the only code provision the appellants had cited was Section IV- 506(4); noted the portion that talks about whether it would mitigate or improve the effect on adjacent or nearby properties has to mean adverse effects; said the definition of compatibility in the Comprehensive Plan is relevant; said compatibility does not mean aesthetically pleasing, it means lack of ability of other people to use their property; discussed legally recognized interest noting that means is there a private nuisance which is significantly: interfering with ability to actually use and enjoy their property; said legally recognized interests are specifically created by an ordinance, statute or contract; said legally recognized interests include access to property not be interfered with, right to use property, right to protect against noxious uses coming into neighborhood; noted case law was created between the 1920s and 1940s when gas stations werel being built in residential areas and it could be demonstrated that fumes hurt property values; and said the character of the neighborhood is not a legally protected right. Attorney Lincoln continued stating the existing Zoning Code was adopted in 2002 and the area was designated in 2004 as Downtown Urban Mixed Use General; noted when that Code was adopted the area was rezoned to Downtown Bayfront, and when the City rezoned the area they determined that the uses, densities and intensities permitted within that zone district were compatible and appropriate for the entire area; stated the area residents have a legally protected interest in ensuring new development complies with applicable laws; noted the proposed Epoch complies with setback, building coverage, landscaping and buffer requirements; said the appellants have not identified anything that is actually cognizable harm to a legally protected interest; pointed out the reason an aggrieved person is different than an affected person is an appeal by aggrieved persons is intended to protect people whose legally recognized interest will suffer some kind of harm; stated additional issues with the evidence presented by the appellants include those persons that completed an affected person form without a statement as to how they are aggrieved, Attorney Lobeck's generic statement that all of the area residents will be adversely affected by the changes to the character of the neighborhood; stated the appellant's rendering of the project was inaccurate; stated that the City Commission decided what the character of the neighborhood would be when it adopted the Downtown Code and rezoned the property; noted two other developments in the area meandered the sidewalks away from the property line; stated there is no claim that the Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 14 of 19 proposed Epoch will actually impair the appellant's S use of property, will harm them in their daily routines, will cause flooding, or will interfere with use of driveways; and concluded that the appellants have not established the requisites to be aggrieved under that standards set out in the Code and therefore the Planning Board must find that the appeal cannot go forward. THE PLANNING BOARD TOOK A 10 MINUTE RECESS 8:26:10 P.M. Attorney Lobeck presented his argument that appellants have standing stating Attorney Lincoln had incorrectly interpreted Section IV-506(4); said the Planning Board must find if there are ways in which the mass, bulk, lot coverage, setbacks and other factors can be changed to mitigate or improve the effect of the development on adjoining and nearby properties and on the community; noted his clients have not presented their case yet and in doing SO will provide facts on how the area residents are adversely affected; stated Section IV-506(4) is an overlay with minimum requirements that the Planning Board, staff and the City Commission must decide if there are ways the proposed development can be changed to mitigate or improve the effect of the development on adjoining and nearby properties; said when Attorney Lincoln read the definition of compatibility in the Comprehensive Plan he had not included the portion that says compatibility varies from neighborhood to neighborhood and factors to be considered include if the proposed development can exist in harmony with the surrounding area; suggested Section IV-1005 was not applicable to the Downtown Bayfront zone district because the Comprehensive Plan says new development or redevelopment must be particularly sensitive to adjacent and nearby uses to ensure functional and aesthetic compatibility; stated City staff is reluctant to apply Section IV-506(4) and developers are agitated that this appeal has been brought forth because the Planning Board and/o or City Commission might follow the requirements of IV-506(4); acknowledged the language is subjective but has to be due to requirement that there be a site by site analysis; said the appellants were not asking for a favor, 1 they are asking the Planning Board to follow the law by enforcing the Code; stated as the attorney for the appellants he had testified as to how all of the area residents are adversely affected, even those that did not indicate sO on their affected persons form; stated Planning Board must consider Section Iv-506(4) as a minimum and modifications are required to make the proposed Epoch compatible with the neighborhood; noted there are other standards in Section IV-506(4) that apply and their expert witness will elaborate on those; and concluded by stating the appellants have proven they have standing with no question. PBI Member Gannon requested Attorney Lobeck restate for the record the Comprehensive Plan sections he was reading from. Attorney Lobeck stated he did not know the specific section however the Downtown Bayfront zone district verbiage he cited was included in the Future Land Use Chapter. Attorney Lincoln stated he had the information and noted that it was located on page LU-66. Attorney Lobeck stated he did not have the specific citation for the definition of compatibility but he thought Attorney Lincoln had the information in one of his citations; cited Objective 2, Action Strategy 2.4 that says land use regulations must focus on compatible infill and redevelopment needs that enhance the neighborhood character. Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 15 of 19 8:38:58 P.M. Attorney Lincoln presented his argument that the appellants do not have standing stating Attorney Lobeck is contending that the appellants have a legally protected interest that is created by the regulations that they contend protect and further their legally protected interest, and noted one must have a legally protected interest first; stated the appeal process is meant to be restrictive sO a neighbor can't say they are adversely affected because they don't like the looks of a building which is all the appellants have provided as evidence; asserted that Attorney Lobeck contends Section IV-506 can be invoked as a free-standing license to say anything I don'tl like I will subjectively say is an adverse effect that has to be fixed with no parameters; stated it is clear the appellants theory is that since other buildings on the street have landscaping between the sidewalk and the building the Epoch must as well or it will be incompatible; noted the definition of compatible is not that it is different; stated the appellants have not identified any real adverse effects to a legally recognizable interest; said the appellants claim that the Epoch is not sensitive to adjacent and nearby uses because of the 99% building coverage, zero setback along Palm Avenue, and other things they don't like rather than because there is some actual harm to a legally recognized interest; stated the problem is with the codes, not the Epoch project; noted the complaints are the Epoch project are not a compatibility issue but rather a community character issue; said the Epoch project implements the Downtown Code; stated Section IV-506 when properly interpreted cannot create the kind of interest they are talking about; said the appellants cannot complain that they are affected more than the community at large because if affects the community character; and concluded by stating the Planning Board must deny standing. 8:48:25 P.M. Attorney Lobeck presented his rebuttal stating the law says every part of the Code has to be construed to give it meaning; said Section IV-506(4) says ruling agency is to determine if setbacks, lot coverage, buffers, etc. can be change in order to mitigate or improve the effect of the development on adjoining and nearby properties, not the community as a whole which is what gives the appellants standing and the Planning Board cannot disregard that; stated combined the codes create a collaborative process that is sensitive to the neighbors and respectful to the developer; stated City staff rubber stamps development plans rather than applying Section IV-506 in a meaningful way; said the appellants will provide specifics at the public hearing; and concluded by stating it was time the City started enforcing the Code. PB Vice Chair Blumetti noted the portion of Section IV-1901 that talks about aggrieved persons does not say Section IV-506 can be used to establish aggrieved persons. Attorney Lobeck stated IV-1901 says must be an interest that is protected by a Code or Comprehensive Plan. PB Vice Chair Blumetti noted Section IV-506 must be considered when reviewing a site plan, not when establishing aggrieved person standing. Attorney Lobeck said the appellants must show three things: they are in proximity to the proposed development, are. adversely affected, and are adversely affected as to an interest protected by a Code or Plan, which is what leads into Section IV-506(4). PB Vice Chair Blumetti questioned what the purpose of the appeal was. Attorney Lobeck stated the Planning Board has three choices under IV-506(4): approve, approve with changes or conditions, or disapprove; said the appellants were asking that the site plan be disapproved; noted the Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 16 of 19 hearing will be a de novo hearing; stated the appellants were asking the site plan be disapproved because it does not meet the standards in Section IV-506(4); and stated the appellants will be requesting reasonable modifications, particularly in regard to setbacks. PB vice Chair Blumetti questioned if the appellants were attempted to act as a legislative body to determine what the setbacks should be on this particular property. Attorney Lobeck stated they were asking that the letter of the law as it is written be applied. Responding to a request from PB Chair Normile Attorney Connolly read the definition of aggrieved person again. PB Member Morriss asked Attorney Connolly if a project is deemed compatible if it complies with the Zoning Code. Attorney Connolly stated that was correct. PB Member Ohlrich asked Attorney Lobeck to respond to that. Attorney Lobeck stated there is the Code and the Comprehensive Plan; said the Zoning Code includes Section IV-506(4) which requires the Planning Board modify the site plan as needed in order to mitigate or improve the effect of the development on adjoining and nearby properties; said the Planning Board should not look and minimums or maximums but the context of the project with the neighborhood and adjoining property owners; stated the appellants were bringing the appeal to the Planning Board in hopes that they will enforce the Code for the sake of the people next door, the entirety of South Palm Avenue, and the community as a whole; and reiterated it is important that the Code be enforced. PB Chair Normile questioned if loss of value and full use and enjoyment are legally recognizable interests. Attorney Connolly responded those can be and noted under the law neither the developer nor the adjacent property owners are entitled to the most intensive use of their property. PB Vice Chair Blumetti questioned if Attorney Lincoln had an example of a legally recognizable interest other than setbacks. Attorney Lincoln stated there are times one can look at a code and see that the code granted a neighbor as well as a developer a legally recognized interest; said an example would be where there is a standard that is clear such as a provision that a driveway has to be 15' from the property line, the property owner has a right to know their neighbor will not intrude on that; or if there is a provision that establishes a view corridor interest by establishing a specific height to preserve views that could create a legally recognizable interest because it is clear what the intent of the code is; and said if a code is open to interpretation a legally recognizable interest is not created. Attorney Lobeck responded stating Attorney Lincoln had not cited any case law that says it is unconstitutional to have a City Code that says what Sarasota's Code says, which is you start with the minimums then look at the project in context with the neighborhood and modify the project to make it fit; and stated the Epoch site plan is a classic example of the Code not being enforced. PB Chair Normile stated aggrieved persons is what is being discussed. PB Member Gannon questioned if a legally recognizable interest is created by the Code and Comprehensive Plan combined or just one of those. Attorney Connolly stated either could. PB Member Gannon questioned if the right for a developer to build to the lot line is established by the Code can the Comprehensive Plan establish a different legally recognizable interest. Discussion ensued. Attorney Lincoln noted there are instances where staff had pushed for modifications and cited the Woman's Exchange where the Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 17 of 19 number of trips to a loading zone were limited in order to limit any adverse impacts to the surrounding neighborhood; said staff looks for site specific reasons why building to Code would have an adverse impact; stated the Epoch project represented that because staff required easements and construction agreements with the neighbors to ensure no problems were created by building to the lot line; and noted that is done where specific, identifiable reasons why allowing someone to build out everything would have an identifiable adverse effect. 9:12:23 P.M. Attorney Connolly stated the next step is for the Planning Board to make a determination as to standing; and noted there is one entity and seventeen individuals that are seeking aggrieved person status. Discussion ensued. PB Chair Normile stated the individuals that live at 555 S. Gulfstream Avenue have a legally recognized interest in the loss of value, noting that an individual had testified to that. Discussion ensued regarding the distance between 555 S. Gulfstream and the Epoch project. Attorney Lincoln stated no one that is qualified to testify as to loss of value had testified that property values will be impacted, just al hearsay comment that the cost of the rental apartment on the ground floor of the Royal St. Andrew would have to be reduced; and noted the Royal St. Andrew was not an appellant. Attorney Lobeck stated he has an expert witness that will provide compelling testimony and evidence when that level of detail is discussed at the hearing. PB Vice Chair Blumetti stated proof of loss of value needed to be entered into the record. Attorney Connolly stated ifsomeone is going to testify as to value that person must be either the owner of the property or a qualified expert; and noted he had seen neither. Discussion ensued regarding if the appellants felt they were aggrieved because ofthe particular building that is being proposed or by any building being constructed on the property. Attorney Connolly emphasized that Attorney Lobeck has the burden of proof to prove his clients are aggrieved and the Planning Board must decide if the definition of aggrieved in the Zoning Code has been met. Attorney Lobeck stated he will provide proof at the hearing, noting tonight was just to determine aggrieved person status. PB Chair Normile noted the appellants must prove they are aggrieved more than the general public. 9:20:48 P.M. PB Vice Chair Blumetti made a motion to find the appellants are not aggrieved persons, individually or collectively. PB Member Morriss seconded the motion. Speaking to his motion PB Vice Chair Blumetti stated his reasons were: 1) Section IV-1901 does not refer back to Section IV-506; being 500 away does not give aggrieved person status, residents are affected but not aggrieved, the burden of proof was not met; and 3) as it relates to compatibility the project is residential in a residential neighborhood which is consistent, the setbacks and moving the sidewalk do not make it incompatible. Speaking to his second PB Member Morriss stated there is a flaw in the Code, if the Code had been authored properly there would be no need for tonight's meeting; and stated he did not hear any grievances regarding a protected right. Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 18 of 19 PB Member Ohlrich stated the persons that filed for aggrieved person standing may not like the project more than the general public however she agrees they have failed to identify an adverse effect to a legally recognized interest that would qualify them as aggrieved persons. PB Chair Normile state she felt there is a compatibility issue and she wishes the Planning Board could hear the case however she can't find that any of the individuals had satisfied the requirements for aggrieved person standing; stated she believes if the case went to the appellate court it would be thrown out; said if aggrieved person standing can't be met there is no reason to move forward; noted she wished they could move forward because compatibility needs to be looked at tremendously and the Code needs to be looked at tremendously and immediately; and said she can't find it today. The motion passed unanimously (5/0) Attorney Connolly announced that the meeting scheduled for 6/18/19 at 5:00 p.m. is cancelled. PB Vice Chair Blumetti stated there are clearly issues with the Zoning Code that need to be addressed and questioned what the process and timing for that would be. Discussion ensued regarding previous attempts to revise Section IV-506 of the Zoning Code. PB Chair Normile stated she would like to see Attorney Lincoln as well as other land use attorneys testify before the City Commission regarding what they see as issues with the Zoning Code; said there are serious problems noting maximum development of aj parcel is not always compatible; and stated the Administrative approval process was to be discussed at the next City Commission meeting. Attorney Connolly stated at the last City Commission meeting the City Commission authorized staff to work on fixing the problems on South Palm Avenue related to setbacks and non-residential uses; said going back to the requirements before the 2004 downtown rezoning occurred would be considered and noted compatibility would be part of that. PB Chair Normile reminded the PB: members of the 7/1/19 report to the City Commission regarding code enforcement. IV. CITIZEN's INPUT NOTICET TOTHE PUBLIC: At this time Citizens may address the Planning Board on topics of concern. Items which have been previously discussed at Public Hearings may not be addressed at this time. (A maximum 5- minute time limit.) 9:29:41 P.M. Ms. Susan Chapman appeared and stated she lives within 500 of Selby Gardens; said a statement was made at the 6/12 Planning Board meeting that there was untoward conduct by the area residents; noted at the 6/4/19 Planning Board meeting there was a discussion regarding the need for the full Planning Board to be present for the public hearings regarding Selby Gardens; said she discussed the availability of the affected persons with Director Cover and asked that the hearings be scheduled after school started; said subsequently the neighbors sent emails to thel Planning Board members regarding the dates for the hearings; said the neighbors want a fair hearing which requires the Comprehensive Plan Amendment public hearing to occur prior to the public hearings on the other related Minutes of the Special Planning Board Meeting June 13, 2019 at 6:00 p.m. in the Sarasota City Commission Chambers Page 19 of 19 development applications; noted if the Comprehensive Plan Amendment is not approved the other related applications would become irrelevant; and thanked the Planning Board members for their service. Attorney Connolly stated he and City Attorney Fournier had discussed the procedures for the public hearings and City Attorney Fournier was working on a memorandum outlining the process; and said he thought the applications would all be heard together at the Planning Board meetings and the legislative and quasi-judicial would be separated at the City Commission hearings. V. PRESENTATION OF TOPICS BY STAFF Items presented are informational only (no action taken). Any issue presented that may require future action will be placed on the next availableagenda for discussion. There were no topics by staff VI. PRESENTATION OF TOPICS BY PLANNING BOARD Items presented are informational only (no action taken). Any issue presented that may require future action will be placed on the next available agenda for discussion. There were no topics by Planning Board members VII. ADJOURNMENT The meeting adjourned at 9:35 P.M. hu nl Steven R. Cover, Planning Director EILEEN W.I NORMILE, CHAIR Planning Department Planning Board/Local Planning Agency [Secretary to the Board] 06.13.2019 Special Planning Board Meeting Lansas eloece Vice- Chait Re: Appellants' response to South Palm Holdings Motion to disqualify Planning Board Chair Normile Regarding Mr. Lobeck's comments that "I make my living in the development industry,' and "I am personally involved economically in the development business,' . I would like to submit clarifications for the record. Although I am an architect, my focus is in the residential sector with the end user being the private property owner. During my decade tenure with Guy Peterson I was involved in only a handful of commercial projects, where we typically served as the Design Architects. Since opening my own firm in 2017, I have never directly worked for a developer. I do not have professional or personal relationships with any developer that conducts business in front of the Planning Board; and I have never personally met Mr. Dipinto inside or outside of the commission chambers. In the two years that have served on the Planning Board, have never had to recuse myself from a public hearing because of a conflict with a project or developer. To be accused of having an inherent bias because of a perceived self-interest with developers or development projects is ludicrous and borders on libel. The implications of the statements made by Mr. Lobeck are twofold: that - - work for developers and that I am incapable of ruling based on the facts and circumstance of an issue. Ireview each project that we receive under the applicable criteria, absent of any bias or special considerations. Reputation and professional ethics are of the upmost importance to me. Mr. Lobeck, recognize and respect your position to defend Chair Normile. However, I would greatly appreciate that you understand the substance of my practice before making reckless and potentially damaging comments about my professional conduct. 1